DOCSLIB.ORG

Is Contractually Required Mediation of Business Disputes a Waste of Time?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Is Contractually Required Mediation of Business Disputes a Waste of Time? G THE B IN EN V C R H E S A N 8 D 8 B 18 AR CE WWW. NYLJ.COM SIN VOLUME 261—NO. 93 WEDNESDAY, MAY 15, 2019 Outside Counsel Expert Analysis Is Contractually Required Mediation of Business Disputes a Waste of Time? usinesses are increasingly of controlling these and other costs, mediating complex business but they cannot be avoided entirely. disputes before filing law- (2) Unexpected and even retaliatory By suits or going to arbitration. Conna A. counterclaims may be asserted by the This is sometimes required Weiner defendants. I have mediated a number Bas part of a “step” or “waterfall” clause of cases where counterclaims became providing for mediation as one condi- the main event. In at least one of these tion precedent to litigation. Is requiring cases, the defendants told me without perhaps unwilling partners to dance a “check the box” exercise on the way avoid public fights with collabora- to litigation? Is it simply too early? tors, customers or regulators that Requiring business parties on I posit that requiring business par- can negatively affect their businesses; the brink of litigation to hit a ties on the brink of litigation to hit and focus on driving their business controlled mediation pause but- a controlled mediation pause button objectives. ton with the help of a business- with the help of a business-oriented It is therefore critically important to oriented mediator and the right mediator and the right process and focus business clients on the effects of participants almost always makes the filing of litigation. It can be too easy process and participants almost sense. Using the techniques outlined to say that “we need to show that we always makes sense. here can make pre-litigation mediation are serious” or to use the commence- successful in many more business dis- ment of litigation to “gain leverage.” reservation that they would have not putes than lawyers might expect—to While these may be legitimate strat- have asserted the claim without hav- the likely delight of their business cli- egies in certain circumstances, the ing been sued first. ents. following factors should be carefully (3) Taking the step into litigation Do Not Underestimate the Near- considered: inevitably hardens the parties’ posi- Term Effects of Filing a Lawsuit. (1) Litigation expenses can be imme- tions and increases conflict. Rather Business leaders generally desire to diate and significant. A litigation team than being intimidated into surren- preserve current and potential future will need to be assembled to conduct dering, business leaders can become business relationships, or at least to a reasonable investigation of the facts, infuriated. Potentially exacerbating end them quickly and efficiently in document holds will need to be imple- this reaction is the change in person- a way that makes business sense; mented, and an e-discovery vendor nel from the business to lawyers to will need to be retained to deal with litigators, which inevitably changes document discovery. Conscientious the perspective with which the busi- CONNA A. WEINER is a neutral at JAMS. outside counsel do an excellent job ness disputants—now combatants— WEDNESDAY, MAY 15, 2019 view the situation. The focus will (1) Set aside, for the moment, a (2) Set time limits. The clause should shift from what is fair, reasonable and litigation mindset. Any sophisticated set clear time limits on the process, practical from a business perspec- business mediation requires a willing- subject to extension by the parties. tive going forward to a retrospective ness to compromise, look forward and Once a set period expires, for exam- analysis of who was right and who avoid focusing on winning, account- ple, the parties should be able to pur- was wrong. ability or right and wrong. The best sue litigation (or perhaps, by contract (4) Unless parties agree quickly to result might be a renegotiated agree- or agreement, arbitration). Seeking settlement negotiations, the business ment or a negotiated termination with injunctive relief could be an exception loses control over the outcome of the multiple parts that entertains some as well. The clause should also require case and the opportunity for flexible, form of continuing relationship. As some of the preparation steps outlined business-focused remedies. Litigation, described below, a willingness to below. however, often takes on a life of its share information in order to get to (3) Give business representatives own; from both technical and momen- the bottom of things and value a case and business lawyers major roles. To tum perspectives, it can be difficult to early are critical to success. A media- keep the mediation focused on busi- stop. Settlement off-ramps are pushed tor may also recommend direct com- ness solutions, have business repre- further into the future because of this munications between business clients sentatives (both executives and func- dynamic. and—with the permission of counsel— tional personnel), inside counsel and (5) It is also important to remind direct communications between her transactional lawyers play major roles clients of the expense, disruption and those clients in order to improve from the start. In several of my mat- and uncertainty of litigation, and the the chances of a successful business ters, litigators have played important years it can take to get to trial—all resolution. roles behind the scenes, but they have for a very uncertain result. Someone All this is not necessarily the kind in a corporate legal department may of process to which trial lawyers are well be responsible for continuing to accustomed. Viewing the negotiation Making the most of the pre- justify the decision to keep pursuing as a problem-solving, forward-looking litigation moment is worth the an expensive case during business exercise and ceding some control over investment. budget reviews. the flow of information and client con- Steps to Pre-Litigation Mediation tact can be difficult. As my colleague elected not to attend the in-person ses- Success. Avoiding these issues and Yarko Sochynsky has noted, transition- sions. This is not always appropriate, dynamics should help encourage ing from a litigation advocate to the of course, but it can be one way of set- upfront investment in a negotiated lead negotiator in a mediation does ting the tone to ensure that the busi- solution, but what are the chances not come naturally to everyone. ness decision-makers and experts are of success? Getting parties involved Certainly, parties can and should guiding the business negotiations. And in a process like what is described expect litigators to advise them on having transactional lawyers involved below may ameliorate some of the their litigation chances and expect is critical to help with developing and common objections to early media- mediators to understand their argu- documenting the parties’ agreements. tion, keep a focus on a business solu- ments and push hard to get the parties (4) Select the right mediator. Differ- tion and convert the skeptical, as the to evaluate their risks realistically, but ent mediators have different experi- momentum created by a more objec- this should not overwhelm attention ences and skill sets. For a complex tive negotiated process with the help to commercial solutions. The best business case that will involve, for of a knowledgeable neutral moves the lawyers and business mediators are example, a significant adjustment/ parties forward. able to conduct the mediation on two renegotiation/multiple-part termina- The following tips are helpful in all separate tracks: (a) a business negotia- tion, a mediator with both litigation complex business mediations but are tion track, informed to an appropriate and hands-on transactional and busi- particularly important in a pre-litiga- extent by (b) an assessment of litiga- ness negotiation experience may well tion context: tion risk. be preferred. As suggested above, two- WEDNESDAY, MAY 15, 2019 track mediation analysis, consisting what they think already; we have (f) Conduct email and telephone of an assessment of the chances of been arguing about this for a year” follow-up sessions (involving the prevailing in court and a detailed, only to find that when the parties mediator as an observer or sound- informed discussion of business terms sit down to define their current ing board) to draft definitive agree- and workarounds, could be critical to understanding of the facts and law, ments. What constitutes success achieving success. A mediator with additional issues arise. This work in a business mediation should be hands-on business negotiation and saves time in the mediation by carefully considered; it need not even industry experience has many obviating the need for legal open- be a final settlement if a road map tools with which to assist the parties ing statements and/or relying upon for future discussions is identified. in considering their options and to run the mediator to pass basic posi- This expanded procedure is often a mediation business negotiation ses- tions back and forth when direct more realistic and certainly more con- sion. communication ahead of the ses- sistent with the look and feel of a busi- (5) Think of mediation as a process sions can be more efficient and ness negotiation. Complex business involving preparation, in-person ses- effective. arrangements are rarely negotiated sions and follow-up. For a pre-litigation (c) Exchange information, key in just one day. complex business case, the typical documents and perhaps even Ultimately, making the most of the in-person mediation session should external expert opinions on dis- pre-litigation moment is worth the be viewed as only one part of a more puted technical issues, which will investment. It greatly increases the nuanced mediation process emphasiz- take the place of the litigation dis- likelihood of settlement in the early ing preparation and follow-up, much covery phase to the extent practi- stages.
