On the face of it, the drought and late freeze in Kansas have been plenty hard enough, but the difficulties don't end with smaller yields and lack of forage. They sometimes mean struggles when the bills come due. To help farmers and ranchers, as well as lenders, work through legal and financial issues, the Kansas Agricultural Mediation Services offers free or low-cost services to farmers, ranchers and others. read
6/17:Is Nevada's foreclosure program effective?
Metrics that evaluate Nevada effort being made public - slowly. Eight months after a Reno Gazette-Journal article raised transparency concerns about the state’s foreclosure mediation system, administrators for the program have started to release more data to the public. read
6/17:Brooklyn becomes first borough to require mediation in civil cases
Brooklyn Supreme Court ushered in a new project Thursday requiring all civil cases to pass through a mediation process before proceeding to trial. The first of its kind, the mandatory mediation project hopes to alleviate some the costs and other strains that civil litigation places on Brooklyn’s court system.
“Brooklyn has over 54,000 cases pending which is more than any other county in New York” Hon. Lawrence Knipel, Brooklyn Supreme Court administrative judge for civil matters, told the Brooklyn Daily Eagle. “Mandatory mediation will hopefully reduce to time and financial costs of a trial not only for the county but for the attorneys and parties involved.” read
6/17:Mediation Underway in Dorner Mistaken Identity Shooting
A man mistakenly shot at by police during the manhunt for ex-police officer Christopher Dorner entered into mediation talks with attorneys for the city of Torrance Thursday. David Perdue, 38, was mistakenly shot at by Torrance police on Feb. 7 when officers rammed his pickup truck and then opened fire, according to his attorney. read
6/14:Redwood City Police Chief Identifying New Ways To Resolve Conflict
Redwood City's police chief, a Stanford Law School expert, and a local attorney will participate in panel discussion in San Mateo Thursday to focus on ways to manage conflicts. read
6/14:Mediation is an option for homeowners facing foreclosure in DC
Are you a District of Columbia homeowner facing foreclosure? If so, the city has a foreclosure mediation program that could help you save your home. This program lets homeowners and lenders discuss alternatives to foreclosure face-to-face. They reach agreement on average 80 percent of the time. read
6/14:Corporate Counsel: To Mediate, or Not To Mediate?
I'm a mediator of business disputes. But no one ever asks me whether or not they should mediate their dispute—by the time they get to me, they've decided to go ahead. Still, I have the nagging suspicion that plenty of cases don't get this far, because one or both of the disputants has decided not to mediate. So, I'm going to pretend that someone—namely, you—has actually come to me seeking advice on whether or not to mediate a particular dispute. read
6/10:Sex-tape lawsuit sent to mediation
The lawsuit centered around a tape featuring a Lowell woman allegedly having sex with a Buddhist monk is headed to mediation. All the parties in the lawsuit Maya Men filed against five men she alleges either produced or distributed the tape of her having sex in a North Chelmsford temple agreed Wednesday in Lowell Superior Court to seek time with a mediator in hopes of settling the suit. read
6/10:Civil and commercial mediation in Portugal: new legal principles and rules
On May 18th, 2013 the Law nr. 29/2013 concerning new general principles applicable to mediation conducted in Portugal and the legal regime for civil and commercial mediation entered into force. This new set of rules is intended to ease the flow of lawsuits piling up at the Portuguese courts and is another step in the reformation process Portugal is undertaking among the Judiciary, as recommended by the European Commission and other bodies. read
6/10:Sex-tape lawsuit sent to mediation
The lawsuit centered around a tape featuring a Lowell woman allegedly having sex with a Buddhist monk is headed to mediation. All the parties in the lawsuit Maya Men filed against five men she alleges either produced or distributed the tape of her having sex in a North Chelmsford temple agreed to seek time with a mediator in hopes of settling the suit. read
What superior persons seek is in themselves; what the small person seeks is in others.
