Missouri’s attorney general recovered $5.3 million for consumers through mediation in 2006, which exceeded sixteen-fold the amount recovered through litigation. Recoveries through mediation were up 50% over the previous year.

Springfield News (December 28, 2006)

Dissatisfied with the limitations of picking a winner and loser in litigation, an Oregon circuit judge dismissed a condemnation case without prejudice after hearing testimony for two days in order to encourage the parties to mediate. The judge emphasized the broad range of possible solutions available in mediation, although the city and the owners of 140 acres of farmland sought for recreational purposes had previously attempted mediation without success. The circuit judge offered his own services to mediate the dispute; the parties indicated interest.

The Portland Oregonian (December 22, 2006) (Subscription Required)

A non-binding neutral evaluation was issued by the mediator after two days of proceedings in a dispute between Wal-Mart and Jacksonville, Florida officials over the desirability of a Supercenter due to traffic concerns and land development requirements. The mediator scheduled a third day of mediation and urged the parties to compromise on design and building concepts that could satisfy everyone. The mediation was initially sought by Wal-Mart after the local city council blocked development of its large retail center.

The Florida Times-Union (Jacksonville) (December 29, 2006)

Emphasizing the importance of mediation confidentiality, the California Supreme Court in Fair v. Bahktiari reversed the appellate court and provided “clear drafting guidelines” requiring parties who wish their mediation settlement agreements to be binding to simply say so. Including a statement that the settlement agreement is “enforceable” or “binding” (or words to that effect) shows the intent of the parties and satisfies the California confidentiality statute that otherwise bars disclosure of mediation statements. The Supreme Court concluded that including an arbitration provision was not sufficient to show that a short handwritten document signed by the parties after two days of mediation was intended to be a binding settlement agreement rather than a mere list of terms to be included in a detailed formal agreement. When disputes arose over the language of the longer agreement, the parties did not return to mediation and began litigation over the enforceability of the arbitration provision. Litigation continues with the Supreme Court’s remand of the case for further proceedings.

Fair v. Bahktiari, S129220 (Cal. Dec. 14, 2006)

The European Commission recently committed to use mediation and other forms of alternative dispute resolution in disputes with contractors, many of whom have complained to the Commission Ombudsman. The Commission previously endorsed mediation as a better way to resolve disputes, and proposes to include an optional mediation clause in its standard procurement contracts. While the Commission states it cannot require contractors to mediate disputes with their subcontractors, the Ombudsman is encouraging the Commission to recommend mediation in such situations, as well as using mediation in disputes over grants made by the Commission.

US Federal News (December 18, 2006) (Subscription Required)

New Hampshire's consumer protection hotline, sponsored by the state attorney general's Consumer Protection and Antitrust Bureau, handles over 19,000 complaints and inquiries a year. While a pattern of complaints may result in criminal prosecution, other matters may be referred to mediation. Mediators helped consumers recoup over $500,000 between 2003 and 2005, in areas such as contractor disputes, used car sales, purchases over the internet and lottery scams.

Concord Monitor (December 26, 2006)

The New Zealand Human Rights Commission illustrated the success of its dispute resolution program – which since 2002 has focused on mediation – by detailing a number of cases, one of which resolved claims against an airline by a Muslim religious leader who was removed from a plane as a security risk for spending ten minutes in the toilet in ritual ablutions before take off. The airline ultimately gave the cleric a written apology and financial compensation for missing his presentation at an overseas conference, and instituted cultural awareness training and other changes to prevent recurrences. Overall, the Commission reported that discrimination complaints are up 11% over the previous year.

New Zealand Herald (December 9, 2006)

To eliminate overlapping regulation and increase efficiencies, NASD and NYSE announced a plan on November 28 to consolidate their member regulation operations, including their enforcement, arbitration and mediation functions. The new self-regulatory organization, yet to be named, will oversee all securities brokers and dealers doing business with the American public. NASD currently regulates 5,100 securities firms, of which 200 of the largest are also regulated by NYSE. The merger has already been approved by the NASD and NYSE boards, but must obtain approval of the full NASD membership and the Securities and Exchange Commission.