Load more

Recommended publications
  • Court Annexed Mediation Rules for Civil Litigation
    COURT ANNEXED MEDIATION RULES FOR CIVIL LITIGATION I. Policy. II. Cases Appropriate for Referral to Mediation. III. Referral of Civil Cases. IV. Authority to Settle. V. Mediation. VI. Sanctions. VII. Confidentiality of Communications in Mediation. VIII. Effect of Written Settlement Agreement. IX. Cost of Mediation. X. Administration Functions Concerning Mediation. XI. Effective Date of Plan. XII. Termination of Existing Pilot Mediation Program. XIII. Suspension and Termination of the Plan. XIV. Reporting Requirements. XV. Standards of Conduct for Mediators. COURT ANNEXED MEDIATION RULES FOR CIVIL LITIGATION These rules shall govern the referral of cases by the Circuit, Chancery and County courts of this state to mediation. I. POLICY It shall be the policy of the courts of the State of Mississippi (1) to encourage the peaceable resolution of disputes and early settlement of pending litigation by voluntary action of the parties, and (2) to identify cases appropriate for referral to mediation pursuant to the guidelines set out in these rules. II. CASES APPROPRIATE FOR REFERRAL TO MEDIATION All Civil cases shall be considered appropriate for referral to mediation in the discretion of the court, giving consideration to such facts as the subject matter of the case, the amount in controversy, the complexity of the case, the number of parties, the interest of the parties in pursuing mediation, the availability of mediation, and the likelihood of settlement by mediation. III. REFERRAL OF CIVIL CASES Civil Cases may be referred to mediation in the following manner: A. Any circuit, chancery and county court in this state may, either on its own motion or on the motion of any party, determine that a case is appropriate for mediation.
    [Show full text]
  • Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges
    Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges Caroline Rees Harvard Kennedy School February 2010 ⎪ Working Paper No. 56 A Working Paper of the: Corporate Social Responsibility Initiative A Cooperative Project among: The Mossavar-Rahmani Center for Business and Government The Center for Public Leadership The Hauser Center for Nonprofit Organizations The Joan Shorenstein Center on the Press, Politics and Public Policy 1 Citation This paper may be cited as: Rees, Caroline. 2010. “Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges” Corporate Social Responsibility Initiative Working Paper No. 56. Cambridge, MA: John F. Kennedy School of Government, Harvard University. Comments may be directed to the author, [email protected]. Corporate Social Responsibility Initiative The Corporate Social Responsibility Initiative at the Harvard Kennedy School of Government is a multi-disciplinary and multi-stakeholder program that seeks to study and enhance the public contributions of private enterprise. It explores the intersection of corporate responsibility, corporate governance and strategy, public policy, and the media. It bridges theory and practice, builds leadership skills, and supports constructive dialogue and collaboration among different sectors. It was founded in 2004 with the support of Walter H. Shorenstein, Chevron Corporation, The Coca-Cola Company, and General Motors. The views expressed in this paper are those of the author and do not imply endorsement by the Corporate Social Responsibility Initiative, the John F. Kennedy School of Government, or Harvard University. For Further Information Further information on the Corporate Social Responsibility Initiative can be obtained from the Program Coordinator, Corporate Social Responsibility Initiative, Harvard Kennedy School, 79 JFK Street, Mailbox 82, Cambridge, MA 02138, telephone (617) 495-1446, telefax (617) 496-5821, email [email protected].
    [Show full text]
  • Online Dispute Resolution Pilot Program Report
    Online Dispute Resolution Pilot Program Report Recommendations from the Online Dispute Resolution Workgroup of the Commission on Trial Court Performance and Accountability and the Committee on Alternative Dispute Resolution Rules and Policy January 2021 Online Dispute Resolution Workgroup Members The Honorable William F. Stone, Circuit Judge, First Judicial Circuit, Chair Mr. Matthew Benefiel, Trial Court Administrator, Ninth Judicial Circuit The Honorable Gina Beovides, Circuit Judge, Eleventh Judicial Circuit Ms. Heather Blanton, Human Resources Manager, Twelfth Judicial Circuit Mr. Eric Dunlap, Florida Supreme Court Certified Mediator The Honorable Stephen Everett, Circuit Judge, Second Judicial Circuit Dr. Oscar Franco, Florida Supreme Court Certified Mediator Mr. W. Jay Hunston, Florida Supreme Court Certified Mediator Ms. Jeanne Potthoff, ADR Director, Seventeenth Judicial Circuit The Honorable William Roby, Circuit Judge, Nineteenth Judicial Circuit Mr. Christopher Shulman, Florida Supreme Court Certified Mediator Staff Support Provided by the Office of the State Courts Administrator Lindsay Hafford, Senior Court Operations Consultant Judith Ivester, Court Operations Consultant Kimberly Kosch, Senior Court Operations Consultant Victor McKay, Court Operations Consultant Susan Marvin, Chief of Alternative Dispute Resolution Hengel Reina, Senior Court Analyst II Page 2 Table of Contents Executive Summary ........................................................................................................................ 4 Introduction
