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Federal Judge Comments on “Why Isn’t ADR More Popular?”
By Victoria VanBuren - July 21, 2010
By U.S. District Judge W. Royal Furgeson, Jr. Dear Friends: I have read with interest “Why Isn’t ADR More Popular? A Report from Harvard.” From my perspective as a judge, I would recommend that lawyers be very careful about inserting mandatory arbitration language into their client’s contracts. First, I see a great deal of buyer’s remorse in cases where there is a mandatory arbitration clause that leaves a party no c
GUEST-POST PART IX | Questions Clients Have about Mediation: What Happens in Mediation?
By Victoria VanBuren - July 19, 2010
By Kent B. Scott and Cody W. Wilson Every mediation is unique. The mediator will work with the parties and counsel to devise the appropriate format for the mediation. In general, however, mediation has four stages: Opening joint session The mediation usually begins with a joint session. At this session, the parties will be seated and the mediator will introduce everyone to each other. The mediator will also set out some rules of appropriate condu
GUEST-POST PART VIII | Questions Clients Have about Mediation: Is the Mediator Like a Judge? What Should I Bring to the Mediation? What Should I Wear to the Mediation? How Long Will the Mediation Last?
By Victoria VanBuren - July 13, 2010
By Kent B. Scott and Cody W. Wilson Is the Mediator Like a Judge? Clients who are learning about mediation for the first time invariably want to know whether the mediator can adversely affect their core interests in the dispute. The answer is “no” because the mediator must be neutral and remain so throughout the proceedings. The mediator is not a decision maker and has no authority to require the parties to settle. The decision to settle belongs
GUEST-POST PART VII | Questions Clients Have about Mediation: Who Should I Bring to the Mediation?
By Victoria VanBuren - July 6, 2010
By Kent B. Scott and Cody W. Wilson Who Should I Bring to the Mediation? Client representatives. More is not better. The attorney and client should bring one or two employees who know the facts of the dispute. The problem is that often the employees most involved in a dispute have a vested interest in protecting their personal turf. Counsel and the client may have to decide how to handle an employee who was intimately involved in the dispute but
GUEST-POST PART VI | Questions Clients Have about Mediation: How Do We Get Started?
By Victoria VanBuren - June 29, 2010
By Kent B. Scott and Cody W. Wilson How Do We Get Started? There are many things for counsel and the client to do prior to mediating. A key task is to prepare the client to participate in the mediation. This is essential to a successful mediation outcome, because unlike arbitration and litigation, in which counsel for the parties do most if not all of the talking, mediation involves client participation. However, some clients feel more comfortabl
GUEST-POST | Rent-a-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy
By Victoria VanBuren - June 23, 2010
By James M. Gaitis With the issuance of the United States Supreme Court’s decision in Rent-a-Center, West, Inc. v. Jackson, the foundational principle of party autonomy in arbitration has suffered yet another blow. In essence, and as was fairly and pejoratively described in what may well be Justice Stevens’ last opinion (dissenting, as it was), the majority’s “breezy” and “fantastic” decision in Rent-a-Center, West decrees that that even when a s
GUEST-POST | Professor Alan Scott Rau Comments on Rent-A-Center, West, Inc. v. Jackson
By Victoria VanBuren - June 22, 2010
By Alan Scott Rau One really needs a few days to absorb the importance of cases like this—I know instant punditry is increasingly de rigueur, but I’m quite uneasy with it. Anyway, with that caveat, one could say the following: The doctrinal importance of the case seems swamped by the overwhelming reality that arbitration, at least in adhesion contracts, has become something of a political football: Apparently “to decide that cla
GUEST-POST PART V | Questions Clients Have about Mediation: How Do We Get the Mediator to See It Our Way? When and Where Should We Mediate?
By Victoria VanBuren - June 22, 2010
By Kent B. Scott and Cody W. Wilson How Do We Get the Mediator to See It Our Way? The client who asks this question has not understood the mediation process. This client erroneously believes that it must persuade the mediator that it has the best case. Thus, the client must be reminded that the mediator does not decide the dispute, so persuading the mediator is not the goal. The goal is to persuade the decision maker for the adversary that it is
GUEST-POST PART IV | Questions Clients Have about Mediation: The Mediation Settlement
By Victoria VanBuren - June 15, 2010
By Kent B. Scott and Cody W. Wilson Will a Settlement in Mediation Be Enforceable? The answer is “yes” if the settlement is memorialized in a written settlement document that is signed by all parties and their counsel. The settlement agreement is not confidential and can be enforced in court just like any other contract. However, if called upon to enforce a mediation settlement, the court will look only at the face of the document because, as we
GUEST-POST PART III | Questions Clients Have about Mediation: Would My Mediation Be Confidential?
By Victoria VanBuren - June 8, 2010
By Kent B. Scott and Cody W. Wilson For mediation to work the way it is supposed to, the parties must be willing to speak candidly with the mediator, and they will not do this unless they know that the mediation is private and what they say and do in mediation will be kept confidential. Given the need for confidentiality, is there a legal basis for it? There is no federal law protecting mediation communications, although there are protections for
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