What's New
Public Diplomacy Opportunities Arise When Conflict Resolution Is Applied (6/18/13) Jeff Thompson U.S. Under Secretary for Public Diplomacy and Public Affairs Tara Sonenshine explains how public diplomacy, through the use of conflict resolution skills, embraces both soft and hard power to create a "smart power". Although it is not an easy task, success is possible through collaborative efforts.
Engaging Lawyers as Partners in Mediation (6/14/13) Joel Lee I wrote in a previous entry about Encouraging Mediation – Recent Developments in Singapore. Those developments referred to court-based initiatives that made it necessary for lawyers to bring to their clients’ attention the possibility of turning to ADR to resolve their matter as well as the courts taking into account the parties’ conduct in relation to mediation when awarding costs.
Annulment: What Are the Rules on the Rules? (6/14/13) Mallory Silberman In Victor Pey Casado and President Allende Foundation v. Chile, the annulment respondents introduced their own annulment claim nearly two years into an annulment proceeding initiated by Chile (the annulment applicant). Had this claim been considered a “counter-claim” for annulment, the committee might have considered whether counter-claims — governed by Article 46 of the Convention and therefore not expressly covered by Article 52(4) — are admissible in annulment proceedings.
Elements of an Unsuccessful Negotiation Strategy (6/03/13) Phyllis Pollack Negotiation strategy and legal malpractice claims have much in common. This point struck me as I read an article in the California state e-bar journal dated May 2, 2013, listing ten items that can lead to a legal malpractice claim. Looking through them, I realized that many of them will also lead to an unsuccessful negotiation, if not poor negotiation strategy.
Tells (6/03/13) Joe Markowitz Anytime we are withholding information, we are engaged in a form of deception. Whichever parties are being deceived--and that usually means both sides--are going to do their best to find out the truth.
The Arbitration Fairness Act of 2013 (5/28/13) Phyllis Pollack One can imagine the impact this arbitration ruling has had since its issuance two years ago. All large companies can now compel consumers to file individual arbitration claims to pursue their rights. But, if the claim is like that of the Concepcions'- $30.22- who is going to pursue it and as importantly, what attorney will even handle it?
Business As Usual? Mediation and the Justice System (5/19/13) Charlie Irvine 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? (5/17/13) Cynthia Alkon 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? (5/17/13) 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.
Mediation Case Law Video: Enforcing Oral Mediation Settlement Agreement (5/13/13) James Coben 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 (5/11/13) 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 (5/08/13) 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 (5/06/13) Randy Drew 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? 5 Comments
Increasing Referrals to Small Claims Mediation Programs (5/03/13) 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 (3/22/13) Beth Graham 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 (3/15/13) Jennifer Shack 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 (3/08/13) Lance Soskin 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. 2 Comments
Judicial Activism and eDiscovery (3/08/13) 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 (3/08/13) James Coben 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 (3/07/13) James Coben 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?
Compelling Mediation (3/01/13) Phyllis Pollack 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.
Court Update (2/22/13) Joe Markowitz 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 (2/01/13) Uma Ramanathan 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) (1/25/13) Mint TV 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 (1/18/13) Scott Silverman 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. 1 Comment
New Rules (1/18/13) Joe Markowitz 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.
Compulsory Mediation (1/11/13) Paul Randolph 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. 2 Comments
The Growing Role of ADR in Multidistrict Litigation (1/11/13) Chris Poole 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 (1/02/13) James Melamed 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? (12/08/12) Don Cripe 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 (11/30/12) John Bratt 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 (11/30/12) Jill Gross 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? (11/26/12) Stuart Dutson 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.
Defense Research Institute Poll Shows Most People are Confident in the Fairness of Our Civil Courts (11/11/12) John Bratt A poll recently released by the Defense Research Institute found that an overwhelming majority of respondents found that our civil courts are fair. Check out the DRI’s release, explained below. Note that the headline says “41% Doubt Fairness of Civil Courts” when the article explains that 58% expressed confidence in court decisions.
Mediation is Underused in Civil Cases (11/10/12) Don Cripe 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? (11/10/12) 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 (10/19/12) 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 (10/19/12) Kim Taylor 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?
