Resolute Systems, LLC

Celebrating over 30 years of award winning service, Resolute is one of the nation’s largest Alternative Dispute Resolution (ADR) providers.

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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: The article is short, on point, and might give you some ideas for how to question your next potential mediator.
Continue Reading Do You Interview Potential Mediators? If So, Here’s A Helpful Resource.

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
Continue Reading Are Your Mediation Communications Confidential?

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
Continue Reading Do You Need This Language in Your Mediated Settlement Agreement?

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
Continue Reading What To Do When Parties Attribute Bad Faith Motives To Each Other

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
Continue Reading A New Twist on a Contractual Mediation Requirement

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
Continue Reading Securing Binding Mediation Agreements in a Virtual World

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
Continue Reading Enforcing a Mediation Confidentiality Provision

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
Continue Reading What Can You Do With New Facts Learned In Mediation?

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
Continue Reading Is A Mediation A “Lawsuit?”

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
Continue Reading Require Mediation Before Arbitration

Using two mediators, generally referred to as the “co-mediation,” is fairly common in community mediation organizations, but less common in commercial cases. Using two mediators in a commercial case is more likely an option in larger value cases that justify the cost of hiring two mediators, but if all parties can agree to use that approach, it can provide a real boost to the process.
There are certain specific uses of co-mediation, such as multi-party cases, where the co-mediators can deal with more than one party at a time, or cases calling for multiple areas of expertise. But the primary
Continue Reading Does It Make Sense To Use Two Mediators?

In In re Anne Elder Kershaw, No. 2018-031 (S.V.I), the Supreme Court of the Virgin Islands affirmed the denial of a motion for pro hac vice admission based on the following facts. The non-Virgin Islands counsel in question filed a motion in the trial court to be admitted pro hac vice that was granted, but …
Continue Reading Do You Need Pro Hac Vice Admission to Represent a Client in Mediation?

The earlier a case can be settled the better. But what is the right moment to attempt a mediation?  While it is good to try to mediate as early as possible, some mediations fail because the parties find out they were not yet ready to have a meaningful settlement discussion. Guided Choice is a process where the …
Continue Reading Guided Choice Dispute Resolution – A New Approach That Might Boost A Mediation’s Chances Of Success

It is not uncommon in a complex case for the parties to reach a settlement during a mediation, reflected in a written, signed, settlement term sheet, but also intend to later draft and sign a more formal and comprehensive document. The law is clear that if the agreement reached during the mediation includes all the “material” …
Continue Reading Making Sure Your Mediation Settlement Is Binding