Sunday, June 23, 2013

The "What" of Mediation: Some Interesting Disputes Sent to Mediation

In 1999, Steven Keeva, the editor of the ABA Journal and author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, had this to say about ADR:

While alternative dispute resolution has made encouraging inroads over the last twenty years, the adversarial system continues to hover above ADR like an elephant over a chipmunk.

I now suggest to my students that, in less than a decade, the metaphor has completely changed.  ADR is now the elephant hovering over the chipmunk of litigation. 

For instance, a review of the ADR referral policies of the district judges in the United States District Court for the Eastern District of Missouri shows that the eight judges will refer almost all cases to mediation, especially if they present fact issues.  The judges do not make referrals when the cases involve: only questions of law; appeals from rulings of administrative agencies; habeas corpus and extraordinary writs; bankruptcy appeals; Social Security cases; and prisoner civil rights cases.  For most experienced mediators, even this list of excluded cases raises questions about why the judges have deemed these cases inappropriate for mediation. 

  All of us have heard about mediation of personal injury cases or child custody matters.  But a review of the headlines appearing over the past several years indicates the increasing use of mediation at earlier stages in the dispute – often pre-litigation – in an increasing variety of matters.

-                      White rap singer, Eminem, will use mediation to resolve the terms of his second divorce from his high-school sweetheart after a judicial settlement conference failed to bring the parties to agreement.

-                      African-American plaintiffs dropped a 38-year old lawsuit seeking desegregation of Tennessee’s college and professional school educational system after hammering out an agreement in court-ordered mediation six years earlier.

-                      The Securities and Exchange Commission mediated fraud claims of $800 million that it had filed against ousted chief executive of the HealthSouth Corporation.   Courts had already referred the company’s investors, in related lawsuits, to mediation. 
-                      A very public sexual harassment suit filed against the former sheriff of Roanoke, Virginia entered mediation in early 2006 by court order.

-                      Major League baseball requested a pre-suit mediation with Washington, D.C. after the city failed to approve, by a December 31, 2006 deadline, a lease for a new ball park designed for the Washington Nationals.   Without the lease -- the pre-cursor for the planned $535 million bond-funded stadium located in Southeast Washington -- the commissioner’s office would not sell the team, formerly the Montreal Expos, to the city. 

-                      A federal judge ordered Barry Scheck -- a prominent New York lawyer facing a $3 million malpractice suit for having missed court filing deadlines in a client’s rape and robbery case -- into mediation with the former client. 

-                      The family of deceased civil-rights icon, Rosa Parks, engaged in pre-suit mediation of allegations of undue influence with the people Ms. Parks appointed to handle her estate.  

-                      The Federal Aviation Commission, nearing impasse in its contract negotiations with unionized air traffic controllers, requested mediation. 

-                      The New Jersey Division of Youth and Family Services agreed to mediate with an advocacy group, Children’s Rights Inc., in an effort to prevent a take-over by the federal government of the state’s child welfare agency.   The advocacy group alleged that the state had failed to overhaul the system as agreed. 

-                      World Trade Center architect and master planner, Daniel Libeskind, entered mediation in an attempt to resolve his lawsuit for $843,000 in fees that he filed against the site leaseholder, Larry Silverstein.  Silverstein requested the mediation within a week of the lawsuit’s filing. 

-                      Mexico’s then-president Vincente Fox agreed to have his country act as a mediator between Columbia’s government and guerrillas in their forty-year conflict. 

-                      A judge ordered two younger teenage boys – accused of killing their father – to mediation with the prosecution after the judge ordered a new trial in a case carrying a 20-year to life sentence.

The use of mediation to resolve conflicts seems limited only by the support of courts, the will of the parties, and the creativity of their counsel.

This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at (footnotes in original omitted in the posting). The author does not intend to create an attorney-client relationship with any person who reads this posting.

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