CNNMoney.com (November 28, 2006); BNA Corporate Law and Business (December 4, 2006)

A Michigan federal court prevented plaintiff’s experts from testifying at trial in Irwin Seating Co. v. IBM, because plaintiff’s counsel gave the experts defendants’ confidential mediation statements to read in preparing their reports. The experts claimed the confidential material did not influence them, but the court emphasized the importance of mediation confidentiality and the settlement privilege in deciding to block testimony by the experts. The court also sanctioned plaintiff by imposing attorneys’ fees and costs.

Irwin Seating Co. v. International Business Machines Corp., et al., No. 1:04-CV-568 (W.D. Mich. Nov. 29, 2006)

Building on the success of its Oklahoma Agriculture Mediation Program (which settled 87% of its 56 cases last year), the Oklahoma State University’s Institute for Dispute Resolution plans to begin mediating a broad range of disputes, and provide mediation training and customized dispute resolution programs for businesses. While there is no charge for agricultural mediation services, the Institute plans to charge market-rates with a sliding scale for many other disputes.

Journal Record (November 30, 2006) (Subscription Required)

Court programs for referring cases to mediation have expanded in the Philippines since first introduced as a pilot project in trial courts in 2001. After initial successes, court-annexed mediation was institutionalized in 2002 in the trial courts, with pre-trial mediation referrals in all civil cases. The Supreme Court and the Philippine Judicial Academy institutionalized mediation in the court of appeals in 2002 as well. The mediation success rate from 2002-2006 at the trial level has been 71%. New issues arise as programs mature, with controversy at a recent National Conference on Court-Annexed Mediation over the desirability of lawyers being present in mediation sessions.

Manila Standard Today (December 4, 2006)

As mediation becomes more mainstream, both college and law school students are engaging in national mock mediation competitions. Drake Law School in Des Moines, Iowa hosted both the National Law School Mediation Tournament in late November and the National Intercollegiate Mediation Competition earlier in the month. Unlike programs in which competition is focused on advocacy in mediation, these tournaments include competition among mediators; the college program even provides “national rankings” of students as mediators. The conferences are sponsored by the American Mock Trial Association and the International Academy of Dispute Resolution.

Aberdeen American News (December 11, 2006); Drake Law School News (November 24, 2006)

A detailed survey of hundreds of senior corporate counsel on litigation trends around the world concluded that litigation continues to increase and occupy greater attention and resources, even with the growth of alternative dispute resolution. In ranking litigation exposure, respondents’ top concerns were labor and employment, contract issues, regulatory issues, intellectual property and class actions. While class actions are primarily an issue in the United States, substantial increases in the United Kingdom were reported. The survey covered international arbitration, which respondents considered to be similar to litigation in both the cost and amount of time involved.

Fulbright & Jaworski’s Third Annual Litigation Trends Survey Findings (Registration Required)

The Association for Conflict Resolution established a Legal Representation Fund to provide up to $500 for legal fees incurred by ACR Advanced Practitioners in dealing with subpoenas, requests to testify and other compelling public policy concerns. The issue must arise in a practice area in which a mediator or arbitrator has been designated as an Advanced Practitioner by ACR, which currently is limited to Workplace and Family. ACR may also prepare supporting amicus briefs and is developing a list of attorneys willing to represent practitioners. The program, which went into effect on November 1, 2006, does not take the place of insurance; practitioners must carry malpractice insurance to be eligible for the program.

ACR Workplace Section Announcement; Original Reporting by Editor

The ongoing expansion of “e-discovery” – discovery of electronic materials in legal proceedings – has led to updated Federal Rules of Civil Procedure definitions that take effect December 1, 2006, with state rules of procedure generally following suit. The increased time, expense and aggravation involved, as e-discovery and procedures for production expand in litigation and even arbitration, provide an additional incentive for parties to use mediation. In mediation, parties often reach resolution with little, if any, formal discovery, or can come to consensus on limited information to be exchanged, often with creative help from the mediator. For example, parties might agree on techniques, such as informal sampling, that would be limited to use in the mediation and could not be used in any later litigation.

