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Fortune 1000 study finds use of mediation rising as use of arbitration declines.

In a journal report, Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations, Pepperdine University Law Professor Thomas T. Stipanowich and Asst. Professor J. Ryan Lamare from the University of Pennsylvania, reported:

While mediation appears to be even more widely used than in 1997 and is today virtually ubiquitous among major companies, the survey indicates a dramatic fall-off in the use of arbitration in most types of dispute: commercial, employment, environmental, IP, real estate and construction, among other categories, with notable exceptions such as consumer disputes and products liability cases.

Fortune 1000 companies were surveyed in 1997 and again in 2011regarding their usage and views concerning the use of alternative dispute resolution (ADR) processes. The survey showed the increased and consistent use of mediation. The authors noted:

[S]ignificantly more companies reported using mediation for nearly all kinds of disputes; however, significantly fewer companies reported arbitrating in key categories. More companies appeared to be resorting to mediation in the following arenas of conflict: commercial/contract, individual employment, consumer, corporate finance, environmental, intellectual property, personal injury, products liability and real estate. There was a sole exception to the pattern of increasing mediation use: the number of companies mediating construction disputes was virtually unchanged. However, given anecdotal evidence that mediation continues to be widely used in construction disputes, the data probably reflect the severe and sustained impact of recent economic downturns on all forms of construction in recent years. In other words, fewer construction projects means fewer construction disputes, and fewer opportunities to use mediation.

The Fortune 1000 companies reported using mediation at increased rates (83.5% for commercial/contract disputes, 85.5% for employment matters, 70.5% for personal injury cases, 59.9% for product liability matters, 49.3% for intellectual property disputes and 39.8% for construction disputes).

Usage of arbitration, however dropped for most categories of disputes except for consumer (from 17.4% in 1997 to 20.6% in 2011), corporate finance disputes (from 12.3% in 1997 to 14.5% in 2011) and product liability (from 23.3% in 1997 to 41.5% in 2011). The magnitude of decreased use of arbitration as an ADR process was noted in the areas of commercial/contract disputes (from 85% in 1997 to 62.3% in 2011), employment (from 62.2% in 1997 to 37.8% in 2011) and construction (from 40.1% in 1997 to 21.6% in 2011).

The authors observe that:

Taken as a whole, the statistics meaningfully signal very different trends in mediation and arbitration. Mediation usage is expanding and arbitration usage contracting in most conflict settings. Key exceptions to the downward trend for arbitration are consumer disputes and products liability cases, which probably reflect expanded use of binding arbitration agreements in standardized contracts for consumer goods and services

The full report is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2221471

Forum notes:               

PUBLIC POLICY ISSUES AND CONFLICTS
COLLABORATIVE PROBLEM SOLVING AND CIVIL DISCOURSE IN COMPLEX PUBLIC POLICY ISSUES AND CONFLICTS

At a May 7, 2014 forum sponsored by the William S. Richardson School of Law, the Alternative Dispute Resolution Section of the Hawaii State Bar Association and the Hawaii Chapter of the Association for Conflict Resolution, John Sturrock, a mediator from Scotland commented upon the critically important need for countries and communities to have a culture and protocol for respectful dialogue. Speaking in context about the impending referendum in Scotland to effect independence from the United Kingdom, he stated: “If you can have respectful dialogue before the decision, we can do better at designing the future we want to have.” His organization, Core Solutions Group, promotes the following “Protocol for Respectful Dialogue”:

  • Show respect and courtesy towards all those who are engaged in these discussions, whatever views they hold;
  • Acknowledge that there are many differing, deeply held and valid points of view;
  • Use language carefully and avoid personal or other remarks which might cause unnecessary offence;
  • Listen carefully to all points of view and seek fully to understand what concerns and motivates those with differing views from our own;
  • Ask questions for clarification and when we may not understand what others are saying or proposing;
  • Express our own views clearly and honestly with transparency about our motives and our interests;
  • Respond to questions asked of us with clarity and openness and, whenever we can, with credible information.   

