In re Marriage of Craze, 133 Wash. App. 1023 (Wash. Ct. App. 2006) (rejecting husband's argument that personal service of summons and petition of divorce should be deemed void because served at a mediation he was invited to from out of state, where husband and his counsel agreed to participate knowing wife wanted to dissolve the marriage in that state; that he had already been served under the state's long arm statute; and that she might serve him again in person).
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Emerson v. Commissioner of Internal Revenue, No. 5877-00, 2003 WL 1392574 (U.S. Tax Ct., March 20, 2003) (affirming IRS refusal to consider portion of mediated settlement of contract/intellectual property dispute non-taxable compensation for injuries or personal illness, where there was no mention during mediation of a claim for personal injuries, other than mediator's suggestion, subsequently acted on by the parties, to "add a personal injury claim to the suit as a vehicle to reach settlement"; rejecting IRS accuracy-related penalty for improperly excluding settlement proceeds as received on account of physical injury or sickness, since taxpayer had relied to his detriment on the suggestion of the mediator and his own attorney to include a claim for personal injury).
In re Non-Member of State Bar of Arizona, 152 P.3d 1183 (Ariz. 2007) (concluding that lawyer licensed to practice in Florida and Virginia engaged in unauthorized practice of law by representing sellers in private mediation of a real estate transaction dispute in Arizona.
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Home Depot, U.S.A., Inc., v. Saul Subsidiary I Ltd. Partn., 159 S.W.3d 339 (Ky. Ct. App. 2004) (affirming grant of mandatory injunction to demolish a retail store for owner's breach of land covenants, and rejecting claim that trial judge should have recused herself after conducting an unsuccessful mediation session instead of deciding the matter without an evidentiary hearing, where: 1) the Code of Judicial conduct specifically authorizes judges to "mediate or settle matters pending before the judge"; 2) the store owner suggested or at least acquiesced in the trial court's mediation efforts; and 3) there was no affirmative showing of bias or partiality, and absent such showing the trial court's hint that it might pass the case on to another judge if mediation was unsuccessful is alone insufficient to justify recusal), rehearing denied, Oct. 8, 2004.
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Smith Wholesale Co., Inc. v. Philip Morris USA, Inc., No. 2:03-CV-221, 2005 WL 1230436 (E.D. Tenn. May 24, 2005) (ordering defendant to pay plaintiffs' mediation expenses, including mediator's fees, as sanction for failure to mediate in good faith, where plaintiffs spent significant time preparing for, and traveling to mediation, and defendant refused to mediate after five hours but had previously failed to communicate to the court or opposing counsel that mediation was likely to be futile), order vacated upon reconsideration, 2005 WL 2030655 (August 23, 2005) (finding that neither party acted with "complete good faith" with respect to court's mediation order).
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Brooks v. Lincoln National Life Ins. Co., No. 8:05CV118, 2006 WL 2487937 (D. Neb. Aug. 25, 2006) (affirming award of sanctions against plaintiff's counsel for violating obligation in mediation order to negotiate with objective good faith by: (1) indicating plaintiff would not respond to the defendants' initial offer and directing the mediator to tell defendants they had five minutes to put a serious settlement offer on the table or plaintiff was leaving; 2) indicating defendants' second offer or proposal was unacceptable and unworthy of response, (3) not allowing the mediator to explain the defendants' offers, (4) not engaging in dialogue with defendants' counsel to correct what Brooks's counsel perceived as deficiencies in the mediation process, and (5) unilaterally terminating or abandoning the mediation process).
State v. Williams, 877 A.2d 1258 (N.J. 2005) (affirming assertion of mediation privilege to prevent mediator's testimony sought to support self-defense claim in assault case because state interest in protecting mediation confidentiality was not outweighed by defendant's need for the evidence where: 1) the mediator's testimony lacked reliability because the "mediator's description of the [mediation] session gives the overall impression of bedlam" and the mediator's post-mediation interest in the case, including attendance at trial after being notified of the trial date by defendant, raised concerns about mediator neutrality; and 2) the defendant was able to introduce other evidence supporting his self-defense claim).
Vitakis v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001) (remanding to trial court for consideration of wife's allegation that mediator committed misconduct by improperly influencing her and coercing her into agreement, noting an exception to the general rule that coercion and duress by a third party is insufficient to invalidate an agreement between principals).
Quote From The Court: "During a court-ordered mediation, the mediator is no ordinary third party, but is, for all intent and purposes, an agent of the court carrying out an official court-ordered function. We hold that the court may invoke its inherent power to maintain the integrity of the judicial system and its processes by invalidating a court-ordered mediation settlement agreement obtained through violation and abuse of the judicially-prescribed mediation procedures." 793 So.2d at 1099.
Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal., June 19, 2007) (denying joint motion to preliminarily approve proposed class action settlement and specifically rejecting assertion that involvement of a mediator helps prove lack of collusion).
Quote from the Court: "It is also no answer to say that a private mediator helped frame the proposal. Such a mediator is paid to help the immediate parties reach a deal. Mediators do not adjudicate the merits. They are masters in the art of what is negotiable. It matters little to the mediator whether a deal is collusive as long as a deal is reached. Such a mediator has no fiduciary duty to anyone, much less those not at the table. Plaintiffs' counsel has the fiduciary duty. It cannot be delegated to a private mediator."
In re Rains, 428 F.3d 893 (9th Cir. 2005) (concluding that bankruptcy court did not clearly err in finding a debtor mentally competent to enter into a mediated settlement, where witnesses to the day-long mediation testified that the debtor "participated actively and appeared to have full understanding of what was transpiring and of the terms of the settlement", notwithstanding that immediately following the conclusion of mediation the debtor drove himself to the hospital where he was admitted and diagnosed with a cerebral aneurysm and stroke and his treating physician and psychologist opined that a person with his diagnosis would not have had mental capacity to conduct business affairs).
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