Business As Usual? Mediation and the Justice System
This article considers the under-use of mediation in the UK's second largest jurisdiction, Scotland. The article has three sections: a "myth buster" and two questions. The first examines three popular myths about mediation; the second addresses the question, "How does mediation add value to the justice system"; and the third presents the business case for lawyers, "Why does mediation make good business sense?"
Was OJ Simpson’s Lawyer Ineffective?
OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008. He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.”
So Who is Your Primary Care Legal Counsel?
Michael A. Zeytoonian
In our last blog, we suggested that people approach resolving legal disputes the way they approach making medical decisions. The starting point is to have a “primary care lawyer”, a true legal counselor, just as we have a primary care physician.
From Behind the Glass: Mandatory Family Law Mediation
This article sets out a plan of attack for how an attorney can effectively advocate for their client in a mandatory family law mediation setting where the attorney is excluded from the mediation session.
Mediation Case Law Video: Enforcing Oral Mediation Settlement Agreement
In the case Ledbetter v Ledbetter,
the appellate court considered the issue of whether parties to a divorce mediation should be bound to a settlement orally dictated by the mediator and affirmed by parties and their counsel at mediation, which was later repudiated by one of the parties.
ODR and the Courts
Karim Benyekhlef, Nicholas Vermeys
Whilst acknowledging that ODR assumes two roles as a competing and complementing
system to state courts, our focus in the following pages shall be exclusively directed to the
complementary role of ODR, and to the development of court annexed ODR schemes.
Accordingly, we shall commence by providing an overview of how states have started to
incorporate ODR into the legal process, and then proceed to shed light on possible
future paths for state-run ODR systems.
ODR and Justice
Ruha Devanesan, Jeff Arresty
In this chapter, we analyze the interaction between traditional concepts of justice and fields in which
Online Dispute Resolution (ODR) has flourished and is burgeoning. We then explore the
ways in which justice as traditionally conceptualized is adapting to the digital environment,
and ask the question: Are traditional notions of justice relevant to contemporary online
interactions between individuals, businesses, and governments?
Los Angeles Superior Court Shutters ADR Program
After more than 20 years, the largest program of its kind in the United States is calling it quits. We’re discussing the ending of possibly the largest single ADR practical training ground in the world. Could this be a "make lemonade" moment for mediators? Will this megalithic event impact mediators homogeneously, or will there be a stratification of consequences?
Increasing Referrals to Small Claims Mediation Programs
Heather Scheiwe Kulp
My favorite part of new mediator training is watching the attendees discover the potential value of mediation. They nod knowingly when they realize how brainstorming creative options based on parties’ real interests may change the dynamic of winner-takes-all, money-is-everything court battles.
Fifth Circuit Upholds Arbitrator’s Decision in Employment Dispute
The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct.
Mediation Saves Mediation in Massachusetts
At a time when lenders are working to keep mediation from becoming law in Missouri and Oregon, lenders in Massachusetts have voluntarily dropped their opposition to a mandatory program – and they did so through appellate mediation.
Cost of Small Claims Court vs. Mediation
When people are faced with a dispute, they often must decide if they would prefer to proceed in Small Claims Court or in Mediation. This article helps people evaluate the time and money required for an average Small Claims suit.
Judicial Activism and eDiscovery
Michael P. Carbone
Many attorneys shudder at the notion that the judiciary should choose (or at least strongly urge) the specific technology tools parties must use during discovery. The concern is based largely on the belief that many judges lack familiarity with the range of eDiscovery technology tools that exist today. Parties, mediators, attorneys and judges should familiarize themselves with these available tools.
Mediation Case Law Video: Including Arbitration Provision
In Fair v. Bakhtiari,
, the appellate course reversed the trial court's refusal to enforce a mediated settlement and compel arbitration pursuant to its terms because inclusion of the arbitration provision in the settlement was "consistent solely with an intention on the part of the parties for the settlement terms document to be enforceable or binding," thereby making the settlement admissible based on a statutory exception to inadmissibility where an "agreement provides that it is enforceable or binding or words to that effect."
Mediation Case Law Video: Mediation Confidentiality
In State v. Williams,
the appellate court considered a difficult question of mediator confidentiality. Is a mediation a fully confidential space or can the information shared in mediation be later submitted in court?
Everyone is waiting to see how this abolition of the Court’s mediation program will affect not only the mediation business, but the Courts in terms of case load and backlog for setting trials. If Mr. Randolph is correct; that our amygdala kicks in and prevents us from seeking a non trial by fire resolution unless we are forced to do so, then the LA County superior court system is in for a whole lot of trouble.
Thanks to the Consumer Attorneys Association of Los Angeles and the Association of Southern California Defense Counsel for putting on an informative program tonight detailing changes about to take place in the LA Superior Courts due to budget cuts. Thanks especially for the plug provided for the Southern California Mediation Association's program still in development to provide a referral source for mediators.
Initiatives and Innovations for Effective, Court-Mandated Mediation
Mediation attempts to use persuasion as the main tool for resolution. It is said that a Professor of Medicine taught his students to touch the patient while listening to them instead of standing by the bed. By standing near the bed, he felt that the patient would get the impression that the doctor wanted to move away, but by touching the patient, the doctor revealed special concern. Persuasive listening is said to be concerned listening as opposed to mere listening.
Mediation Gains Popularity in India (video)
This excellent news report from India shows the new Delhi Mediation Center. Unfortunately, it seems that the sign above the door inadvertently says "Meditation Room." Oops!
Mediators Who Never Say Die
Not long ago, I conducted a mediation involving a serious personal injury. Given its severity, the plaintiff’s attorney opined that a reasonable jury could render a verdict in excess of the policy limits and therefore made a demand for them while contemporaneously threatening a potential bad faith suit.