Peter Adler, principal of Accord, 3.0, a strategic public policy consultant group, shared the following quote from David Bohm: “Dialogue is fundamentally a practice of examining thought together, leading to new ways of thinking.” He described the work as ‘guerrilla peacemaking” and commented upon the challenge for those who assist and facilitate community discussions, dialogues and joint fact-finding processes to craft safe harbors for communities to talk, think and act and for thought leaders and policy makers to engage in thoughtful, sensitive and difficult dialogues about difficult and protracted issues. Such work often needs to be done in the shadows and be designed to make others look really good.

The elements of successful dialogue include:

  • Preparing well
  • Building relationships
  • Gaining understandings
  • Generating options
  • Assessing between possibilities
  • Agreeing to outcomes
  • Creating action plans
  • Evaluating process outcomes

Upcoming Forums:

I. June 28, 2014. Lou Chang will present a forum, sponsored by the Association for Conflict Resolution, Hawaii and the Hawaii State Bar Association ADR Section on "The Road to Forgiveness and the Mediator’s Role on the Journey". The forum will be held Saturday, June 28, 2014 at 1132 Bishop Street Room 305 – Honolulu, Hawaii 96813 at 10:00 – 11:30am. 

Learning Objectives

  • Understanding the different motivations leading to forgiveness
  • Determining the ethical limits to motivating forgiveness in mediation of conflict
  • Examining ways to motivate act of forgiveness where determined appropriate

For more information and to register online, please click here 

II. August 19, 2014. Lou Chang will present a forum on the tools and techniques for impasse breaking. The program is sponsored by the Hawaii State Bar Association ADR Section and the Association for Conflict Resolution, Hawaii.  The title of the program is "Breaking Bad: Getting Past Impasses in Negotiations" and will be held at 12:00 noon - 1:30 p.m., at the HSBA Conference Room, 1100 Alakea St., Suite 1000, Honolulu.

Learning Objectives

  • Learning the six categories of impasse breaking strategies
  • Diagnosing the dynamics of negotiations  and identifying the causes of apparent impasses
  • Selecting and applying different impasse avoidance strategies
  • Recognizing the indicia of false  impasses

For more information and to register, contact Lou Chang at louchang@hula.net or (808) 384-2468.

MAY 2014

CASES & RESOLUTIONS:

Federal Court Concludes that Insurer’s Due Process Rights Trump California’s Mediation Confidentiality Statute

A federal trial court concluded that California’s strict mediation confidentiality provisions were not applicable in a bad faith claim by homeowners against their insurer, as the insurer needed to be able to show that its failure to settle the case was the result of the homeowners’ excessive demands in mediation.  The court relied on the seminal California Supreme Court case, Cassel v. Superior Court, in which due process is recognized as a limit on the mediation confidentiality statute, even though the Supreme Court was not concerned about shielding legal malpractice when only civil damages were at issue.  Here, however, the federal court concluded that the insurer’s due process right to defend itself outweighed confidentiality, where the homeowners initially demanded $7 million in mediation for a house the court found to be worth about $1 million.  While the parties also had signed a confidentiality agreement covering the mediation, it was never presented to the court and thus could not exclude testimony about the mediation.  The decision is being appealed to the Ninth Circuit.

Milhouse v. Travelers Commercial Ins. Co., No. SACV 10-01730-CJC (U.S.D.C. C.D. Cal., November 5, 2013)

Term Sheet from Mediation Admissible If Settlement Reached, Regardless of Confidentiality Agreement

After the parties signed a term sheet in mediation to resolve a class action, one side tried to prevent the document from being introduced in court based on a mediation confidentiality agreement, but a federal trial court concluded that if a full settlement had been reached the term sheet would be admissible regardless of the confidentiality agreement, and the court could review the document to make that determination.  The court noted that neither the U.S. Court of Appeals for the Seventh Circuit nor the U.S. District Court for the Northern District of Illinois has recognized a federal mediation privilege.