The National Law Journal (November 27, 2006) (Subscription Required)

The Chinese Ministry of Justice is developing comprehensive legislation to regulate the practice of mediation throughout China. The legislation was proposed by the 10th National People’s Congress, which recognizes the “pivotal role” mediation already plays in resolving civil disputes and promoting economic development, but sees a need for improved quality, standardization and greater financial support.

World News Connection(November 24, 2006) (Subscription Required)

An agreement to mediate was held unenforceable by a California appellate court in Templeton Development Corp. v. Dick Emard Electric, Inc., due to a California statute preventing disputes involving California subcontractors on construction projects in the state from being “litigated, arbitrated or otherwise determined” outside the state. The contract between a California subcontractor and a Las Vegas general contractor for construction in California required the parties to mediate any dispute in Las Vegas, prior to arbitration or litigation. But when the subcontractor refused to mediate in Las Vegas and the contractor refused to mediate in California, the court permitted the subcontractor to proceed with litigation, since the arbitration clause was expressly conditioned on an initial effort to mediate. While the court recognized that mediation doesn’t necessarily “determine” anything, it was not clear to what process other than mediation the statutory phrase “otherwise determined” might apply.

Templeton Development Corp. v. Dick Emard Electric, Inc., C052528 (Cal. App. 3d Dist., Oct. 25, 2006)

After a decade of disputes involving litigation in both state and federal courts, complicated by bankruptcy filings, the New York subsidiaries of Mirant Corporation appear to have finally resolved tax issues that will allow the company to emerge from bankruptcy in New York as it has elsewhere in the country. The underlying tax disputes were with the towns of Haverstraw and Stony Point and the local school district relating to two power generating plants. Ongoing negotiations ended with two long days of mediation that went into the weekend, with the parties signing a term sheet that is to result in a detailed final agreement.

The Journal News (November 21, 2006); Harvard Law School Press Release (November 28, 2006)

In an effort to minimize the risk to mediators from assertions that they are engaged in the unauthorized practice of law (UPL), the Association for Conflict Resolution recently released a statement affirming that those who mediate within ACR’s standards of conduct should not be considered to have engaged in UPL. Further, ACR states that it will provide “appropriate” assistance or support to any member charged with UPL. ACR’s UPL Task Force is continuing its work to determine what sort of assistance would be appropriate in various circumstances. ACR is also reviewing the coverage of UPL in mediation malpractice policies and is developing a longer report that will clarify whether a mediator is in compliance with ACR’s standards of conduct. While UPL charges against mediators are rare, ACR’s actions intend to keep it that way.

ACR's Position on UPL

Pepperdine University School of Law has announced that the American Arbitration Association will transfer its dispute resolution library to Pepperdine, home of the Straus Institute for Dispute Resolution. Begun in 1954, the AAA’s collection is now the largest dispute resolution library in the world, with over 24,000 titles on mediation, arbitration, fact-finding, and other forms of domestic and international dispute resolution. Pepperdine will make the collection available to users from around the globe through advanced technology, including scan-on-demand and the web.

Pepperdine University News and Events

Cybersettle, Inc. successfully enforced its patent for an automated, double blind, online dispute resolution system capable of multiple rounds of bidding against the National Arbitration Forum, which administers a no-fault automobile insurance personal injury program for New Jersey. A U.S. district court in New Jersey granted summary judgment for Cybersettle on its patent infringement claim and is preparing to enter a permanent injunction against the Forum. Cybersettle recently entered a strategic alliance with the American Arbitration Association in North American and Europe to offer one-stop shopping and cross promote each other’s services.

PR Newswire (November 13, 2006)

Empirical research by Dr. Tamara Relis described in her article in the Harvard Negotiation Law Review (Vol. 12, 2007) shows the importance of principals being able to communicate directly with each other, especially in medical malpractice cases. Patients and doctors often have a great interest in interacting with each other that is blocked by their counsel which prevents them from obtaining the “extra-legal” benefits of mediation, including understanding, forgiveness and empowerment, that parties seek in mediation along with financial compensation.