I find myself charged with an unexpected project, trying to figure out how to deal with the probable demise of one of the largest court-assisted ADR programs in the country. At the same time, the court system is also implementing drastic funding cutbacks that are likely to increase backlogs and reduce the availability of court services, suggesting that mediation is needed more than ever to resolve disputes that the court system is less and less capable of resolving.
Protracted litigation can be one of the most destructive elements in society: it destroys businesses, breaks up marriages, and damages health. There is therefore an urgent social need to dissuade people from unnecessarily entering into prolonged disputes.
The Growing Role of ADR in Multidistrict Litigation
Alternative dispute resolution (ADR) is playing an ever-increasing role in assisting the MDL Panel. Many cases routinely settle while in process at the MDL Panel stage, with parties engaging arbitrators or mediators.
"Face to Face" Explores Restorative Justice - Jan. 9 & 10 Screenings in LA
The award-winning film “Face to Face” will screen on January 9 and 10 in Southern California. The Australian drama deals with the concept of restorative justice, in which a mediator is appointed to resolve conflicts and legal issues. Plaintiff and defendant confront each other in a controlled, guided situation. The benefits of such an approach are obvious: Swift justice, rather than a costly protracted trial in the criminal court system: Good for the plaintiff, good for the defendant, good for the taxpaying public.
Court Mediation Programs: An Endangered Species?
The role of alternative dispute resolution has always been the ugly cousin of litigation. Lawyers were trained that the only means to a just end was a trial by jury. Of course, seasoned lawyers, particularly those who have suffered surprising and disappointing outcomes of jury trials, are slowly realizing that may not be the case.
How to Handle Expert Witnesses with Disciplinary Charges/Orders
It can sometimes be difficult to locate medical providers who will treat patients who were injured in accidents or on the job. If the patient was injured in an accident, the physician may have to wait for payment until the personal injury case resolves. In the case of a work-related injury, the physician must by law accept payment according to the fee schedule set by the Maryland Worker’s Compensation Commission, which is usually far less than the rates paid by private insurers. Many medical providers aren’t willing to accept these conditions, so the few who will are an invaluable resource for Maryland personal injury lawyers and our clients.
Supreme Court Decides Yet Another Arbitration Case
The decision offers no new law: it just reiterates and reaffirms fundamental principles of the Court’s FAA jurisprudence, including broad FAA preemption, separability, and the power of the arbitrators to decide the enforceability of contracts containing an arbitration clause.
Arbitrating in China – What Interim Measures are Available from the Courts?
The recent revisions to the Chinese Civil Procedure Law (the “CPL”) made some significant amendments to the arbitration law in China. In particular, the new CPL for the first time provides for pre-arbitration preservation measures to be available from the Chinese courts. The revisions will come into force on January 1, 2013.
Mediation is Underused in Civil Cases
Don Cripe is a law professor and experienced attorney/mediator. He shares his point of view as a lawyer, giving insight into how lawyers view and use the mediation process.
Is Mediation Overused?
Richard G. Spier
I recognize that there has been big growth in my industry of private mediators and that courts increasingly have mandatory settlement conferences for cases past a certain time after filing, but I still have the perception that lawyers did not take most civil actions before a mediator or settlement judge. I believe that there is value in the jury trial system and that more cases should be taken through a complete trial.
Neighbor Tree Dispute
Jim W Hildreth
This article gives a great example of a real mediation between two neighbors. Both neighbors faced a tree dispute with very different motives for wanting the case resolved.
An Open Letter from the ABA
Conflict is an inevitable part of life — from our jobs, to our families to our communities. Sometimes, serious situations can’t be solved by the people involved. The first place we think of going to is the courthouse. But it is not the only place. If your case could be heard fairly and resolved quickly without a judge or jury, would you consider it?
Swiss Parliament Initiates Review Process of the Swiss Arbitration Law
On 27 September 2012, the Swiss Parliament adopted a motion that had been introduced earlier this year tasking the Government to prepare a report on the Swiss Arbitration Law (chapter 12 of the Federal Act on Private International Law (PILA)). The objective of the report is to further enhance the attractiveness of Switzerland as a place of arbitration.
Alternatives to Arbitration
Michael P. Carbone
The question whether arbitration is a good idea or not is constantly being debated. Those who believe that it is not a good idea should be aware that California law provides other alternatives to arbitration besides litigation.
AudioBlog: Mediate Don’t Litigate: Part One -The High Cost Of Going To Court
Have you ever heard someone threaten “I’ll see you in court!”? If this has happened to you, or if you have ever thought of suing someone, join us to hear Stephen Kotev interview attorney and mediator Daniel Preston Dozier to find out how much litigation really costs, and the hidden pitfalls of actually taking someone to court.
Mass Procedures as a Form of 'Regulatory Arbitration'
Commentators and counsel agree that Abaclat v. Argentine Republic is one of the most important investment arbitrations in recent years. Described alternatively as “unprecedented,” a “landmark ruling” and a “quantum leap,” the jurisdictional and dissenting awards were voted the most controversial arbitration decisions of 2011 by experts in the field.
Delaware’s Chancery Court Arbitration Procedure Ruled Unconstitutional
Last year, the Delaware Coalition for Open Government sued Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential.
An Update To Proposed Mediation Regulation
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On August 3, 2012, I posted a blog about Resolution SR-05-01-2012 that was proposed to the California Conference of Bar Associations by Bay Area Lawyers For Individual Freedom. Jo Hoenninger, Esq. is its author. The proposed resolution, if passed by the Conference at California’s Annual State Bar Convention would not only change the definition of “mediator” in California but also implement mediator regulation by the State Bar of California.