Craftwood Lumber Co. v Interline Brands, Inc., No. 11 C 4462 (U.S.D.C. N.D. Ill., April 9, 2014)

Settlements and Negotiations Protected from Discovery in Mediation, But Not Otherwise

A federal trial court readily concluded that settlement agreements and settlement negotiations were protected from discovery by a mediation privilege if they took place in mediation, but were not protected if they occurred outside mediation.  The court noted that most courts recognize a federal common law mediation privilege, and that the U.S. Court of Appeals for the Federal Circuit had observed that all states have apparently enacted a mediation privilege, while there is no state consensus regarding a settlement negotiation privilege.  In addition to the mediation privilege, the trial court noted that the local rules of the court and the parties’ agreement to mediate also provided additional confidentiality protection among litigants. 

U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-03724 CW (U.S.D.C. N.D. Cal., March 31, 2014)

Appellate Court Reverses Decision that Standard Construction Form Requiring Mediation Is Contract of Adhesion

A California court of appeals overturned the trial court’s decision that a standardized home purchase contract which required homeowners to give notice and an opportunity to correct any construction defects, and then to mediate prior to filing litigation against the builder, was an unconscionable contract of adhesion and violated California’s 2002 Right to Repair Act.  The appellate court found that there was nothing unfairly one-sided about the mediation terms, as required for a contract to be unconscionable. 

McCaffrey Group, Inc. v. Cital, No. F066080 (Cal. C.A. 5th Dist., March 24, 2014)

Liquidated Damages in Settlement Agreement Are Unenforceable Penalty in California, If Not Related to Actual Loss Suffered

A liquidated damages clause requiring payment of the entire $85,000 in dispute, which was settled in an agreement requiring payment of only $38,000, was held by a California appellate court to be an unenforceable penalty as there was no reasonable relationship to the damages actually suffered by the failure to make a timely payment of the settlement amount, notwithstanding an express waiver of any challenges to the liquidated damages in the settlement. 

Purcell v. Schweitzer, No. D063435 (Cal. C.A. 4th Dist., February 24, 2014)

Public Bankruptcy Mediation Update

  • The Detroit bankruptcy judge has ordered three mediators – all federal judges – to work with Detroit and Wayne, Oakland and Macomb Counties to address the possibility of a regional water authority.  The bankruptcy judge also ordered Detroit’s bond insurers to mediate with the city.  Detroit Free Press (April 17, 2014); The Bond Buyer (March 21, 2014)
  • Mediation has resulted in a tentative settlement between bankrupt San Bernardino and its biggest creditor, Calpers, which should help in reaching mediated settlements with other creditors.  However, the firefighters union is frustrated after seven mediation sessions, but were rebuffed by the bankruptcy judge from taking steps in litigation that might interfere with mediation.  Bloomberg News (March 14, 2014)