Abstract and Link

With arbitration becoming more like litigation, more reinsurers in Australia are turning to clauses in their contracts with insurers that require disputes to be resolved through mediation or expert determination. The trend is toward including both mediation and arbitration clauses in reinsurance contracts, with arbitration occurring only if mediation fails fully to resolve a dispute. Australian courts are encouraging parties to use mediation, which influences the way contracts are drafted. However, parties need to understand the benefits and limitations of mediation and other forms of alternative dispute resolution before incorporating the provisions in contracts. Reinsurers may be more comfortable incorporating mediation clauses in contracts with sophisticated insurers and relying on arbitration provisions with those less sophisticated.

Mondaq (October 31, 2006)

A Florida appellate court upheld a lower court’s rejection of Pinellas County’s effort to mediate disputes with several municipalities over whether proposed changes to the county charter would be on the November ballot. The county claimed a right to mediation under state law because the dispute was between local government entities. The cities accused the county of attempting to drag out the mediation process beyond the November 7 elections. The court ordered a prompt trial to take place in October.

St. Petersburg Times (October 20, 2006) (Subscription Required); St. Petersburg Times (October 5, 2006) (Subscription Required)

Where a doctor gave her insurer permission to settle a medical malpractice case and then changed her mind before the written settlement agreement was signed, the California appellate court in Simmons v. Ghaderi applied basic contract law principles to find an enforceable oral agreement to settle the case. The doctor failed to rely on the confidentiality of mediation to object to evidence showing an oral agreement during the first fifteen months of litigation over the events at the mediation, after which the court concluded it was too late and she was estopped from relying on confidentiality. A dissenting opinion vigorously argues that the mediation proceedings must be considered confidential, and thus no oral agreement can be proved, because no exception to California’s tough mediation confidentiality statute was shown and there was no harm from the doctor’s fifteen month delay in raising confidentiality concerns. The California Supreme Court has agreed to hear the appeal and provide the final word.

Simmons v. Ghaderi, B180735 (Cal. App. 2d Dist., Sept. 27, 2006), cert. granted (Cal. Nov. 6, 2006).

Despite court caseloads tripling since 1990, the number of jury trials has remained steady in Butler County, Ohio, which reflects statewide trends. An additional, seventh judge is being added to the court, but the increase in cases is primarily being handled through more mediation of civil cases and more plea bargains and careful selection of cases on the criminal side. As more cases are mediated and settled, the jury trials that remain tend to be more complex and for higher stakes.

Middletown Journal (October 23, 2006)

Although parties in many types of civil cases in New Jersey state court are required to mediate, they only have to pay for mediation if they agree to continue beyond the first two hours which are provided without charge. In a case in Essex County Superior Court, an attorney has accused the New Jersey Attorney General’s Office of making a sham of the court’s mediation requirement with a policy of refusing to mediate beyond the free hours. The attorney claims that counsel for the New Jersey Transit Authority told him of the policy, which a supervising attorney in the AG’s Office denies, explaining that the decision to pay for mediation is made on a case-by-case basis. Two state officials stated they understand that the AG’s state agency clients refuse to pay for mediation for financial reasons. Last year, mandatory civil mediations resulted in over 1,100 settlements in total, which was about one-third of completed mediations, but separate figures for cases handled by the AG’s Office are not available.

186 N.J.L.J. 373 (October 23, 2006) (Subscription Required)

The Merit Systems Protection Board (MSPB), an independent federal agency which handles appeals of personnel cases by federal employees against management, is moving its mediation program to MSPB Headquarters to emphasize and enhance the visibility of its program. The MSPB mediation program began in two regional offices in 2002, and expanded nationwide in 2005 due to its success. Of more than one hundred MSPB appeals that have been mediated, about 60% have settled at mediation or thereafter, while over 95% of participants say they would use mediation again.