    [Show full text]
  • Compilation of Sample Mediation Clauses
    Compilation of Sample Mediation Clauses Alternative Dispute Resolution Committee of the New York City Bar Association June 8, 2016 THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 42 West 44th Street, New York, NY 10036-6689 www.nycbar.org Introduction This Compilation of Sample Mediation Clauses was created by a subcommittee of the Alternative Dispute Resolution (“ADR”) Committee of the New York City Bar Association, with the goal of providing practitioners with useful language to incorporate into contracts if they wish to provide for mediation as a dispute resolution mechanism.1 The samples have been collected from a number of legal subject matter areas, but are by no means exhaustive; nor are they intended as models to be incorporated without review or modification. Rather, they should be viewed as starting points, to be adapted by counsel as appropriate to fit the specific needs and circumstances of each situation. Note to Drafter: It is important to note that many of the clause provisions are relatively interchangeable and can be used in multiple subject matter areas. Also, because the clauses in this compilation are samples, they may be either over-inclusive or under-inclusive for your specific situation. For example, not all clauses in this compilation contain comprehensive provisions on the method of appointing a mediator, tolling the statute of limitations, or determining the location of a subsequent arbitration proceeding should mediation fail. Conversely, they may contain provisions that are not necessary or appropriate for certain situations. You should work with a lawyer who is experienced in drafting dispute resolution clauses in your industry to review and adapt the best sample clause or clauses that fit your circumstances.
    [Show full text]
  • Negotiation and Mediation Techniques for Natural Resource Management
    Negotiation and mediation techniques for natural resource management CASE STUDIES AND LESSONS LEARNED Negotiation and mediation techniques for natural resource management CASE STUDIES AND LESSONS LEARNED Edited by Alfonso Peter Castro and Antonia Engel Prepared in the framework of the Livelihood Support Programme (LSP) An interdepartmental programme for improving support for enhancing livelihoods of the rural poor FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS ROME, JANUARY 2007 The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. All rights reserved. Reproduction and dissemination of material in this information product for educational or other non-commercial purposes are authorized without any prior written permission from the copyright holders provided the source is fully acknowledged. Reproduction of material in this information product for resale or other commercial purposes is prohibited without written permission of the copyright holders. Applications for such permission should be addressed to the Chief, Electronic Publishing Policy and Support Branch, Communication Division, FAO, Viale delle Terme di Caracalla, 00153 Rome, Italy or by e-mail to [email protected] © FAO 2007 Foreword and Acknowledgements This publication is part of a series of training materials on natural resources conflict management devel- oped by FAO’s Livelihood Support Programme. It supports the discussions presented in Negotiation and mediation techniques for natural resource management (2005) – a conceptual guide – by sharing recent, real-life experiences of Africans who have used the processes and principles of consensual negotiation and mediation to address natural resource conflicts.
    [Show full text]
  • AGREEMENT to MEDIATE IMPORTANT NOTICE: Pursuant to Federal Law 34 C.F.R
    District Of Columbia Office of the State Superintendent of Education Office of Dispute Resolution 810 First Street, NE, 2nd Floor, Washington, DC 20002 (202) 698-3819 • www.osse.dc.gov AGREEMENT TO MEDIATE IMPORTANT NOTICE: Pursuant to Federal law 34 C.F.R. §300.506(b)(1)(i), and 34 C.F.R. §303.431(b)(1)(i) the mediation process is to be voluntary on the part of the parties. If any party does not agree to participate in Mediation, the request for mediation will be closed and no Mediation will be held. Since Mediation is voluntary for the parties, if at any point during the Mediation proceedings, a party deter- mines that they no longer desire to participate in Mediation that party may immediately notify the Mediator and the Mediation proceedings will end. ABOUT THE AGREEMENT TO MEDIATE 1. The parties consent to have the appointed individual act as a Mediator in this matter. 2. The Mediator shall act as an advocate for resolution, and shall use his or her best efforts to assist the parties in reaching a mutually acceptable agreement. 3. The parties understand that the Mediator is not an employee of OSSE, DCPS, or any District of Colum- bia public charter school. The Mediator is acting in a neutral capacity and is not acting as an attorney for any party to the Mediation. Further, the Mediator is not providing legal advice, nor is the Mediator a judge or a hearing officer. 4. The parties agree to have present or available for immediate contact by phone or other electronic com- munication, persons with adequate settlement authority to resolve the dispute among the parties.