Other Notable & High Profile Proceedings

  • A court of appeals reversed the trial court and concluded that a settlement agreement did not affect claims against a third party who was not involved in the mediation and not mentioned in the settlement.  The appellate court explained that a third-party beneficiary to a settlement agreement or other contract need not be mentioned, but it must be clear that the contract intended to benefit the third party.  Jarman v. Jones, No. A13A1961 (Ga. C.A., March 18, 2014)
  • Relying on basic contract law, a federal court refused to enforce a settlement agreement reached in mediation due to a mutual mistake of material fact when one party incorrectly asserted in mediation that it had proof that the other party did not hold title to the asset in issue, resulting in a de minimis settlement and further efforts which later proved ownership.  GE Capital Small Business Finance Corp. v. Operators Investment Group, No. 3:13CV101-NBB (U.S.D.C. N.D. Miss., March 27, 2014)
  • A federal court upheld a mediated settlement agreement between the parent of students with disabilities and their school district after finding no merit in any of the parent’s ten arguments against enforceability, which ranged from lack of consideration and duress to mutual mistake, rescission and illegality.  The court noted that the federal special education statute authorizes and encourages mediation.  Bd. of Educ. of Plainfield Comm. Consol. School Dist. 202 v. Illinois State Bd. of Educ., No. 13 C 2043 (U.S.D.C. N.D. Ill., March 26, 2014)
  • Without any mention of mediation confidentiality, a federal court upheld an oral agreement reached in mediation that was to be immediately binding, even though a written agreement was to be prepared later.  The court readily dismissed plaintiff’s arguments that the mediator had unethically befriended him – noting that it is beneficial for mediators not to be antagonistic – and that the written agreement should not state that defendants hadn’t admitted to any wrongdoing. Peck v. Nevada Dept. of Corrections, No. 2:12-CV-00898-JCM-NJK (U.S.D.C. D. Nev., March 14, 2014)
  • The court required the parties to sign a general release of all claims based on a handwritten settlement agreement reached in mediation.  Even though certain non-material terms were left for future negotiation, the plain language of the memorandum expressed the parties’ intention to be bound rather than merely agreeing to agree in the future.  Trolman v. Trolman, Glaser & Lichtman, No. 11838, 11839, 11840, 651212/12 (N.Y. S.C. App. Div., February 27, 2014)
  • When the terms of a settlement reached in mediation were formally put on the record in court, the settlement agreement was binding even though there were no signatures or further documentation of the settlement.  Bank of Nova Scotia v. Roy, No. 2010-29 (U.S.D.C. D. V.I., February 26, 2014)
  • Mediation privilege would prevent disclosure of a document received in mediation under either Illinois or California law.  U.S. Surety Co. v. Stevens Family Ltd. Partnership, No. 11 C 7480 (U.S.D.C. N.D. Ill., March 7, 2014)
  • Mediation privilege prevents a party from being able to show the probability of prevailing on the claim. Livingston v. Ballantine, No. B250110 (Cal. App. 2d Dist., March 18, 2014)
  • The court dismissed the litigation due to failure of the parties to mediate as required by standard construction contract provisions.  Key Restoration Corp. v. Union Theological Seminary, No. 155981/13 (N.Y. S.C., February 20, 2014)
  • When a party living in Asia participated in a mediation but did not appear in person as ordered, the court declined to impose monetary penalties since his absence was not the cause of impasse and there was no cost for the mediator.  The court also refused to strike pleadings and enter default judgment, as such drastic sanctions would require a clear record of delay or willful contempt.  Kahama, LLC v. HJH, LLC, No. 8:11-cv-2029-T-30TBM (U.S.D.C. M.D. Fl., March 20, 2014)
  • Under a Hawaiian statute, a court may take a party’s refusal to mediate into account when awarding attorneys’ fees and costs, but is not required to do so.  Assoc. of Apartment Owners of Discovery Bay v. Mitchell, No. CAAP-11-0000151 (Haw. App., February 24, 2014)
  • Without any discussion of mediation confidentiality, the U.S. Court of Appeals for the Seventh Circuit rejected a sexual abuse victim’s assertion that he was fraudulently induced to settle in mediation years earlier based on misleading information, because he failed to show that the misleading information was a substantial factor in his decision to settle.  Archdiocese of Milwaukee v. Doe, No. 12-3689 (U.S.C.A. 7th Cir., February 25, 2014)
  • When the parties sought enforcement of an oral settlement agreement reached in mediation, a federal district court enforced the parties’ agreement to arbitrate if mediation did not resolve all claims.  Rebich v. State Farm Fire and Casualty Co., No. 13-1007 (U.S.D.C. W.D. Pa., January 29, 2014)
  • Approval of a class action settlement was denied by the court for various reasons, even though involvement of a mediator in settlement weighs against a finding of collusion.  Zepeda v. Paypal, Inc., No. C 10-2500 SBA, No. C 10-1668 SBA (U.S.D.C. N.D. Cal., February 24, 2014)

NEWS & INITIATIVES:

New Jersey Promoting Agricultural Mediation

To promote mediation of agriculture-related disputes, the State Agriculture Development Committee published the New Jersey Agricultural Mediation Program Handbook.  The Handbook explains how mediation works as an alternative to the Right to Farm Act’s formal dispute resolution process or to resolve USDA program disputes, and gives examples of successful mediations. 

