For the past eight years, as part of the annual Minnesota State Bar Association ADR Institute, Hamline Professor James Coben has been producing short videos illustrating mediation litigation. On this website, you will find 42 of the videos, organized by type of disputed mediation issue. There is also a "Top Dozen" listing. For each video you click on, you will be directed to a short case summary and a windows wmv or quicktime video file. Feel free to use these videos in your teaching and training. There is no charge for use; we ask only that you notify us (jcoben@hamline.edu) that you are using the videos and describe the context. Whenever, the videos are shown, please attribute them in the following way: Produced by Professor James Coben and the Minnesota State Bar Association.
Special thanks to Jodie Dulac and Justin Rooney for video production assistance and to the ADR Institute Players for their creativity and improvisation skills:
| Ellen Abbott | Mark McCrea |
| David Allgeyer | Marilyn McKnight |
| Hugh Bishop | Lara Nafziger |
| James Coben | Rebecca Picard |
| Ken Fox | Sukh Singh |
| Aimee Gourlay | Jenelle Soderquist |
| Joe Kenyon | Gary Weissman |
| Michael Landrum | Robert Williams |
| David Lauth | Eduardo Wolle |
| Bobbi McAdoo | Jeanne Zimmer |
For reasons that will become obvious when you view the videos, please also provide your audience with the following disclaimer:
Some of the video enactments you are about to see portray "less than optimal" mediator prerformance. Rest assured that you are not at risk by hiring any of the ADR Institute Players as neutrals (or lawyers), despite what you see on the tape.The videos are fictional reenactments of the mediations underlying the published litigated cases. The "scripts" were developed solely by reading the written trial or appellate court decision - by no means a perfect window into what actually happened in a particular case.
If you only have time for a "Top Dozen"
A Simple Mediator Mistake Leading to Big Problems
Catamount Slate Products, Inc. v. Sheldon, 845 A.2d 324 (Vt. 203)
Crossing the Line on Evaluation
Vitakis v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. Ap. 201)
Those All-Day Mediations -- Maybe We Should Reassess?
In re Rains, 428 F.3d 893 (9th Cir. 2005)
The Perils of Judicial Mediation
Home Depot, U.S.A., Inc. v. Saul Subsidiary I Ltd. Partn., 159 S.W. 3d 339 (Ky. Ct. App. 2004)
A "Dark View" of Class Action Mediation
Kakini v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal. June 19, 2007)
The Pitfalls of Multi-Jurisdictional Practice
In re Non-Member of State Bar of Arizona, 152 P.3d 1183 (Ariz. 2007)
How Confidential Should Mediation Be?
State v. Williams, 877 A.2d 1258 (N.J. 2005)
A Study in Mediator Creativity
Emerson v. Commissioner of Internal Revenue, No. 5877-00, 2003 WL 1392574 (U.S. Tax Ct., March 20, 2003)
An Endorsement for Asymmetric Mediation
Smith Wholesale Co., Inc. v. Philip Morris USA, Inc., No. 2:03-CV-221, 205 (WL 1230436 (E.D. Tenn. May 24, 2005), order vacated upon reconsideration, 205 WL 2030655 (August 23, 2005)
Sanctions - Be Careful What You Wish For
Brooks v. Lincoln National Life Ins. Co., No. 8:05CV118, 206 WL 2487937 (D. Neb. Aug. 25, 2006)
Non-adversarial? Yea, right.
In re Marriage of Craze, 133 Wash. App. 1023 (Wash. Ct. App. 2006)
Read Before You Sign
In re O.R. v. J.R., No. E034376, 2004 WL 585583 (Cal. App. Mar. 25, 2004)
ENFORCEMENT
- Buckley v. Shealy, 635 S.E.2d 76 (S.C. 2006)
- Catamount Slate Products, Inc. v. Sheldon, 845 A.2d 324 (Vt. 2003)
- Chesney v. Hypertension Diagnostics, Inc., No. A05-2210, 2006 WL 2256590 (Minn. App. Aug. 8, 2006)
- Estate of Barber v. Guilford County Sheriff's Department, 589 S.E.2d 433 (N.C. App. 2003)
- Fair v. Bakhtiari, 19 Cal.Rptr.3d 591 (Cal. Ct. App. 2004), review granted, 104 P.3d 98, 23 Cal.Rptr.3d 295 (Cal. Jan. 12, 2005).
- Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. Dist. Ct. App. April 11, 2006)
- Guthrie v. Guthrie, 594 S.E.2d 356 (Ga. 2004)
- In re O.R. v. J.R., No. E034376, 2004 WL 585583 (Cal. App. Mar. 25, 2004)
- In re Rains, 428 F.3d 893 (9th Cir. 2005)
- In re Terrence, 833 N.E.2d 206 (Ohio Ct. App. 2005)
- Kakani v. Oracle Corp., No. C 06-06493 WHA, 207 WL 17693774 (N.D. Cal., June 19, 2007)
- Ledbetter v. Ledbetter, 163 S.W.3d 681 (Tenn. 2005)
- Lee v. Lee, 158 S.W.3d 612 (Tex. Ct. App. 2005)
- McDermott v. City of North Olmsted, Ohio, 178 Fed.Appx. 515 (6th Cir. April 27, 2006)
- Ryles v. Palace Hotel, No. C 04-5326 SBA, 206 WL 3093678 (N.D. Cal. Oct 27, 2006)
- Vitakis v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001)
- Zimmerman v. Zimmerman, No., 04-04-0034-CV, 2005 WL 1812613 (Tex. App. Aug. 3, 2005)
CONFIDENTIALITY
- Angelella v. Pittston Township, No. 3:06-CV-00120, 2007 WL 2688724 (M.D. a. Sept. 11, 2007)
- Murray v. Talmage, 151 P.3d 49 (Mont. 2006)
- Rojas v. Los Angeles County Superior Ct., 93 P.3d 260 (Cal. 2004)
- State v. Williams, 877 A.2d 1258 (N.J. 2005)
- Uniform Mediation Act overview (as part of "fictional" mediator opening statement)
SANCTIONS
- Allapattah Serv., Inc. v. Exxon Corp., 454 F.Supp.2d 1185 (S.D. Fla 2006)
- Brooks v. Lincoln National Life Ins. Co., No. 8:05CV118, 2006 WL 2487937 (D. Neb. Aug. 25, 2006)
- In re Fletcher, 424 F.3d 783 (8th Cir. 2005)
- Irwin Seating Co. v. Int'l Bus. Mach, Corp., No. 1:04CV568, 2006 WL 3446584 (W.D. Mich. Nov. 29, 2006)
- Lawson v. Brown's Home Day Care Center, Inc., No. 2003-112, 2004 WL 1586888 (Vt. July 8, 2004)
- Smith Wholesale Co., Inc. v. Philip Morris USA, Inc., No. 2:03-CV-221, 2005 WL 1230436 (E.D. Tenn. May 24, 2005), order vacated upon reconsideration, 2005 WL 2030655 (August 23, 2005)
ETHICS/MALPRACTICE
- Hall v. Cohen, No. 270949, 2007 WL 258311 (Mich. App. Jan. 30, 2007)
- Home Depot, U.S.A., Inc., v. Saul Subsidiary I Ltd. Partn., 159 S.W.3d 339 (Ky. Ct. App. 2004), rehearing denied, Oct. 8, 2004.