    [Show full text]
  • The Pros and Cons of Online Dispute Resolution: an Assessment of Cyber-Mediation Websites
    THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN ASSESSMENT OF CYBER-MEDIATION WEBSITES Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise. Numerous websites have been established to help resolve these Internet disputes, as well as to facilitate the resolution of disputes that occur offline. This iBrief examines and evaluates these websites. It argues that cyber-mediation is in its early stages of development and that it will likely become an increasingly effective mechanism for resolving disputes as technology advances. Introduction Online dispute resolution (“ODR”) can take place either entirely or partly online and concerns two types of disputes: those that arise in cyberspace and those that arise offline.1 As Internet usage continues to expand,2 it has become increasingly necessary to design efficient mechanisms for resolving Internet disputes because traditional mechanisms, such as litigation, can be time-consuming, expensive and raise jurisdictional problems.3 Offline disputes, on the other hand, can be addressed with traditional dispute resolution mechanisms supplemented with 1 For a general discussion of the types of disputes that ODR encompasses, see Richard Birke, Louise Ellen Teitz, American Law in a Time of Global Interdependence: National Reports to the XVITH International Congress of Comparative Law: Section II U.S. Mediation in 2001: The Path that Brought America to Uniform Laws and Mediation in Cyberspace, 50 AM. J. COMP. L. 181, at 206-07 (2002); Louse Ellen Teitz Providing Legal Services for the Middle Class in Cyberspace: The Promise and Challenge of On-line Dispute Resolution, 70 FORDHAM L.
    [Show full text]
  • Mediation Case Law Review and Some Ethics.Pdf
    MEDIATION AND ARBITRATION CASE LAW REVIEW AND SOME ETHICS ADVANCED MEDIATION VIRTUAL TRAINING UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN GRAND RAPIDS, MICHIGAN MARCH 19, 2021 LEE HORNBERGER Arbitrator and Mediator Introduction This update reviews Michigan appellate cases concerning mediation and arbitration. This review uses a short form citation style for Court of Appeals unpublished cases. MSA is short for Mediated Settlement Agreement. State Bar of Michigan Diversity Pledge. https://www.michbar.org/diversity/pledge https://www.michbar.org/file/diversity/pdfs/commentary.pdf Supreme Court Administrative Order No. 2020-23 – Professionalism Principles for Lawyers and Judges https://courts.michigan.gov/Courts/MichiganSupremeCourt/rules/court-rules- admin-matters/Adopted/2019-32_2020-12-16_FormattedOrder_AO2020-23.pdf Disclosures, Hartman, and Report of AGC Hearing Panel Report of Hearing Panel in Grievance Administrator, Attorney Grievance Commission, Case No 16-143-GA (August 8, 2019). This case arose under SCAO former Standards of Conduct for Mediators (effective until January 31, 2013), not SCAO's current Mediator Standards of Conduct (effective February 1, 2013). This is part of the Hartman v Hartman, 304026 (August 7, 2012), saga. Hartman concerned same person being arbitrator and mediator and post- arbitration/mediation conduct of arbitrator-mediator and defense counsel. When mediation failed, parties agreed to arbitrate using mediator as arbitrator. Arbitrator issued awards covering minor issues. Before arbitration on major issues, parties agreed to again mediate utilizing arbitrator as mediator. This mediation failed. Parties then reached settlement agreement on their own. At entry of judgment hearing, plaintiff said he had concerns about arbitrator acting as neutral. Hearing was continued.
    [Show full text]
  • Appendix A. Mediation Clause in Sales Contract
    Appendix A. Mediation Clause in Sales Contract Any dispute or claim arising out of or relating to this contract, the breach of this contract or the services provided in relation to this contract shall be submitted to mediation in accordance with the Association’s Dispute Resolution System. Disputes shall include representations made by the buyer(s), seller(s) or any real estate broker or other person or entity in connection with the sale, purchase, financing, condition or other aspect of the property to which this contract pertains, including without limitation allegations of concealment, misrepresentation, and/or negligence. Any agreement signed by the parties pursuant to the mediation conference shall be binding. The following matters are excluded from mediation hereunder: a. judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or land contract b. an unlawful detainer action c. the filing or enforcement of a mechanic's lien d. any matter which is within the jurisdiction of a probate court, or e. violation of a state's real estate license laws. The filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the right to mediate under this provision, nor shall it constitute a breach of the duty to mediate. By initialing in the place below, you hereby acknowledge that you have received, read, and understand the Buyer-Seller Guide for Initiating Mediation for the association’s Dispute Resolution System and agree to submit disputes as described above to mediation in accordance with the Dispute Resolution System.