NJ.com (March 28, 2014); NJ SACD Website; Handbook

Connecticut Proposes Mediation Program for Condominium Disputes

Legislation has been introduced in Connecticut to create a pilot mediation program for disputes among condominium owners or between owners and their condominium associations.  The mediation program is to be run by the courts, with the presiding judge selecting a special master to conduct the mediation without compensation.  

LegiScan (March 19, 2014)

Other Notable News & Programs

  • A mediation program to resolve complaints against the Denver police and sheriff’s departments is becoming a national model.  The Office of the Independent Monitor refers certain complaints to mediation, which is voluntary for both parties.  Over 350 successful mediations have been completed since the program began in 2006.  Denver Post (March 25, 2014)
  • A pilot mediation program is being developed for Raleigh, North Carolina, which would address conflicts between downtown residents and nightclub owners over noise issues.  The mediation program would replace the current system of quasi-judicial hearings and involve an independent mediator from the police department when direct contact doesn’t resolve an issue.  Raleigh Public Record (March 27, 2014)
  • Funding cuts ended a juvenile offender mediation program in Spokane County, Washington, about five years ago, but a former juvenile court mediator provided mediation between the owner of a taxidermy business and nearly a dozen teenagers who were facing felony charges for burglary and removing mounted animals, imitating a YouTube video.  The successful process resulted in restitution of nearly $10,000 and community service for each teen involved, demonstrating the need for an ongoing program.  The Spokesman Review (March 12, 2014)

International Mediation Developments

  • The National Supplementary Health Agency in Brazil has expanded the scope of disputes that it mediates between consumers and healthcare carriers to address legal and technical matters in addition to disputes relating to medical care itself.  Mondaq (April 16, 2014)
  • An international mediation service has been launched in Ireland by JAMS, the largest U.S. mediation service.  The Global Legal Post (April 10, 2014)
  • A new mediation service has been established to address workplace disputes that arise within the church in Wales, with specially trained mediators in all six dioceses.  NewsWales (April 26, 2014)
  • The tourism industry in France has established what it calls a mediation program for disputes between travelers and service providers, which handled over 1,000 cases in 2013, a large increase from its first year in 2012.  The chief mediator proposes solutions that the parties accept or reject and also issues rulings to resolve disputes.  The Local (March 21, 2014)
  • Pakistan’s Karachi Centre for Dispute Resolution continues to work to get traction for mediation, proposing legislation to permit courts to order mandatory mediation.  The Express Tribune (March 12, 2014)
  • Mediation has resolved a property dispute that began in 1966 and has been pending in court for 32 years in Nagpur, Maharashtra, India, where a day-long emphasis on mediation resolved 28 of the 39 cases mediated.  The Times of India (March 30, 2014)
  • Nepal has adopted a Mediation Act to cover disputes not referred to mediation by courts, including land, property, family and even criminal cases apart from serious felonies.  The Act establishes a Mediation Council of high ranking officials to formulate policy, which will be headed by a supreme court justice.  eKantipur.com (April 16, 2014)
  • The chief justice in the state of Selangor, Malaysia, is encouraging mediation at the court’s mediation center which settled 168 cases in the last year, while 234 went back to the court for trial; mediation is optional for litigants and conducted without charge by a judge in the role of mediator.  New Strait Times (February 28, 2014)
  • About one in five of the 70,000 franchises in Australia has been in a substantial franchise dispute, with two-thirds of the disputes resolved through direct negotiations and another ten percent through mediation.  Franchising (April 14, 2014)
  • The Taxation Office of Australia is increasingly using mediation to avoid litigation in the early stages of high risk tax disputes that involve large businesses or rich individuals.  The Australian (March 4, 2014) (Subscription Required)
  • In Australia, the Catholic Church’s Truth, Justice and Healing Council is encouraging families with sex abuse cases against the church to mediate rather than pursuing protracted litigation.  ABC.Net.Au (March 17, 2014)
  • The Financial Dispute Resolution Centre in Hong Kong has received over 3,200 inquiries and mediated about 50 cases since being established in June 2012, with a settlement rate of about 80 percent.  About half of the inquiries relate to investment-related products.  Industry participants say the existence of the Centre, which costs about HK$55 million (US$7 million) a year to operate, makes banks and brokers take client complaints more seriously.  South China Morning Post (March 26, 2014)