- In re Non-Member of State Bar of Arizona, 152 P.3d 1183 (Ariz. 2007)
- In re Philpot, 820 N.E.2d 141 (Ind. 2005)
- Morgan Phillips, Inc. v. JAMS/Endispute, L.L.C., 44 Cal.Rptr.3d 782 (Cal. Ct. App. 2 Dist. June 20, 2006)
- Sealed Party v. Sealed Party, No. CIV.A.H-04-2229, 2006 WL 1207732 (S.D. Tex. May 4, 2006)
- Shake v. The Ethics Committee of the Kentucky Judiciary, 122 S.W.3d 577 (Ky. 2003)
- Simpson v. JAMS/Endispute, L.L.C., No. A110634, 2006 WL 2076028 (Cal. App. 1 Dist. July 26, 2006)
- Statewide Grievance Committee v. Kennelly, No. CV040833515S, 2005 WL 758055 (Conn. Super., Feb. 25, 2005)
- Wimsatt v. Superior Court, 61 Cal.Rptr.3d 200 (Ct. App. 2007)
MISCELLANEOUS
- Emerson v. Commissioner of Internal Revenue, No. 5877-00, 2003 WL 1392574 (U.S. Tax Ct., March 20, 2003)
- In re Marriage of Craze, 133 Wash. App. 1023 (Wash. Ct. App. 2006)
- Kline v. Berg Drywall, Inc., 685 N.W.2d 12 (Minn. 2004)
- U.S. Steel Mining Co., L.L.C. v. Wilson Downhole Serv., No. 02:00CV1758, 2006 WL 2869535 (W.D. Pa. Oct 5, 2006)
ENFORCEMENT
Buckley v. Shealy, 635 S.E.2d 76 (S.C. 2006) (affirming decision not to enforce mediated divorce settlement last seen at the mediator's office in 1997, where it is unclear what happened to the signed agreement, and the family court never entered a signed copy of the agreement in the record).
Buckley video
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Catamount Slate Products, Inc. v. Sheldon, 845 A.2d 324 (Vt. 2003) (reversing trial court and refusing to enforce alleged oral mediated settlement where intent of the parties to be bound was not established in light of: 1) an unsigned agreement to mediate discussed orally with the parties which expressly stated that mediation would not be "binding upon either party unless reduced to a final agreement of settlement"; 2) post-mediation letters implying that settlement was not final; and 3) evidence suggesting that material elements of a global settlement remained to be negotiated after conclusion of mediation):
Quote from the Court: "[I]n their brief appellants encourage us to hold that a signed writing be required to bind parties to a mediated settlement even when there is no precondition of an intent not to be bound until execution of a final written document. We expressly decline to do so. As we reiterated here, parties to a mediated settlement are free to enter into a binding oral contract without memorializing their agreement in a fully executed document, even if they intend to subsequently reduce their agreement to writing. But, when parties communicate an intent not to be bound until they have achieved a final executed settlement agreement, oral agreements and draft provisions created during and after mediation will not alone constitute the formation of a binding contract."
Catamount Video
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Chesney v. Hypertension Diagnostics, Inc., No. A05-2210, 2006 WL 2256590 (Minn. App. Aug. 8, 2006) (affirming trial court conclusion that mediated memorandum agreement is binding and enforceable despite parties' failure to complete a more comprehensive settlement document, where the memorandum agreement included Civil Mediation Act advisories and specifically noted the parties' intent not to have their settlement be dependent on the subsequent, more comprehensive, settlement document).
Chesney video
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Estate of Barber v. Guilford County Sheriff's Department, 589 S.E.2d 433 (N.C. App. 2003) (1. A plaintiff's obligation not to defame a wrongful death action defendant is not unenforceable as a prior restraint on speech, where record showed the mediated agreement was based on a knowing, voluntarily and intelligent waiver of constitutionally protected rights; 2. A trial court is without authority to sanction a party for violation of a mediated settlement, because sanctioning power only extends to violation of mediation rules themselves, such as attendance; and 3. [O]nce a defendant voluntarily dismisses claims with prejudice as part of a mediated settlement, the court is without power to enforce the settlement absent defendant's motion to withdraw the voluntary dismissal or the bringing of a new court action based on breach of contract).
