Because a party can never be forced to settle, courts struggle with what constitutes “bad faith” in mediation. In Lea v. PNC Bank, No. 15-776 (W.D. Pa. 2016), after the court ordered mediation, Defendant’s counsel told Plaintiff’s counsel that the mediation would be more productive if Plaintiff made a demand before the session. Plaintiff complied,… Continue reading Another Look At What Constitutes Bad Faith In Mediation
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Tirreno v. The Hartford, 2015 WL 8132972 (Conn.App. Dec. 15, 2015), the parties had agreed to resolve a dispute through binding mediation, by which they meant that the parties would first work with a jointly selected mediator to… Continue reading Court Rules That Binding Mediation Is Not The Same As Arbitration
In PNC Bank, N.A. v. Springboro Medical Arts (Ohio App. 2015), the parties concluded their mediation by signing a document that contained the “essential terms of the settlement.” The agreement further stated that counsel would later draft a settlement in “formal legal language” with such “additional documents” as were necessary. No formal document was drafted,… Continue reading Extrinsic Evidence to Interpret a Mediated Settlement Agreement?
In Billhartz v. Billhartz, 2015 IL App (5th) 130580-U, the parties ended a mediation by reaching an agreement, which was reflected in a written memorandum of understanding, but which they did not sign. The Illinois Appellate Court ruled that there was no enforceable settlement agreement, overturning a trial court ruling that attempted to enforce the… Continue reading Make Sure Your Mediation Ends With A Signed Document
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Ogbuehi v. Comcast of California/Colorado/Florida/Oregon, 2014 WL 4961109 (E.D.Cal. Oct. 2, 2014), the Court was asked to grant preliminary approval of a class action settlement reached through mediation before class certification. Preliminary approval of a class action settlement… Continue reading Court Inquires Into Materials Exchanged During Mediation For Class Action Settlement Approval
Insurance carriers are generally an essential party to a mediation, but what if they resolutely deny any coverage? Booth v. Davis, No. 10-4010 (D.Kan. 2014), was a substantial legal malpractice lawsuit. One group of insurers agreed to attend a mediation session, but others refused based on their denials of coverage. Plaintiff asked to court to compel the… Continue reading Should Carriers Declining Coverage Attend A Mediation?
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. Many states have statutes that create a privilege for mediation communications. There is no parallel federal statute, and federal courts have declined to create a federal common law privilege for mediation communications. Consequently, it is fairly well settled that… Continue reading Federal Law Governs The Mediation Privilege In Federal Court Even When State Claims Are Involved
It is critical to nail down the scope of the contemplated release before concluding a mediation. Case in point: In Kaiser v. Trace, Inc., 2014 WL 1745419 (D.Idaho 2014), the parties reached an oral settlement of an employment discrimination case in a mediation, but did not write anything up. A follow-up email memorializing the terms… Continue reading Failure To Nail Down Scope Of Release Negates A Mediated Settlement
This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee. In Miller v. Basic Research, LLC, 13-4048, 2014 WL 1778046 (10th Cir. May 6, 2014), the parties mediated a class-action lawsuit. At the conclusion of several mediation sessions, they informed the court that the mediation had been successful and… Continue reading Question on Mediated Settlement Not Appropriate Issue for Interlocutory Appeal
It is hard to have a successful mediation if one side feels it is missing information necessary to fully assess the case. Because mediation is generally a voluntary process, however, any pre-mediation exchange of information is generally left up to the parties, with (hopefully) the guidance of the mediator. In Selective Way Insurance Company v.… Continue reading Mandatory Discovery Prior to a Voluntary Mediation?