What's New
What High-Low Agreements Can Do for You: Settlement Structures Part III (12/23/08)
John DeGroote The fiscal year ends in just two weeks, and for some reason your client’s auditors keep focusing on that Acme Tool case. It’s been around all year, but somehow they won’t let go of Acme’s claim for punitive damages. You know punitives are out of the question and your opponent probably knows it, too, but accountants aren’t much for hunches. Since the case isn’t ready for settlement, Acme Tool’s claim makes its way to your auditor’s punch list for later discussion. Do you have a choice here?
(12/17/08)
Keith Seat
The U.S. International Trade Commission has launched a pilot mediation program for section 337 investigations, as an initial step towards a permanent mediation program. Participation by parties in the pilot program is voluntary. The program relies on pro bono mediators, most of whom also mediate in the U.S. Court of Appeals for the Federal Circuit. While mediation is confidential and the Commission investigative attorney will not participate or have knowledge of the mediation, the investigative attorney may review any settlement agreement that results from mediation in order to make a recommendation on whether the settlement is in the public interest.
U.S. International Trade Commission Notice 73 Fed. Reg. 65,615 (November 4, 2008); Pilot Mediation Program Information
(11/05/08)
Keith Seat
Montana farmers are considering a proposal to use mediation to resolve disputes over grain freight rates with BNSF Railway. Grain producers currently are not considered shippers by the Surface Transportation Board despite paying the freight, and must rely on grain elevator companies to file cases. The proposed agreement with BNSF would first rely on mediation and then resolve any remaining issues with binding arbitration by an independent arbitration board.
Great Falls Tribune (October 16, 2008)
(9/23/08)
Keith Seat
After a 74-acre commercial project was blocked by the Columbia (MO) City Council, the developer entered into mediation with two neighborhood associations and, after nearly a month of negotiations, agreed to add a layer of restrictions on the development, which was sufficient to obtain City Council approval. The developer concluded that the mediation process improved plans for the development, but one of the neighborhood association leaders expressed frustration by the confidentiality of the mediation process when dealing with community issues.
Columbia Daily Tribune (August 19, 2008); Columbia Daily Tribune (August 17, 2008); Columbia Daily Tribune(July 11, 2008) (Subscription Required)
Commercial Mediation Survey (9/10/08)
Geoff Sharp Over the last couple of months I have polled, in a fairly unscientific way, some busy commercial litigators who I know to integrate mediation into their practice rather than simply using it to fight fires in an ad hoc kind of way.You may be interested in their answers to questions like these;>Rank the relative significance of these factors when picking a mediator
>Rank the relative significance of these factors when picking...
Evaluative Mediation Techniques Help Achieve Success (9/01/08)
Jeff Kichaven A March 2008 report of the American Bar Association's Task Force on Improving the Quality of Mediation confirms what is obvious to all who participate in commercial mediation: There is "overwhelming support" for the conclusion that lawyers want mediators to provide "analytical input," or, as we more commonly call it, "evaluative mediation." The marketplace has spoken.
(8/13/08)
Keith Seat
The Maryland Department of Agriculture is encouraging farmers to mediate disputes with neighbors, family, government agencies and lenders using the Maryland Agricultural Conflict Resolution Service (ACReS). Mediation services are available at modest or no cost, depending on income levels, with a free initial consultation and shared costs if additional sessions are needed. Under state legislation passed in 2006, mediation is sometimes required prior to filing suit against an agricultural operation.
US State News (July 29, 2008) (Subscription Required)
Business Mediation:A Better Way To Resolve Workplace Conflict (8/11/08)
Marta J. Papa In a situation where there is no process for eliminating conflict other than litigation, resentments build up and productivity plummets. Currently, we are seeing a trend toward solving conflict in the workplace through mediation rather than litigation or other more traditional methods of dispute resolution.
Negotiating Bankruptcy (8/05/08)
Victoria Pynchon My favorite local bankruptcy mediators Ben Siegel of Buchalter (left) former bankruptcy judge Herb Katz (right)Bankruptcy mediation catches on nationwide
A decade ago, there were only a handful of mediation programs in bankruptcy courts.
Long associated with family law disputes, mediation programs were slow to catch on in complex business litigation, including bankruptcy cases.
But that's changing.
More than two-thirds of the 90 bankruptcy courts have mediation available, according to...
(7/30/08)
Keith Seat
On June 18, Connecticut enacted wide-ranging mortgage relief and industry reform legislation, which included a foreclosure mediation program. The law requires lenders to tell delinquent borrowers about the mediation program when seeking foreclosure. If the borrower chooses mediation, lenders are required to participate, which could delay foreclosure by 60 days or longer.
Hartford Courant (June 20, 2008)
A Model Letter For A Model Mediation (7/30/08)
David Franzel These "lessons learned" come from the experiences of highly seasoned litigators and in house counsel utilizing mediation services.