Estate of Barber video
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Fair v. Bakhtiari, 19 Cal.Rptr.3d 591 (Cal. Ct. App. 2004) (reversing trial court refusal to enforce mediated settlement and compel arbitration pursuant to its terms because inclusion of the arbitration provision in the settlement was "consistent solely with an intention on the part of the parties for the settlement terms document to be enforceable or binding," thereby making the settlement admissible based on a statutory exception to inadmissibility where an "agreement provides that it is enforceable or binding or words to that effect")(emphasis added), review granted, 104 P.3d 98, 23 Cal.Rptr.3d 295 (Cal. Jan. 12, 2005).
Fair video
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Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. Dist. Ct. App. April 11, 2006) (reversing order enforcing mediated workers' compensation settlement, where claimant's attorney did not have clear and unequivocal authority to settle on claimant's behalf).
Fivecoat video
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Guthrie v. Guthrie, 594 S.E.2d 356 (Ga. 2004) (affirming that trial court acted erroneously in granting summary judgment denying enforcement of mediated divorce settlement agreement under rules utilized to resolve whether to incorporate a settlement agreement into a final divorce judgment, where husband died during pendency of divorce proceedings but the parties' agreement contained provisions that were to take effect immediately or shortly after the date the agreement was executed indicating it was not contingent upon issuance of a divorce judgment and in such cases enforcement is evaluated under ordinary rules of contract construction). Note: The decision implicitly affirmed the additional conclusion of the Court of Appeals that summary judgment in favor of enforcement also was inappropriate where allegations of capacity to contract -- specifically that a party "had suffered anxiety attacks, had consumed at least four doses of Valium, and was bereft of energy and mental concentration" -- raised jury questions about whether there was a meeting of the minds sufficient to create a contract). See Guthrie v. Guthrie, 577 S.E.2d 832 (Ga. App. 2003).
Guthrie video
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Heaven & Earth, Inc. v. Wyman Properties Limited Partnership, No. Civ. 03-3327, 2004 WL 2931347 (D. Minn., November 4, 2004) (enforcing handwritten mediated settlement of lease extension by night club against challenge that parties' failure to reach full agreement on limitations and notice requirements for sound checks was a missing essential element that precluded enforcement).
Heaven video
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In re O.R. v. J.R., No. E034376, 2004 WL 585583 (Cal. App. Mar. 25, 2004) (affirming a visitation order based on the parties' mediated agreement despite fact that father called the mediator and had the agreement reached in mediation changed without the mother's knowledge or consent, determining that the mother's claims of extrinsic fraud and mistake lacked merit because she would have discovered the change if she had chosen to carefully review the agreement before it was signed and subsequently approved by the court).
In re O.R. video
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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).
In re Rains video
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In re Terrence, 833 N.E.2d 206 (Ohio Ct. App. 2005) (reversing termination of mother's parental rights based on mediated settlement conducted by telephone during mother's incarceration, where record failed to show clear consent and waiver of rights).
Quote from the Court: "Mediating with the government, which has far more resources than an individual, must be carefully scrutinized, as the parties come with unequal bargaining positions. Here, "[t]he mother had nothing real to gain and everything to lose. [The government agency] had everything to gain and nothing to lose. Mediation is more beneficial to the state, as consent is more efficient than trial."
In re Terrence video
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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."
Kakani Video
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Ledbetter v. Ledbetter, 163 S.W.3d 681 (Tenn. 2005) (refusing to enforce divorce settlement orally dictated by mediator and affirmed by parties and their counsel at mediation, which was later repudiated by one of the parties and never reduced to writing and presented to the court for approval).
Ledbetter video
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Lee v. Lee, 158 S.W.3d 612 (Tex. Ct. App. 2005) (concluding that divorce settlement negotiated directly by the parties could not be considered an irrevocable mediated settlement because the parties reached agreement without the assistance of a mediator).
