Legal Mediation Updates - August 2013


by Keith Seat

August 2013

Keith Seat This is another in a series of updates on legal issues impacting mediation and mediators by Keith Seat, Mediate.com News Editor.

Federal Court in Ohio Upholds Oral Settlement Agreement; Statute of Frauds May Be Satisfied by Court-Annexed Mediation

Applying Ohio and Sixth Circuit law, a federal court in Ohio upheld an oral settlement agreement reached in mediation, even though plaintiffs changed their minds after mediation and refused to sign a written agreement.  The court found that an agreement had been reached in mediation because settlement was reported to the court by the mediator and was confirmed by plaintiffs’ counsel asking for more time to obtain signatures.  However, plaintiffs had forgotten to ask that their credit history be cleaned up until after the mediation and refused to sign the settlement agreement when the additional term could not be added.  The court concluded that mediation confidentiality did not bar enforcement of the settlement because the court did not need to know the terms of the agreement.  The court also noted that even if Ohio’s statute of frauds applied to oral settlement agreements related to land, in this case finalizing the settlement terms with the mediator during a Settlement Week mediation was no different than reading the terms into the record in open court, so the settlement was binding.
Tsakanikas v. Nationstar Mortgage, LLC (U.S.D.C. S.D. Ohio, June 20, 2013)

Mediation and Settlement Confidentiality Provisions Waive Free Speech Protected by Anti-SLAPP Law

A California appellate court concluded that litigation to enforce confidentiality provisions in a mediated settlement does not violate the state’s anti-SLAPP law, even though the material related to a sex tape of a former Miss California USA that was of interest to the public.  Defendants had moved to strike the complaint based on the anti-SLAPP statute, which is intended to prevent chilling of the constitutional rights of freedom of speech and petition in connection with a public issue, and protects statements made in judicial or other official proceedings.  The court concluded that signing a confidentiality provision waives First Amendment rights and that the breach of confidentiality at issue was after the mediation and litigation had concluded, so the litigation seeking damages for breach of confidentiality could proceed.
LiMandri v. Wildman, Harrold, Allen & Dixon, LLP, Nos. B234460, B237158 (Cal. App. 2d Dist., June 6, 2013)

Surface Transportation Board Adopts Rules to Increase Use of Mediation

The Surface Transportation Board (STB) favors alternatives to litigation and, after a process lasting nearly three years, adopted final rules to increase use of mediation and arbitration to resolve matters before the Board.  With the changes, the Board may order parties to participate in mediation of certain disputes and simplified some of its mediation rules.  The Board also launched a new “Litigation Alternatives” page on its website to provide information to stakeholders on its mediation process and rules on confidentiality.
STB Decision, EP 699 (May 10, 2013); STB Website

Brooklyn Court Brings Mandatory Mediation to New York

The trial court in Brooklyn is said to be the first in the state of New York to require mediation in civil matters.  While beginning with a pilot program, the court may eventually require mediation in all civil cases.  Mediation will be required after discovery is complete and prior to setting a trial date.  The program will rely on volunteer mediators.  The new program implements the June 2012 suggestion of mandatory mediation in the Chief Judge’s Task Force on Commercial Litigation in the 21st Century.
Brooklyn Daily Eagle (June 14, 2013); CPR (June 19, 2013)

Massachusetts Expands Mediation for Tax Disputes

The Massachusetts Department of Revenue has successfully completed a pilot mediation program for tax disputes, and is expanding the mediation program and making it permanent.  The minimum amount in dispute is being reduced from $1 million to only a half or quarter million.  Other limits on the program remain:  there is a limited window during the audit cycle for mediation and the Department must agree to mediate.  Although only four cases were mediated during the pilot, three of the four settled within four months. 
JDSupra (June 24, 2013)

Connecticut Adopts Insurance Mediation Program for Catastrophes

Connecticut has enacted a law establishing a mediation program for insurance disputes arising from catastrophic events, such as Hurricane Sandy, in which the governor of Connecticut declares a state of emergency.  This legislation follows mediation programs recently established in New York and New Jersey for victims of Hurricane Sandy.  Mediation is available to consumers if the amount in dispute is at least $5,000; insurers are required to participate and cover the costs of mediation.
The Insurance and Reinsurance Report (June 27, 2013)

Ohio Begins Mediation Program to Resolve Property Value Disputes

The auditor of Franklin County, Ohio has begun a mediation program to streamline the complaint process over changes in property values.  The Board of Revisions has a backlog of 13,000 cases in the wake of the sharp market drop, some of which are still pending from 2008.  Nine mediators have been hired and the program hopes to resolve up to 4,000 cases.  Twelve mediations have been held so far and all have settled.  NBC4i.com (June 4, 2013)

Pennsylvania Finally Offers Mediation for Employment Discrimination Complaints

The Pennsylvania Human Relations Commission has launched a formal mediation program to resolve employment discrimination complaints, which virtually every other state has in place.  Mediation will be offered to anyone filing an employment discrimination complaint at no cost and without the need for legal counsel.  If mediation is not successful within ten days, the case will be investigated as usual.  Complaints against state agencies may not be mediated under the program. 
Sacramento Bee (June 17, 2013); 90.5 WESA (June 18, 2013)

Understanding Mediation Styles Is Important to the Field of Mediation

An analysis of mediation by the International Center for Cooperation and Conflict Resolution (ICCCR) Lab has developed a new framework for understanding effective mediation.  The study concludes that there are four basic aspects of mediations and four mediation dimensions, resulting in 16 different types of mediation situations with distinct orientations and strategies by mediators.  Other studies based on self-reported mediation styles and observed styles show a lack of clarity.  Some believe the many variations in mediation may hamper understanding and greater acceptance by users, ranging from consumers to investor-state disputes.
ICCCR/Columbia University (May 7, 2013); Court ADR Connection (June 2013); Huffington Post (May 29, 2013); Kluwer Arbitration Blog (May 30, 2013)

Neuroscience Helps Explain Why Mediation Techniques Work

While some remain skeptical, many value neuroscience to help explain why mediation techniques work and to provide insights into what may be most helpful to address challenging situations.  In a brief overview of neuroscience, examples such as priming and framing show how standard mediation moves can be understood in a neuroscience framework.
Daily Report (June 24, 2013)



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Biography




Keith L. Seat is a full-time mediator and arbitrator who can effectively assist parties in resolving a wide range of telecommunications, antitrust and other commercial disputes. With over twenty years of legal experience as a mediator, arbitrator, litigator, advocate before executive branch agencies, and key staffer in the legislative and judicial branches, Mr. Seat brings a wealth of experience to his work as a mediator and arbitrator to help parties reach successful resolutions of complex disputes.

Mr. Seat began his legal career in a federal clerkship with U.S. District Judge William H. Becker, and then litigated antitrust and commercial disputes for many years at a major Washington law firm, Howrey, Simon, Arnold & White, where he first worked on telecom and technology issues. In 1993, Mr. Seat was named General Counsel of the Antitrust, Business Rights and Competition Subcommittee of the U.S. Senate Judiciary Committee, where he served for four years, playing a significant role in the enactment of the Telecommunications Act of 1996. Returning to the private sector in 1997, Mr. Seat rounded out his experience with a senior in-house counsel position at MCI, one of the nation’s largest telecommunications firms. At MCI, he gained a first-hand appreciation for the important perspective brought to issues and disputes by in-house decision-makers. Mr. Seat also deepened his knowledge of telecom issues and gained experience addressing competition-related issues in the corporate setting, as well as helping resolve disputes among large organizations.



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