U.S. Federal News (September 29, 2006)

Forty shipping experts from 26 countries met in London on October 13 to initiate a new international mediation panel for shipping disputes and agree on rules and rates for the panel. Spanish lawyer Jose Maria Alcantara initiated the panel, which has not yet been named, due to the increasing number of disputes and the costs and time requirements of both litigation and arbitration. The panel emphasizes its diverse international membership and range of mediation styles, along with its use of respected industry experts as mediators. Co-mediation may be used where broader expertise is needed.

Lloyd’s List International (October 11, 2006) (Subscription Required); Lloyd’s List International (October 18, 2006) (Subscription Required)

With arbitration becoming more like litigation, more reinsurers in Australia are turning to clauses in their contracts with insurers that require disputes to be resolved through mediation or expert determination. The trend is toward including both mediation and arbitration clauses in reinsurance contracts, with arbitration occurring only if mediation fails fully to resolve a dispute. Australian courts are encouraging parties to use mediation, which influences the way contracts are drafted. However, parties need to understand the benefits and limitations of mediation and other forms of alternative dispute resolution before incorporating them in contracts. Reinsurers may be more comfortable incorporating mediation clauses in contracts with sophisticated insurers and relying on arbitration provisions with those less sophisticated.

Mondaq (October 31, 2006)

Here is the text of the Mediators' Statement developed at the recent Senior Mediators Conference in Keystone, Colorado:

Given that the world is confronted with real and perceived threats from several international arenas we, the undersigned, urge that citizens of our nations insist their elected and appointed government officials immediately engage in honest, direct and unconditional negotiations with all authorities and powers who can resolve these pending crises in ways that are equitable and practical for all concerned without sacrifice to national sovereignty or security. As citizens of the world and as professional negotiators and mediators we urge that proven conflict resolution processes be employed now.

For more information and to express your support, see www.concernedmediators.org

The U.S. Department of Justice has used mediation to resolve 90% of 2,000 cases involving the Americans with Disabilities Act (ADA) over the past five years, along with another 150 ADA cases against state and local governments. While most settlements involve better access for persons with disabilities to public places and services, a few have also included monetary damages, such as a $100,000 payment by a theater chain for access problems.

Washington Post (October 9, 2006)

Acknowledging the growing importance of mediation, the National Institute of Trial Advocacy (NITA) is launching a training program for lawyers who represent clients in mediation. Using NITA’s experiential, learn-by-doing approach, the program plans to cover how to choose a mediator and gain the mediator’s support, identifying interests and developing options, when to disclose information, and how to deal with combative opponents and “aberrant” mediators. After focusing on trial advocacy for 35 years, NITA’s President states that training advocates for the “distinctive rigors” of mediation is crucial for adequate client representation. Press Release Newswire (October 5, 2006)

A nationwide survey found that a majority of governmental and other public owners involved in construction projects in the United States have experienced construction disputes in the past three years, and most would prefer resolution through mediation rather than litigation or other forms of alternate dispute resolution. However, compared to the rest of the country, the Southeast is less inclined to use mediation over other forms of ADR. An overwhelming majority of public owners prefer speedy resolution to keep the project on schedule, rather than detailed resolution on the merits. Nearly all public owners describe themselves as competent to manage and resolve complex construction disputes, while over half consider themselves “very” competent.

Business Wire (October 10, 2006)

The United Nations seeks to encourage peacemaking with a new website offering advice and tools to diplomats, mediators and others attempting to resolve global conflicts. The content-rich site includes a “peacemaker’s toolbox,” a database of peace agreements, and many other resources. The site is part of an initiative by the UN’s Department of Political Affairs (DPA) to synthesize existing knowledge about how peace agreements are reached, so that those involved in peacemaking worldwide may learn from past efforts and avoid recurring mistakes. The DPA is also creating a mediation support unit to provide advice and assistance to envoys in the field and to deploy mediation experts quickly for peace negotiations.

US News Centre (October 4, 2006); UN Peacemaker Website (Registration Required)

In accord with the Minnesota state policy of mediating secession and annexation disputes, the Vadnais Heights City Council has agreed to mediate with neighboring Gem Lake. Groups of residents representing over one-fifth of Gem Lake are seeking to break away from their city and join Vadnais Heights. The parties are working to select a mediator.