Lee video
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McDermott v. City of North Olmsted, Ohio, 178 Fed.Appx. 515 (6th Cir. April 27, 2006) (affirming enforcement of mediated settlement of ADEA claims, concluding that plaintiff employee had reasonable period of time to consider the settlement even though he was forced to sign at the mediation session itself, by virtue of the parties' prior six-weeks of negotiations, involving three revised versions of the written agreement (the last of which had been first presented to plaintiff for consideration 12 days before mediation).
McDermott video
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Ryles v. Palace Hotel, No. C 04-5326 SBA, 2006 WL 3093678 (N.D. Cal. Oct. 27, 2006) (denying employer's motion to enforce a mediated employment discrimination settlement, where totality of the evidence established a coercive atmosphere around the execution of the settlement, including specifically that plaintiff was advised by her own attorney that "she would have to pay $10,000 and would lose her home if she did not settle the case" and that she would not get a fair trial because the court is unsympathetic to employment plaintiffs).
Quote from the Court: "Where Plaintiff was misled about whether she would be given a fair hearing, and threatened with the loss of her home and other serious financial consequences, this Court cannot conclude that the atmosphere was noncoercive. Defendant's frustration is understand- able, given that a good deal of effort went into reaching this settlement. However, the Court is obligated to examine the circumstances surrounding execution of this [Title VII] agreement more closely than it would an ordinary contract."
Ryles v. Palace Hotel video
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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.
Vitakis video
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Zimmerman v. Zimmerman, No. 04-04-00347-CV, 2005 WL 1812613 (Tex. App. Aug. 3, 2005) (affirming enforcement of mediated divorce settlement against allegation of mediator coercion, where the only evidence presented in support of the claim was the party's -perceptions of the mediator and how the mediator made him feel - evidence the trial court stated on the record it did not find credible).
Zimmerman video
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CONFIDENTIALITY
Angelella v. Pittston Township, No. 3:06-CV-00120, 2007 WL 2688724 (M.D. a. Sept. 11, 2007) (rejecting plaintiff's allegation of First Amendment retaliation based on defendants' disclosing the date of a confidential mediation and discussing the underlying case on a TV news show, where the use of mediation and its date is a matter of public record, and the interest of the public in receiving information from defendants as public officials outweighs the interest of the plaintiff to be free from unwanted publicity).
Angelella Video
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Murray v. Talmage, 151 P.3d 49 (Mont. 2006) (granting new trial to plaintiff noteholder in airplane security agreement dispute, based on improper admission of defendant debtor's testimony about what a mediator told the debtor regarding allegedly false representations made by the noteholder in a caucus, because the statements were inadmissible hearsay and highly prejudicial given that no witness other than the mediator could offer first-hand evidence about what was said).
Murray Video
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Rojas v. Los Angeles County Superior Ct., 93 P.3d 260 (Cal. 2004) (affirming denial of tenants' motions to compel production of material produced by owners and builders in connection with mediation held in prior litigation, concluding that state mediation privilege not only protects substance of the negotiations and communications in furtherance of mediation, but also "raw evidence" exchanged at the mediation, when the evidence was compiled specifically for use in the mediation process).
Quote from the Court: "[I]n making its recommendation regarding mediation confidentiality, the [California Law Revision] Commission specifically considered the discoverability of both expert reports and photographs and drafted its proposed confidentiality provisions to preclude discovery of such reports and photographs if they were 'prepared for the purpose of, in the course of, or pursuant to, a mediation.' [citation omitted]. These materials also show that the Commission chose language expressly designed to give a mediation participant who takes a photograph for purpose of the mediation 'control over whether it is used' in subsequent litigation, even where 'another photo' cannot be taken because, for example, 'a building has been razed or an injury has healed.'"
Rojas video
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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).
