XIV. ALTERNATIVE DISPUTE RESOLUTION: MEDIATION Flashcards
A. Referral
Example [February 1998 #6; July 2000 #9; February 2001 #12]: Suppose plaintiff filed suit against defendant for breach of a contract to repair plaintiff’s house. Plaintiff waited patiently for one year while discovery was conducted. Plaintiff would like to resolve the case by mediation. Can the plaintiff’s attorney force the defendant to attend the mediation?
yes. The plaintiff’s attorney can file a request with the court for mediation. A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure including mediation. However, a court cannot order mediation in a case covered by the Federal Arbitration Act without the agreement of all parties.
B. Participation
Example [February 1998 #7; July 1999 #12; February 2001 #12]: Suppose a mediation is held but defendant offers nothing to plaintiff. Instead, defendant swaggers and sneers that he will never pay anything to plaintiff because he does not like him, regardless of whether he has a meritorious case. Can plaintiff seek sanctions against the defendant for his conduct, require that he return to a second mediation, and negotiate in good faith by making realistic offers to plaintiff?
yes and no . The court may impose sanctions for refusal to participate in a court-ordered mediation. However, the court may not impose sanctions for refusing to settle, nor may the court order the parties to mediate in good faith.
C. Compensation
Example [February 1998 #8]: Suppose the court has ordered a mediation in a case pending on its docket. May the court compel payment of a mediator appointed under the A.D.R. statutes?
yes. The court may set a reasonable fee for the services of a mediator appointed to facilitate an A.D.R. procedure. Unless the parties agree to a method of payment, the court will tax the fee for the services as a cost of the suit.
D. Settlement
Example [February 1998 #10]: Suppose plaintiff sues defendant for personal injuries and the case is ordered to mediation. At mediation, the parties agree to settle for a payment of $10,000 and the execution of mutual releases. The mediator had all parties sign a written agreement to that effect. The next day, plaintiff informs her attorney that she was too hasty in settling and that she is sure she can get more money at trial. The defense attorney wants to enforce the written agreement and files a “Motion to Enter Consent Judgment.” Can the court properly enter a consent judgment upon proof of the signed settlement agreement?
no. A consent judgment cannot be entered unless at the time the judgment is rendered, all parties consent to the judgment. Since plaintiff has withdrawn her consent before rendition, a consent judgment would be improper.
E. Confidentiality
Example [February 1998 #11; July 2000 #10; July 2003 #8; July 2004 #19; February 2005 #17; February 2007 #15; February 2008 #17; July 2008 #18; February 2010 #14; February 2011 #11, #15; July 2011 #18]:
Suppose plaintiff sued a corporate defendant and a subsidiary for breach of contract. Assume that the case was ordered to mediation and it was unsuccessful in resolving the dispute. During the mediation, the corporate defendant’s president admitted in the presence of the mediator that its subsidiary was a “shell” that never had any assets and was established as a means of insulating the corporate parent from liability. At trial, can defendant’s president be impeached with the statement made during the mediation? May plaintiff call the mediator as a witness to testify about the statement?
no. The president cannot be impeached, nor can the mediator be called as a witness to testify. The A.D.R. statute provides that neither the party nor the mediator may be compelled to disclose to any other person, including the court, any confidential info given to the mediator by any party unless the parties agree otherwise.
