Do you interview potential mediators to determine, among other factors, their style of mediation? If so, here’s a link to an article that goes beyond the overly simplistic “evaluative” and “facilitative” categories to examine some of the different approaches mediators can take: https://www.mediate.com/articles/lande-unified-conceptual.cfm. The article is short, on point, and might give you some ideas for how to question your next potential mediator.
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Are Your Mediation Communications Confidential?
The Illinois Uniform Mediation Act provides that, with narrow exceptions, communications in a mediation are privileged and, if the mediation agreement so provides, confidential. Since most mediation agreements provide that all mediation communications are confidential, it would appear that, on the surface, comments made in a mediation are protected against most attempts to use them outside of the mediation.
However, in Thiems v. United Fire & Cas. Ins. Co. (S.D. Ill. March 26, 2021), the plaintiff sued their insurance carrier based on conduct in a prior lawsuit, and the plaintiff sought to admit into evidence remarks by a mediator during
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Do You Need This Language in Your Mediated Settlement Agreement?
In Choksi v. Choksi (Tex. App. 2020), the Texas court of appeals examined the impact of the following language in a mediated settlement agreement:
“This binding mediated settlement agreement is not subject to revocation and is not appealable.”
The parties no doubt inserted this language in an effort to thwart a “buyer’s remorse” situation where one party tries to back out of a settlement, which is just what eventually happened. The plaintiff refused to honor the agreement, arguing in response to a motion to enforce that it was entered into under duress and was based on a mutual mistake of
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What To Do When Parties Attribute Bad Faith Motives To Each Other
Nearly all mediations involve parties that view the same facts in a very different light. But in a great many mediations, the parties go further: they are convinced the other side is not taking its position in good faith, but rather is knowingly lying or engaging in some nefarious scheme. It is, for example, all too common in a commercial mediation to walk into one caucus room and be told that the other side knows it is lying on a particular point, and they walk in the other caucus room and hear the identical assertion.
Why is this phenomenon so
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A New Twist on a Contractual Mediation Requirement
Arbitration clauses are increasingly common in both commercial and consumer contracts, and some of those clauses now require that the parties mediate before commencing an arbitration. Such a clause can be beneficial because, while parties all know the advantages of an early settlement, many litigators view an early request for mediation as tantamount to an acknowledgment of the weakness of their position. A contractual mediation requirement enables early settlement discussions without triggering this real or perceived problem.
One problem with such mediation clauses, however, is that they can be difficult to enforce. The remedy for a violation of such a
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MEDIATING HOME DISPUTES
Working from home presents some brand-new challenges: your spouse is with you 24-7; your kids are home and attending school online; and you cannot leave the confines of your home. So, this creates an opportunity to mediate some home-bound issues.1. What do we watch on TV? Imagine a lovely evening with your family sharing the experience of watching a film; this is a fantasy of mine because we cannot agree on a movie. I struggle with the violent films the men here like and they dislike the lighter rom-coms or Jane Austen-ish movies I watch. The easy mediated solution is to separate and choose to watch
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Virtual Mediation Technology Glitches
We are soooooooooo dependent upon our technology during this pandemic. Most of my communication with co-workers and attorney-colleagues is through email and text.Even phone calls with my smart phone (which sometimes seems too smart… like creepy smart) have become complicated when I use my Bluetooth earpiece and it seizes the call whether I want it to or not.At my house, I play music using “Hey Google” and I joke that you need an Engineering degree to turn on the television.Just like the rest of the world, mediation and arbitration have become even more dependent upon technology during the pandemic. We are
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Securing Binding Mediation Agreements in a Virtual World
It is critical, at the end of a successful mediation, to secure a binding agreement to the material terms of the settlement, even if the parties intend to later draft a more formal document. This is typically done by having the parties agree to a settlement term sheet. What you want to avoid is creating any delay in making this term sheet binding, because any delay gives a chance for a party to experience buyer’s remorse and try to back out of the deal.