State video
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Uniform Mediation Act opening statement (Prepared for the 2001 Minnesota State Bar Association Annual ADR Institute, this "tongue-in-cheek" sample of a mediator's opening statement shows the difficulty of conveying the Act's complexity to mediation consumers. NOTE: The video begins with the fictional assertion that Minnesota has adopted the Uniform Mediation Act; this was for video purposes only; the Act has not yet been adopted in Minnesota.
Uniform Mediation Act video
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SANCTIONS
Allapattah Serv., Inc. v. Exxon Corp., 454 F.Supp.2d 1185 (S.D. Fla. 2006) (justifying an incentive award to class representatives in an action against Exxon, in part because Exxon counsel during mediation "[d]irect[ed] his words directly to the named Plaintiffs and their spouses, [told] them that when Exxon won the case, it was going to obtain cost judgments against them personally and financially ruin each and every one of them").
Allapattah Serv. Video
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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).
Brooks video
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In re Fletcher, 424 F.3d 783 (8th Cir. 2005) (affirming suspension of attorney from practice for three years for a pattern of demeaning and abusive behavior while participating in depositions and mediation, including the use of profanity in one mediation and the threat in another to publicize confidential information that his client had illicitly photocopied).
Fletcher video
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Irwin Seating Co. v. Int'l Bus. Mach. Corp., No. 1:04CV568, 2006 WL 3446584 (W.D. Mich. Nov. 29, 2006) (striking expert witnesses and awarding costs and attorneys' fees where the party violated mediation confidentiality by showing trial experts confidential mediation statements and exhibits obtained from the adverse party during mediation), order aff'd by No. 1:04-CV-568, 2007 WL 518866 (W.D. Mich. Feb. 15, 2007).
Irwin Video
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Lawson v. Brown's Home Day Care Center, Inc., No. 2003-112, 2004 WL 1586888 (Vt. July 8, 2004) (affirming award of $2,000 in sanctions against attorney for repeatedly and in bad faith filing confidential mediation documents in support of attempt to disqualify opposing counsel for alleged obstruction of justice, subornation of perjury, and presentation of false evidence).
Lawson video
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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).
Smith Wholesale video
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ETHICS/MALPRACTICE
Hall v. Cohen, No. 270949, 2007 WL 258311 (Mich. App. Jan. 30, 2007) (reversing trial court's dismissal of attorney malpractice claim, finding that plaintiff's testimony after the mediated settlement that she was satisfied with the settlement, satisfied with defendant's legal representation, and was acting free of threat or coercion did not constitute collateral estoppel precluding her malpractice claim).
Hall Video
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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.
Home Depot video
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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.
In re Non-Member of State Bar of AZ Video
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In re Philpot, 820 N.E.2d 141 (Ind. 2005) (issuing public reprimand to attorney who maintained a website suggesting that clients should lie and create "throw away" demands to achieve successful results in mediation). NOTE: One judge dissented "believing that for advising the public to lie at mediation meetings, the respondent should be suspended from the practice of law without automatic reinstatement.") reconsideration denied Jan. 17, 2006.
In re Philpot video
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Morgan Phillips, Inc. v. JAMS/Endispute, L.L.C., 44 Cal.Rptr.3d 782 (Cal. Ct. App. 2 Dist. June 20, 2006) (concluding that arbitrator's withdrawal from arbitration proceeding for no stated reason and continued service as a mediator was not sufficiently associated with adjudicative phase of arbitration to justify arbitral immunity in a suit brought against the neutral for alleged breach of contract and other claims).
Morgan video
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Shake v. The Ethics Committee of the Kentucky Judiciary, 122 S.W.3d 577 (Ky. 2003) (vacating opinion of the Ethics Committee of the Kentucky Judiciary and finding no appearance of impropriety when a judicial officer serves without compensation on the board of directors of a non-profit local mediation organization):
Quote from the Court's Majority Opinion: We find no valid basis for the Ethics Committee's fear that litigants may feel compelled to choose mediation if the judge sits on a mediation organization's board. Under Kentucky's Model Mediation Rules, [footnote omitted] which were developed under the direction of this Court, a judge may refer a case to mediation regardless of whether the parties desire mediation. [footnote omitted] Although the decision to choose mediation is frequently made by the litigants, the fact that the judge sits on a mediation organization's board is an insignificant factor in the making of that decision by litigants when compared to the litigants' knowledge that the judge has the absolute discretion to order mediation even if they choose otherwise.
