This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Minkowitz v. Israeli, A-2335-11T2, 2013 WL 5336454 (N.J. Super. Ct. App. Div. Sept. 25, 2013), the parties agreed to submit a divorce and custody dispute to binding arbitration. Prior to conducting the arbitration, however, the parties entered into… Continue reading Mediator cannot act as arbitrator
The American Arbitration Association has adopted new rules for commercial arbitration effective October 1, 2013. They include a requirement that there shall be a mediation in all cases where the claim exceeds $75,000 unless one of the parties opts-out of the requirement. The complete rule is as follows: R-9. MediationIn all cases where a claim… Continue reading AAA adopts new rule requiring mediation unless a party opts-out
When court approval of a settlement is required, litigants frequently use mediation to negotiate the settlement, because if successful, the mediator can then provide assistance in obtaining court approval. In the context of a class action, for example, a recent Ninth Circuit case cited the use of a mediator as evidence that the settlement was… Continue reading Using mediation to support the fairness of a settlement
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Benes v. A.B. Data, Ltd., 2013 WL 3838112 (7th Cir. 2013), the plaintiff filed a Title VII claim against his then current employer alleging sex discrimination. During the mediation, at a point where the mediator had the parties in… Continue reading Employee fired for conduct in a mediation
This article was originally published by the Illinois State Bar Association’s Illinois Bar Journal. While mediation is supposed to help avoid litigation, the parties sometimes end up in a dispute over the mediation itself. Practitioners thus need to understand their mediation agreements, which can play a key role in resolving such disputes. Here’s a primer.… Continue reading Understanding Mediation Agreements
Don’t smirk at the facts. Really. There is an interesting legal issue here. THI of New Mexico at Valle Norte v. Harvey, 2013 WL 235349 (10th Cir. 2013), begins when a resident of a nursing care facility suffers a priapism, which is a painful erection lasting more than four hours. This led to two surgeries,… Continue reading Can conduct in a mediation be the basis for an abuse of process claim?
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. It is increasingly common to find arbitration clauses that require the parties to first mediate a claim before proceeding to arbitration. Furthermore, courts have not hesitated to enforce such clauses by ordering parties to mediate before arbitrating. E.g., Clarke’s Allied, Inc.… Continue reading Arbitrator should decide if mediation requirement has been met
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. There is a large and well-developed body of law addressing the question of how a court should determine whether a dispute falls within the scope of an arbitration clause. As commercial agreements more frequently include a requirement that the… Continue reading Mediation and the Federal Arbitration Act
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. While mediation is intended to end disputes, there are unfortunately occasions when the mediation leads to an attempt to bring a new claim based on conduct that occurred during the mediation. In Hydroscience Technologies, Inc. v. Hydroscience, Inc., 2013… Continue reading When can conduct in mediation be the basis for a tort claim
In Richard v. Spradlin, 2013 WL 1571059 (E.D.Ky. 2013), the mediation failed, and the court knew just who to blame. The defendant was sanctioned for multiple acts of bad faith. First, upon arrival, the defendant’s representative insisted the he needed several hours to consult with his counsel before he could participate in the mediation, which… Continue reading Top 10 List of Bad Mediation Behavior