Securing agreement to the term sheet at the end of a virtual mediation can be tricky unless the
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COFFEE WITH A SIDE OF KINDNESS
Starbucks holds a special place in my heart; I am a regular coffee drinker and by now my local store knows not only my name, but also my dog’s name. The other day I was in line ready to order and overheard the customer in front of me laughing about her magic Starbucks card that showed a $0.18 balance but just keeps on working. She used her magic card to pay and stepped off to the side to wait for her order. Before I could mutter “Grande Cappuccino with Skim Milk,” my barista informed me their system was acting up and I could
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Enforcing a Mediation Confidentiality Provision
In Tellis v. LeBlanc, (W.D. La. 2020), in the course of litigating a motion to strike a jury demand, the defendant cited facts it had learned in a prior unsuccessful mediation about the nature of the plaintiff’s case. The plaintiff moved for sanctions based on defendant’s use of that information because the communications in the mediation were supposed to have been privileged and confidential. The court agreed that the use of the information was improper, but found no evidence that the defendant had acted in bad faith, and therefore denied the request for sanctions. The court noted that the disclosure was made for
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What Can You Do With New Facts Learned In Mediation?
In Homes v. Navigators Specialty Ins. Co. (E.D. Tex., 2019), the plaintiff filed a complaint, six months later the parties mediated unsuccessfully, and a week later the plaintiff sought to amend the complaint to add new parties. The court denied the motion to amend in part because the plaintiff delayed seven months before seeking to amend when the plaintiff had all the necessary information at the time the case was first filed.
While this holding is fairly straightforward, in its discussion the court noted that had new facts supporting the amended complaint first been learned in the mediation, the amendment might
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MED-ARB
Med-Arb! The worst nickname ever … or maybe the best nickname ever because it quickly informs the reader of the basic concept. Never fear, I have completed numerous med-arbs (one of the few mediators who actually has) and there are good reasons to use med-arb.So, what is this strange creature? Med-Arb uses the same Alternative Dispute Resolution (ADR) professional to act as both mediator, and if mediation is unsuccessful, to serve as an arbitrator. Clients love this concept, especially its efficiency. Time is money and med-arb takes advantage of saved time in educating only one ADR professional about the dispute. I remember in a mediation,
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Is A Mediation A “Lawsuit?”
In Ill. Tool Works, Inc. v. Ace Specialty Ins. Co., 2019 Ill. App 181945 (1st Div. 2019), the plaintiff received a letter threatening a lawsuit (a copy of a proposed complaint was attached), but inviting the plaintiff to participate in a mediation to resolve the matter. The plaintiff accepted the invitation and the matter settled. The defendant insurer then refused to pay the costs of the mediation because the policy provided that the insurer owed a defense only for “suits.” The court agreed, noting that a mediation, by itself, is not a “suit.” The court further noted that the
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WHY WE LIKE THINGS TO REMAIN THE SAME
Have you visited Disney World lately? I just returned from a family vacation to the Magic Kingdom and I had such a strong sense of pleasure wandering from one favorite attraction to the next. Flying with Peter Pan, floating on the boats of “It’s a Small World” as the song becomes stuck in my mind and walking down Main Street peeking in the windows. I was not alone; there were plenty of other adults, unaccompanied by any kids, meandering from ride to ride.Why? Why do we love Disney World? For me, it is the sameness. I visited Disney as a kid, returned with my kids and
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MEANINGFUL MEDIATIONS WITH PRO SE PARTIES
Can you mediate with pro se parties … meaningfully?40% of State Court litigants are pro se. (“Pro se” means individuals or corporations who do not hire an attorney to represent them in the dispute) 20% of federal court litigants are pro se. Staggeringly high numbers, right?I mediate cases with pro se parties and, while some of my colleagues will not, I will. Pro se parties want and need to participate in mediation; it is part of the larger system of justice in our country so I accept mediations directly with the parties. However, my first comment to the pro se parties is that they should
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Require Mediation Before Arbitration
Parties are increasingly including a mediation provision in their contractual arbitration clauses, requiring an aggrieved party to mediate before filing an arbitration. Although one might wonder about the success rate of mediations that take place when a party is forced to do so by contract, any settlements achieved so early in the process result in enormous cost savings. It would seem, therefore, that the downside of a contractual mediation requirement – a wasted day in an unsuccessful mediation – would be outweighed by even the slim chance of being able to settle before litigation is filed.
Courts have typically enforced
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