NOTE from the Dissent: 3 of 7 judges voted to adopt the Ethics Committee opinion that precluded judicial service on the non-profit mediation board.
Shake video
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Sealed Party v. Sealed Party, No. CIV. A. H-04-2229, 2006 WL 1207732 (S.D. Tex. May 4, 2006) (concluding that attorney breached fiduciary duty to his former client not to disclose the non-public fact that the parties had reached a mediated settlement when he issued a press release about the settlement, but dismissing the client's fiduciary duty claim because of lack of damages).
Sealed Party video
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Simpson v. JAMS/Endispute, L.L.C., No. A110634, 2006 WL 2076028 (Cal.App. 1 Dist. July 26, 2006) (affirming applicability of quasi-judicial immunity to dismiss complaint against mediation provider for ineffective service, including alleged failure to ensure participation of opposing party and trying to "force" a settlement).
Simpson Video
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Statewide Grievance Committee v. Kennelly, No. CV040833515S, 2005 WL 758055 (Conn. Super., Feb. 25, 2005) (reprimanding inexperienced attorney for misrepresenting in joint session of mediation the amount of available insurance, where he disclosed to mediator in caucus that "he had more money" but did not volunteer the actual balance remaining on the liability policy).
Statewide Grievance Video
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Wimsatt v. Superior Court, 61 Cal.Rptr.3d 200 (Ct. App. 2007) (reluctantly reversing a judicially-created perjury exception to confidentiality, and precluding the client in this legal malpractice action from discovering mediation briefs and emails that would support the allegation that his lawyer lowered his settlement demand without authority; but refusing to issue a protective order for the contents of the conversation in which the lawyer purportedly lowered the demand, reasoning that plaintiff failed to meet his burden to establish that the conversations actually occurred in mediation).
Wimsatt Video
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MISCELLANEOUS
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).
Emerson video
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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).
In re Marriage of Craze video
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Kline v. Berg Drywall, Inc., 685 N.W.2d 12 (Minn. 2004) (where a three stage ADR process contained in a collective bargaining agreement excludes legal counsel from the stage one facilitation and limits legal counsel from communicating directly with the mediator in stage two, the resulting diminution of benefits impermissibly compromises employees' entitlement to workers' compensation and warrants grant of a new arbitration hearing to claimant denied benefits for work-related injury).
Quote from the Court's Majority Opinion: "An injured worker is immediately disadvantaged, particularly when a trained insurance claims adjuster or an employer with legal training is allowed to participate in a facilitation that can lead to the termination of benefits."
Quote from the Court's Dissenting Opinion: "Parties may waive their right to counsel in virtually all legal settings, including those having more serious ramifications than a workers' compensation claim. By virtue of the adoption of the rules of the Fund in the collective bargaining agreement, and the provision in the rules that counsel cannot be present at the facilitation, Kline has waived the right to have counsel present at that stage".[b]ecause Kline's waiver is part of a private agreement that created the ADR systems, there is no 'state action' and due process issues cannot arise."
Kline video
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U.S. Steel Mining Co., L.L.C. v. Wilson Downhole Serv., No. 02:00CV1758, 2006 WL 2869535 (W.D. Pa. Oct. 5, 2006) (enforcing arbitral award against challenge that the arbitrator improperly relied on fraudulent ex parte information conveyed during mediation in choosing among the parties' last offers, noting that the parties' amended arbitration agreement stated that the arbitrator "may rely on information which he deems relevant, whether obtained in ex parte communication or otherwise").
U.S. Steel Video
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