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.
This article first appeared in the St. Louis Lawyer, Dec. 2006, and was reprinted in The Insurance Receiver, Winter 2006 and at http://mediate.com/articles/young18.cfm (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.
Comments
Post a Comment