Twin Cities Pioneer Press (September 22, 2006)

Nevada’s Division of Insurance adopted regulations permitting qualified certified public accountants (CPAs) to mediate or arbitrate disputes with state insurance companies concerning the companies’ audited financial statements. The regulations are to satisfy national insurance accreditation standards.

RegAlert (September 20, 2006) (Subscription Required)

The American Arbitration Association (AAA) and Cybersettle, Inc. have announced a “strategic alliance” in North America and Europe to offer clients one-stop shopping and cross promote each other’s services. Cybersettle is a leader in online dispute resolution using a double-blind bid system, while AAA provided conventional dispute resolution services in 142,000 cases last year.

Newstex (September 25, 2006)

New Zealand has improved its landlord-tenant dispute resolution processes by adding 17 additional centers for face-to-face mediation throughout the country (for a total of 85), by providing new options to mediate simple disputes by telephone, and by making other changes in the country’s Residential Tenancy Act.

US Federal News (September 22, 2006) (Subscription Required)

The former fair housing officer in Lakewood, New Jersey has begun a private landlord-tenant mediation service in the town. Several landlords have signed up in case disputes arise. Mediation services will be free to tenants and paid for entirely by landlords.

Asbury Park Press (September 27, 2006)

After six years of litigation over the 2000-2001 energy crisis in California and other western states, more than two-hundred appeals from Federal Energy and Regulatory Commission (FERC) actions remain before the U.S. Court of Appeals for the Ninth Circuit and close to two dozen related appeals are pending in the U.S. Court of Appeals for the D.C. Circuit. In August, the Ninth Circuit sent the parties to mediation, which commenced in September before a federal judge in San Francisco. FERC Chairman Joseph T. Kelliher hailed the move to mediation as a way to bring closure, stating that settlements of FERC-related cases related to the crisis have already yielded over $6 billion for consumers, while litigation has yielded nothing thus far and might continue for another five or ten years.

U.S. Federal News (September 6, 2006) (Subscription Required)

In a matter brought by a local telephone company against AT&T alleging underpayment of access fees, the Florida Public Service Commission has postponed action for sixty days to await the outcome of a court-ordered mediation in a similar action in federal court in Missouri. The parties are to report back to the Commission on the mediation, which AT&T did not expected to exceed sixty days.

State Telecom Regulation Report (September 8, 2006) (Subscription Required)

The National Association of Securities Dealers (NASD) announced its annual Mediation Settlement Month for October, during which its mediation rates will be reduced substantially (up to 50% or more) and it will provide educational programs to promote mediation. Hundreds of participating mediators have agreed to reduce their rates at NASD’s 68 hearing locations. Settlement Month has been a success in past years, increasing the number of cases mediated by 40% or more. In the 11 years since it was established, NASD’s mediation program has handled over 14,000 securities cases, with a settlement rate exceeding 80%.

AP Alert – Financial (September 18, 2006) (Subscription Required)

The U.K. Department for Constitutional Affairs (DCA) and Her Majesty's Courts Service are sponsoring Mediation Week from October 9-13, with presentations, seminars and mediation demonstrations taking place in participating courts across England and Wales. The week is part of DCA’s Proportionate Dispute Resolution strategy to ensure justice by increasing awareness of rights, responsibilities and resolution alternatives.

HMCS Mediation Week; Mediation Week Events

The Irish government will pay “walking managers” to resolve disputes in the Irish countryside between farmers and hikers over rights of way and acceptable routes. The mediators will be empowered only with their dispute resolution skills and will not have any enforcement authority. The government will select local mediators who know the region and intends for them to be on the scene or available by cell phone in order to resolve disputes before they escalate.

The Sunday Times – Ireland (September 3, 2006)

The Australian government has selected a firm to provide mediation services throughout the country to assist the Produce and Grocery Industry Ombudsman. The Produce and Grocery Industry receives subsidized dispute resolution services under its Code. The mediation firm’s contract is overseen by the Department of Industry, Tourism and Industry, which is instituting a nationwide public awareness campaign of the Ombudsman and the Code.