(7/16/08)
Keith Seat
The Civilian Board of Contract Appeals (which resulted from the 2007 consolidation of numerous contract appeals boards) published final rules to clarify procedures for alternative dispute resolution, among other things. The Board encourages ADR even on matters not before it, noting that mediation is most often used, but many other processes are available. The rules permit a panel judge to act as an ADR neutral and then (if ADR has not been fully successful) to resume work as a judge, if desired by the parties. The parties are to enter an ADR agreement specifying the neutral, the type of ADR desired, scope of related discovery and timing and location of ADR. However, use of ADR does not toll any statutes of limitation.
Wileyrein.com (May 14, 2008); Explanation of Final Rule (May 12, 2008); 48 C.F.R. 6101.54 (Subscription Required)
(6/18/08)
Keith Seat
A debt recovery service in the U.K. attributes its rapid growth to focusing on mediation rather than litigation. In addition to obtaining payment, the service seeks to rebuild business relationships between its clients and their debtors, and brings a friendly approach to its work. However, the service emphasizes that it has a 100% win rate in the small number of cases it is forced to take to court.
ic Wales (U.K.) (May 30, 2008)
(6/06/08)
Keith Seat
Corporate counsel and representatives at an American Bar Association forum stated that mediation is losing its effectiveness because mediators do not have sufficient race and gender diversity, especially in employment matters. The panelists noted that the national alternative dispute resolution (ADR) providers do not offer diverse panels, and that diversity occurs when it positively impacts the bottom line. For example, Shell is introducing diversity among neutrals by contracting with certified minority and women neutrals, and by seeking more diversity at larger ADR firms.
Prudent Press Agency (Netherlands) (May 7, 2008)
Congress Negotiates the Foreclosure Crisis (5/26/08)
Victoria Pynchon UPDATE: IF YOU FOLLOW THIS LINK TO FORBES.COM COVERAGE OF THE FORECLOSURE CRISIS AND CLICK ON THE HIGHLIGHTED WORD "FORECLOSURE" YOU'LL FIND A WEALTH OF MATERIAL, INCLUDING VIDEOS, ON THE SUBJECT. See, for instance, this great post on "bailing out" homeowners at the Calculated Risk Blog here (found by clicking on the Lingo bubble on the Forbes.com site above.In this morning's Los Angeles Times, staff writer Maura Reynolds explains how -- and...
The Concept of Reciprocity in Mediation (5/19/08)
Jeff Kichaven I received a startling e-mail from a prominent Southern California judge. The reality he reflects should cause the commercial mediation community to reject two clods of conventional wisdom. To satisfy clients, commercial mediators must learn to love—not disdain—"evaluation." Commercial mediators must also remember to love—and again, not disdain—lawyers.
Where were the mediators in the Microsoft-Yahoo negotiations? (5/19/08)
Diane J. Levin Collaborative lawyer and ADR professional David Hoffman, in an op-ed in the Christian Science Monitor, asks, “Microsoft and Yahoo: Where were the mediators?“
David makes the strong case that mediation could have made all the difference, getting these digital technology giants to yes:
In the Microsoft-Yahoo negotiations, a mediator could have helped in several concrete ways.
First, since disagreements about the price of a company usually turn on financial predictions, mediators can help the...
Microsoft and Yahoo: Where Were the Mediators? (5/12/08)
Colin Rule David Hoffman in the 5/12 Christian Science Monitor: "When Microsoft CEO Steve Ballmer met with Yahoo CEO Jerry Yang earlier this month, what kept them from making a deal? With Microsoft offering $33 per share for Yahoo's stock, and Yahoo willing to take $37, was there truly an unbridgeable gulf? The $4 gap seems trivial in comparison to the potential value of the deal. So did Microsoft and Yahoo walk away from a deal that would have made both sides better off? This type of bargaining failure...
(3/18/08)
Keith Seat
Statutory changes in Florida have streamlined the mediation process required prior to litigation of certain disputes between homeowners and members. The aggrieved party now can contact the other party directly with a written offer to mediate as set forth in the statute and propose a choice of five certified mediators. Seeking mediation in this way tolls the statute of limitations. If the dispute goes on to litigation or arbitration, attorneys’ fees incurred in the mediation may be recovered by the prevailing party. But those who do not participate in the entire mediation process may not recover any attorneys’ fees or costs.
The News-Press (February 28, 2008); Fla. Stat. § 720.311
IP Mediator Michael Young's "Girls Gone Wild" Commentary Catches Court's Attention (3/17/08)
Victoria Pynchon From ALTERNATIVES TO THE HIGH COST OF LITIGATION, INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 3 MARCH 2008UPDATE: DESPITE MEDIATION RELATED INCARCERATION, GIRLS GONE WILD FOUNDER IS HEADED FOR MORE ADR A federal judge has rejected a recusal motion from the maker of the Girls Gone Wild videos, who challenged the judge’s impartiality for first ordering mediation, and then sending the producer to jail for contempt based on his ADR conduct. That means the ...
Capitalizing On Mediation: The Power Of Promoting Awareness For Business Efficiency (2/11/08)
Alessandra Sgubini In today’s business market, successful and efficient businesses recognize the numerous benefits of mediation and possess the
willingness to engage in cooperative negotiations with the help of an impartial third party. This article addresses the importance of promoting the
awareness of mediation as an effective conflict resolution tool for businesses in all fields based on proven evidence that it saves immeasurable time and capital especially for businesses across the board.
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