Orlofsky ADR Services

What Is Bad Faith In A Mediation?

In Holly v. UPS Supple Chain Solutions, Inc., 2015 WL 4776904 (W.D.Ken. 2015), the parties agreed to mediate a case before a federal magistrate. The court’s Settlement Conference Order stated that “each party must attend through a person who is fully authorized to approve a settlement and has the power to change the party’s settlement… Continue reading What Is Bad Faith In A Mediation?

Court Inquires Into Materials Exchanged During Mediation For Class Action Settlement Approval

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

Federal Law Governs The Mediation Privilege In Federal Court Even When State Claims Are Involved

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

Failure To Nail Down Scope Of Release Negates A Mediated Settlement

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

Are there consequences to turning down an offer in mediation?

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?

Mediator’s Reports

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