Industry, Tourism and Resources, Australia (August 31, 2006)

Taxation of Compensation for Emotional Distress and Loss of Reputation Held Unconstitutional: Murphy v. United States, No. 05-5139 (D.C. Cir. 2006)

Some types of employment disputes should be easier to settle following the August 22 decision in Murphy v. United States. The U.S. Court of Appeals for the District of Columbia Circuit concluded that compensation for non-physical personal injuries is not income (and thus not taxable) under the Sixteenth Amendment of the U.S. Constitution and ruled that ten-year-old federal legislation was unconstitutional. After complaining about environmental hazards, plaintiff Marrita Murphy was blacklisted and given unfavorable references in violation of whistleblower statutes, and eventually received an award for emotional distress and loss of reputation from her former employer. Plaintiff’s award was taxed by the Internal Revenue Service based on 26 U.S.C. § 104(a)(2), which since 1996 has excluded from income compensation based on personal physical injuries, but not non-physical injuries such as emotional distress and harm to reputation. After analyzing the meaning of “income” at the time the Sixteenth Amendment was adopted in 1913, the Court found § 104(a)(2) unconstitutional, reversing summary judgment in favor of the government. The court explained that compensatory awards for emotional distress and harm to reputation are simply intended to make plaintiff whole, akin to a return of capital, rather than to substitute for something that is normally taxed as income, such as lost wages.

Minnesota Attorney General Mike Hatch is seeking to have state District Judge William Leary removed from two consumer-protection cases based on comments the judge made to the Attorney General’s staff about “political needs” during a mediation conducted by the judge in one of the cases. A two hour long hearing before the Chief Judge openly detailed the mediation discussions, with no mention of mediation confidentiality reported. The judge previously put on the record that the Attorney General improperly called him after the mediation ended, threatening publicity over the judge’s handling of the cases to try to influence his judicial decisions; the Attorney General asserted that he believed the mediation was still under way when he called, so that ex parte contact was allowed.

AP Alert (August 17, 2006) (Subscription Required); Star Tribune (August 23, 2006) (Subscription Required); Star Tribune (August 25, 2006) (Subscription Required)

North Carolina will join thirty-two other states by establishing an Agriculture Mediation Program through a $95,000 grant from the U.S. Department of Agriculture (USDA). The program is being created at Western Carolina University’s College of Business, and will provide 40-hour basic mediation training along with 20 additional hours of specialized training in issues specific to the business of agriculture. Building on Western’s community mediation program, mediators will be trained to handle disputes among farmers, ranchers and the USDA and its agencies (Farm Services Agency, Natural Resources Conservation Services, Rural Development and the Risk Management Agency), as well as private lenders. Disputes may include agricultural credit, risk management and crop insurance, rural water loan programs, rural housing and other rural development issues. The National Association of State Departments of Agriculture has encouraged the development of agricultural meditation programs throughout the country.

US State News (August 31, 2006) (Subscription Required)

Participants from India, Australia, Malaysia, Japan, Hong Kong, Cambodia, Vietnam and the Philippines attended the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur in mid-July. The keynote address by Malaysian Chief Justice Ahmad Fairuz stated that his country is considering mediation legislation which would cover both voluntary and court-directed mediation in order to reduce court backlogs. The Chief Justice emphasized that courts around the world struggle to keep up with expanding caseloads and noted the successful use of mediation in Singapore, the United Kingdom, Canada and Australia. The conference was organized by the International Islamic University Malaysia and an arbitration center.

Bernama General News (July 18, 2006) (Subscription Required)

The Rhode Island Supreme Court’s appellate mediation program has been successful since it began in 2003. Inspired by Abraham Lincoln’s motto “discourage litigation,” the mediation program screens civil cases headed for appeal. Mediations are conducted without charge by retired Rhode Island Supreme Court justices who have been able to resolve 74% of the 350 cases eligible for mediation. Early kinks have been worked out and parties report a high level of satisfaction with the mediation program.

