I recently reported on a decision in which a defendant argued that a prevailing plaintiff’s statutory fee award should be limited based on the fact that the plaintiff eventually won at trial less money than had been offered by the defendant in mediation. The trial court rejected this because offers in mediation are privileged and… Continue reading Part II: Are there consequences to turning down an offer in mediation?
The American Arbitration Association has a new clause builder tool that will construct a sample contractual provision requiring both mediation and arbitration, or just arbitration, of all future disputes: ClauseBuilder™ Tool
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Fogh v. Los Angeles Film Schools, 2012 WL 6604709 (Cal.App. 2012), the plaintiff won a $13,972 judgment plus a statutory fee award of $96,800. On appeal, the defendant argued that the plaintiff should not get any fees incurred… Continue reading Are there consequences to turning down an offer in mediation?
Based on a number of recent cases, it seems that more and more parties are putting a mediation requirement into their arbitration clauses. Such mediation clauses typically provide that a party with a dispute arising out of the contract must first mediate as a condition precedent to arbitration. In addition, like arbitration clauses, the contracts… Continue reading Contractually Required Mediation Before Arbitration
Is paying the mediator the lawyer’s responsibility, the client’s, or both? Many mediation agreements are surprisingly vague on this, stating only that the “parties” shall pay a certain amount. In National Arbitration & Mediation v. Feinstein & Nisnewitz, P.C., 2012 WL 5456362 (Sup.Ct.N.Y 2012), a mediation firm sued the law firm that hired it for… Continue reading Who Pays the Mediator?
There are an increasing number of reported cases in which the parties end up fighting about what occurred in a mediation. These disputes include whether a settlement was reached, what the terms of the settlement were, and whether one party acted in bad faith. It is logical in such situations to turn to the neutral… Continue reading Mediator’s Reports
A successful mediation usually results in a list of the material terms of a settlement, with the formal papers to be drafted at a later date. Any such list should not only include the fact that the plaintiff will provide a release, but also whether the release will be general or limited to certain specific… Continue reading Mediation and the Scope of a Release
In a dispute arising out of two suppliers of Solyndra (the high-flying alternative energy company whose bankruptcy made headlines), the parties’ contract required that any dispute be submitted to non-binding mediation before a lawsuit could be filed. One party filed a lawsuit without mediating, arguing that mediation would be futile because the other party was… Continue reading Contractually Required Mediation?
Although the facts need to be severe, courts have gone as far as dismissing lawsuits for mediation misconduct. In Hand v. Walnut Valley Sailing Club, 2012 WL 1111137 (10th Cir. 2012), the plaintiff sued a sailing club for revoking his membership. After a failed mediation session, he emailed all the club members, describing in derogatory… Continue reading Sanctions For Improper Mediation Conduct
It is always recommended that you have signed agreement at the end of a mediation, even if the agreement is only a term sheet, subject to later incorporation of a formal agreement. Having a signed document should prevent parties from having buyer’s remorse the following day. You may even want to consider having language in… Continue reading Make sure your medition agreement is binding