    [Show full text]
  • Florida Rules of Civil Procedure Rule 1.720. Mediation
    Florida Rules of Civil Procedure Rule 1.720. Mediation Procedures (a) Interim or Emergency Relief. A party may apply to the court for interim or emergency relief at any time. Mediation shall continue while such a motion is pending absent a contrary order of the court or a decision of the mediator to adjourn pending disposition of the motion. Time for completing mediation shall be tolled during any periods where mediation is interrupted pending resolution of such a motion. (b) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. If a party to mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Otherwise, unless stipulated by the parties or changed by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present: (1) The party or its representative having full authority to settle without further consultation. (2) The party’s counsel of record, if any. (3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
    [Show full text]
  • Online Dispute Resolution Information Sheet
    ONLINE DISPUTE RESOLUTION STATE OF CONNECTICUT INFORMATION SHEET SUPERIOR COURT JD-CV-169 New 12-18 www.jud.ct.gov For cases filed on or after January 2, 2019 ONLINE DISPUTE RESOLUTION (ODR) Pilot Program in the Judicial Districts of Hartford and New Haven What is Online Dispute Resolution? Online Dispute Resolution (ODR) is a pilot program available in the Judicial Districts of Hartford and New Haven to help parties resolve Contract Collections (C40) cases in a simple, quick and low-cost way. ODR may save time - most cases resolve within 90 days of the referral to ODR. It may save money - you can participate from anywhere at almost any time, usually without having to take time off from work or other commitments to come to the courthouse. No extra fee is charged for using ODR. What should I know before I agree to use Online Dispute Resolution? • ODR is voluntary: both parties must agree to use Online Dispute Resolution to resolve their case. • ODR is only available in Contract Collections cases. These are disputes based on one party claiming that the other failed to pay money owed to them. • Either party can opt out of the ODR Program within fifteen days of the date the case was referred to the program. • Both parties must participate in mediation. By agreeing to use ODR, you give up your right to: • Have a jury trial or appear in person to present your case to the court at a formal evidentiary hearing. • File an appeal from any decision made by the court on your case.
    [Show full text]
  • Liabilities and Immunities of Mediators: a Hostile Environment for Model Legislation
    The Liabilities and Immunities of Mediators: A Hostile Environment for Model Legislation ARTHUR A. CHAYKIN* I. INTRODUCTION: THE COMPLEX LEGAL LANDSCAPE OF MEDIATOR LIABILITY A. The Liability Landscape in Context The topic of mediator liability' is both difficult and controversial. 2 The role of the mediator is complex and varies depending on the precise context in which the mediator is operating.3 A plaintiff seeking to sue * Associate Professor of Law, Northern Illinois University College of Law. B.A. 1976, Brandeis University; J.D. 1980, Boston College Law School; Currently Visiting Associate Professor of Law, University of Pittsburgh School of Law-Ed. The author would like to thank Richard Larsen and Mary Agrella, students at Northern Illinois University College of Law, for their valuable research assistance. 1. In a previous article, I attempted to demonstrate that mediators needed to consider the possibility of liability. See Chaykin, Mediator Liability: A New Role for Fiduciary Duties?, 53 U. CIN. L. REV. 731 (1984). That article was a conservative attempt to show that functionable liability theories existed, especially in the family mediation context. Id. at 736-39. I attempted to show that the law of fiduciary duties would subject mediators to liability in certain cases, even if no other tbeory of liability could be adapted. Of course, one problem with a theory of fiduciary duty is that it will not often enable plaintiffs to pursue the kind of consequential damages that are possible when the theory is professional malpractice or negligence. In the present Article, I provide a more comprehensive view of the various liability theories for the purpose of providing a background against which intelligent decisions concerning the propriety of model legislations may be made.
    [Show full text]