Providence Business News (August 12, 2006) (Subscription Required)

In a final rule published August 12, the Department of Energy (DOE) established a two-step resolution process for disputes with nuclear power companies. The new rule provides government insurance to nuclear power companies to cover costs of delay due to litigation, in order to encourage investment. The first step for disputes is a fifteen-day mediation process, in which the mediator is to be chosen and paid for jointly by the parties. If no resolution is reached, the dispute is resolved by binding arbitration by the newly established Civilian Board of Contract Appeals, which is comprised of members of contract appeals boards of various federal agencies, including DOE.

Final Rule (August 12, 2006) (Subscription Required)

U.S. Ninth Circuit Judge J. Clifford Wallace stated recently in Pakistan that he believes use of mediation is consistent with the requirements of the Koran. Discussing difficulties facing judiciaries around the world, Judge Wallace emphasized mediation and its success in most of the 50-60 countries in which he has worked. Judge Wallace noted the potential for mediation in Pakistan and praised Pakistan’s Supreme Court Justice Jillani for his promotion of alternative dispute resolution.

Pakistan Link (August 14, 2006)

The Port of Galveston will receive $9 million to resolve a dispute against a lessee which agreed to build a port terminal, but had not gotten the project under way. Litigation that generated 8,000 court documents was settled in a single 12-hour mediation session. While modest settlement offers had been made previously (with less than $2 million offered to settle a claim exceeding $100 million), the presence of the lessee’s CEO was noted as significant in the successful mediation.

The Daily News (Galveston County) (August 16, 2006)

Two years after being shunned by the cycling world for being convicted of drug use (later overturned) and providing information about widespread doping, a series of mediations has helped Australian cyclist Mark French return to competition. One-on-one mediations between French and his teammates, organized by Australian team management, greatly improved their relationships and allowed French to rejoin the Australian team.

The Age (August 20, 2006)

Overcoming initial skepticism, mediation of complex civil disputes at the appellate level is now quite common and effective, as illustrated by the success of the U.S. Court of Appeals for the Sixth Circuit. Processing over 1,000 cases a year with four full-time mediators, the Sixth Circuit’s mediation program has markedly reduced costs for both the court and litigants, as well as reducing resolution times. All of the federal circuit courts and 23 states now have appellate mediation programs. Appellate programs report a 45-55% success rate, despite working with cases that previously failed to settle and in which a lower court judgment has been rendered. In contrast with pre-trial mediation, more of the appellate level work is with attorneys rather than parties, looking at the merits of appellate issues and settlement options. In judicial circuits spread across several states, much of the mediation practice is through telephone conferences, although as the value of mediation has been demonstrated, the trend is increasingly toward face-to-face mediations.

Daily Record (August 3, 2006) (Subscription Required)

The success of the circuit court mediation program in Kanawha County, West Virginia has resulted in a mediation pilot project in the magistrate court. Four other counties in West Virginia currently have magistrate court mediation programs, and the state bar’s goal is to have court-annexed mediation in every magistrate court in the state.

Charleston Daily Mail (July 26, 2006) (Subscription Required)

The Council of Howard County, Maryland authorized its Zoning Board to suggest voluntary mediation in zoning disputes over what the new zone or development plan should be. But mediation is not to be used to resolve the initial legal issue of whether any zoning change is justified due to a change in the neighborhood or a prior zoning mistake.

Baltimore Sun (August 2, 2006) (Subscription Required); Baltimore Sun (July 19, 2006) (Subscription Required)

In a dispute over contaminated petroleum products, a contractual provision between the third-party and fourth-party defendants contained an alternative dispute resolution clause stating that disputes of no more than a million dollars are to go to mediation, while disputes over a million dollars are to be resolved through arbitration. The federal district court denied a motion to compel arbitration and/or mediation, concluding it was premature to order either process. However, the court invited the affected parties to seek to suspend further proceedings against them until liability is clarified in the primary action.

Marathon Ashland Petroleum v. Selker Bros., 2006 WL 1878894 (N.D. Ohio)

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.