Effective Use of Civil and Commercial Mediation in Poland: Part 2 (2/06/12)
Sylwester Pieckowski
Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters (“Polish Mediation Law”). The Law entered into force on December 10, 2005. This article discusses Polish mediation in civil matters.

Attorney’s Signature Not Sufficient for Binding Settlement Agreement When Party Is Present (1/10/12)
Keith Seat

A Georgia appellate court reversed a summary judgment which enforced a mediated settlement agreement based only on the signature of a party’s attorney when the party himself refused to sign the agreement and stormed out of the mediation. The appellate court concluded that with the party present and signature lines for both the party and attorney, there was no issue of apparent authority on which the lower court relied in enforcing the agreement.

Omni Builders Risk, Inc. v. Bennett, A11A1025 (Ga. Ct. App., November 29, 2011)

Federal Circuit Ducks Question of Federal Mediation Privilege (12/27/11)
Dennis Crouch
Diapers have been the subject of numerous patents and patent infringement lawsuits. In this case, K-C is suing its competitor, First Quality, for infringing more than a dozen diaper related patents.

Massive Federal Drug Litigations Turn to Mediation (11/29/11)
Keith Seat

GlaxoSmithKline has reached a $3 billion settlement of federal civil and criminal charges over the diabetes drug Avandia, and a federal judge has ordered mediation of the thousands of remaining patient claims. The judge appointed a mediator and set a 75-day deadline to resolve 85% of the remaining cases. Earlier this year, GlaxoSmithKline agreed to resolve over 10,000 patient cases for more than $700 million. In a separate matter involving multidistrict litigation against Merck over its Vioxx painkiller, a federal judge delayed litigation by state attorneys general a year ago to give time for global mediation. Merck has now agreed on payments to the states of Florida, New York and South Carolina, although the size of the settlements is confidential. Merck has paid $4.85 billion to settle patient lawsuits involving Vioxx.

MedCity News (November 9, 2011); Businessweek (November 15, 2011)

Technology in the CA Courts (11/21/11)
Colin Rule
This post examines the state of technology in the California courts, as well as its commitments to advancing the cause.

Alabama Mediation Program Successfully Reduces Civil Court Docket (11/21/11)
Chris Poole
A mediation program recently established in Alabama’s Lauderdale County Circuit Court has shown solid success resolving some of the most intractable cases headed for jury trial by using volunteer mediators and the authority of the court to encourage parties to use the alternative dispute resolution process.

Court Exceeded Authority in Enforcing Mediation Agreement (11/14/11)
Keith Seat

A Washington state court of appeals overturned and remanded a trial court’s order enforcing a settlement agreement reached in mediation because the lower court omitted a substantive provision agreed to by the parties (setting aside funds to cover future Medicare expenses). The appellate court also rejected the imposition of interest from the date of settlement rather than when performance was due, even though it concurred that a reasonable time for performance could be implied and that defendant took too long by not providing the first draft of a two-page release agreement for 58 days, and by not providing the second draft for 24 days after receiving proposed changes.

Firth v. Juanita Country Club Condominium Owners Ass’n, No. 66211-2-I (Wash. Ct. App., October 24, 2011).

Bankruptcy Court Upholds Limited Mediation Privilege in Connecticut (11/14/11)
Keith Seat

Based on a limited mediation privilege in Connecticut, a federal bankruptcy court concluded that the mediation statement in another case could not be disclosed, even after that case had ended. The court applied state rather than federal law on mediation privilege because all claims were based on state law. The court also noted that a settlement agreement approved by the court could not provide the basis for contempt because the agreement was not incorporated into the court’s order.

In re New England National, LLC, Adv. Pro. No. 10-3033, ECF No. 120, 124 (Bankr. D. Conn., October 24, 2011).

Court Permits Mediation with Only a Few Participating Plaintiffs (11/14/11)
Keith Seat

A federal trial court in Florida agreed to a proposal that the court-ordered mediation would occur with as few as three plaintiffs present, due to the large number of plaintiffs in the litigation, as long as plaintiffs had an opportunity to object to the proposed procedure prior to the mediation session and, as in a class action, the non-attending plaintiffs were able to object afterwards to any settlement reached at the mediation. The court noted that the non-attending plaintiffs must agree to maintain the confidentiality of mediation information they receive.

Figueiras v. Devereux Foundation, Inc., No. 1:09-cv-00227-MP-GRJ (USDC N.D. Fla., October 7, 2011).

The Penn State Debacle Will Surely Find Its Way Into Mediation (11/11/11)
James Melamed
In addition to the criminal actions associated with the Penn State sex abuse case, for which there will most likely in time be “plea deals” (negotiated results), it is certain that there will be many private civil actions for damages by the individuals and families that have been harmed. If those cases were to proceed through the courts, with certain appeals, the likely wait time would be 5 years or more. Mediation will surely offer a better option.

Why Mediation is Important (10/03/11)
Phyllis Pollack
In each of these cases, the Court’s ruling either shut the courthouse door completely in the plaintiff’s face or made it so prohibitively expensive, and/or time consuming to go forward that, in practical terms, the door to the courthouse is slammed shut.

Federal Circuit Unveils Model Order on E-Discovery in Patent Cases (10/03/11)
Victoria VanBuren
To address the problem of excessive costs of the discovery process, particularly in patent litigation, the Advisory Council of the Federal Circuit created recently a task force to draft a model rule for e-discovery governance.

Relative Effectiveness of Mediators and Attorney-Mediators in a Court Annexed Mediation Program (9/26/11)
Jim Lingl
Are attorney-mediators more effective than non-attorney mediators in resolving cases that are already in the court system? In order to provide insight into that question, and propose some answers, a 2009 study looked at all civil cases assigned to mandatory mediation by the Ventura County, California, Superior Court between January 1, 2005 and December 31, 2008.   2 Comments

“I Listen Better When I Can Talk” (and other disadvantages of videoconferencing in distance mediation) (9/26/11)
Susanna Jani
In a recent post, I explored some of the advantages of using computer-based videoconferencing platforms to conduct family mediations from a distance. In spite of our preference for these platforms, our distance mediation team recognizes that they also come with a number of disadvantages.

Mediation Helps Reduce Med Mal Litigation (9/06/11)
Keith Seat

The number of medical malpractice lawsuits filed in Pennsylvania declined for the sixth year in a row, with attorneys attributing the decrease to private mediation, among other changes. The current number of med mal lawsuits is now only about half the peak in 2002.

Beaumont Enterprise.com (May 22, 2011)

Tears Flow at Mediation (7/25/11)
Jim W Hildreth
I am glad that I played a role as a mediator in being a part of bringing a family together.

How to Talk and Listen Effectively in Mediation (7/25/11)
Thomas Repicky
Lawyers face a different set of challenges representing clients in mediation compared to trial   1 Comment

The Other ADR (7/18/11)
Diane Cohen
I recently had two unsatisfying small dollar amount purchases, which I would have never pursued in small claims court, but which got resolved happily through the strong arm of the credit card company in one case, and Amazon, in the other. I see this as a great ADR service by private companies with clout.

New Resources on CourtADR.org (7/18/11)
Jessica Glowinski
Here is a list of the new, abstracted resources that have been added to CourtADR.org

Federal Court in Texas Requires Party to Execute Comprehensive Agreement to Comply with Mediation Settlement Agreement (7/12/11)
Keith Seat

Parties signed a mediated settlement agreement which contemplated that a comprehensive formal agreement would be prepared and signed. When a dispute arose over details of the longer agreement, a federal court in Texas conducted a “tedious” examination of plaintiff’s objections and concluded that the formal agreement did not “materially differ” from the shorter signed agreement, and ordered plaintiff to sign the comprehensive agreement.

Alpert v. BAC Home Loans Servicing, LP, No. 3:09-CV-2095-B (U.S. N.D. Tex., May 9, 2011).

Oral Mediation Settlement Agreement Upheld in Kansas, Despite Need for Board Approval (7/12/11)
Keith Seat

In mediation, parties reached a settlement agreement which required formal approval by defendant’s board of directors. Prior to action by the board and before a written agreement was signed, plaintiff decided to “back out” of the settlement. The court, applying Kansas law, concluded that the parties intended an enforceable oral settlement agreement to be formed despite the condition precedent, and that defendant simply needed to act in good faith to obtain board approval. Although the court’s opinion made no mention of mediation confidentiality, both parties and the mediator waived confidentiality to permit disclosure of mediation information and the mediator’s testimony in court.

Stephenson v. Young, No. 10-2197-KHV (U.S. D. Kan., May 26, 2011); Editor’s Research

How Neutrals Can Provide Early Case Management of Construction Disputes (7/06/11)
John Lande
This article describes how neutrals can provide early case management and resolution services to help parties in construction disputes resolve them more efficiently.

Jones v. Halliburton/KBR: Trial Begins, Not Arbitration (6/27/11)
Victoria VanBuren
On May 5, 2011 Senator Franken introduced the Arbitration Fairness Act of 2011. If passed, the Act would ban mandatory pre-dispute arbitration clauses in employment, consumer, and civil rights cases.

Nine Ways for Counsel to Prepare for Mediation (6/19/11)
Daniel Ben-Zvi
Attorneys know how to prepare for trial: motions in limine, evidence, witness exams, and opening statements. How to get ready for mediation is not as obvious. Here are nine suggestions for counsel to best prepare for mediation.   1 Comment

Porter v. Wyner and Mediation Confidentiality: A Loose End in the Aftermath of California’s Cassel Decision (6/13/11)
Peter Huang
The case of Cassel v. Superior Court strengthened mediation confidentiality in California. But did it completely settle that legal issue? The case of Porter v. Wyner is a potential loose end in the wake of Cassel. Porter has taken a long, winding procedural road that hasn’t ended (and may have just started).