Update on Home Foreclosure Mediation

  • A National Foreclosure Mediation Program was launched in February to support the 26 states throughout the U.S. that have foreclosure mediation requirements.  Hope LoanPort, a 501(c)(3) organization, launched the processing solution, which was supported financially by Wells Fargo.  Twenty mortgage servicing partners have implemented the program and over 1,400 counseling agencies have been registered.  GeeksWorld.com (April 8, 2014)
  • In April, the governor of Maine signed legislation to strengthen the role of foreclosure mediation by incorporating National Mortgage Settlement standards and strengthening standards and training for foreclosure mediators.  A report by the attorney general of Maine also recommended expanding the foreclosure mediation program by the judiciary.  RealEstateRama (April 14, 2014)
  • The Supreme Court of Maine upheld dismissal with prejudice of a complaint seeking foreclosure after the lender failed to appear at three mediation sessions, noting that lesser sanctions and warnings had not been effective to alter the lender’s behavior.  Bayview Loan Servicing, LLC, v. Bartlett, No. Yor-13-298 (Me., March 4, 2014)
  • A court of appeals in Ohio found that the trial court lacked authority to dismiss an action after unsuccessfully attempting to assist the parties in reaching a loan modification agreement over the course of a year, because the trial court had previously entered a judgment and decree in foreclosure and could not sua sponte vacate its own final order.  Bank of America v. Bruggeman, No. 25763 (Ohio C.A. 2d Dist., March 28, 2014)
  • Foreclosure mediation is among the items expected to be funded in New York with $440 million from the state’s settlement with JPMorgan relating to mortgage-backed securities.  The Republic (March 31, 2014)
  • The Alabama Center for Dispute Resolution received a $500,000 grant from the state attorney general in 2013 as part of the national mortgage settlement with the nation’s five largest mortgage servicers in 2012.  The Center conducted a mortgage foreclosure training for 40 mediators in April to assist in resolving foreclosures throughout Alabama; mediators are located in 23 of the 67 counties in the state.  The cost of foreclosure mediation in Alabama will be covered by the grant through April 2015.  Selma Times-Journal (April 28, 2014)
  • The City of Lynn, Massachusetts signed a contract in April with a dispute resolution firm to handle mortgage foreclosure mediations required by a city ordinance promulgated last May.  Banks, who are responsible for a $650 mediation fee, believe the resolution process should be handled by state regulators and are evaluating their legal options.  ItemLive.com (April 25, 2014); The Daily Item (March 7, 2014)
  • The City of Worcester, Massachusetts approved $75,000 in funding for the new city foreclosure mediation ordinance, with opponents urging delay until legal challenges to similar ordinances in Springfield are resolved.  Lenders will be charged a mediation registration fee to be determined once more accurate information is available about the costs of the program.  The Commons (March 26, 2014); Telegram.com (March 24, 2014)
  • Some 360 cases remain on the foreclosure mediation docket of a federal judge in Rhode Island which are expected to be completed by the end of the summer, even though the appellate court found fault with the judge’s stay order last June.  The judge issued a new stay order in December to streamline the mediation process by limiting it to owner-occupied residential properties and setting a 180-day resolution deadline.  Providence Journal (April 18, 2014)
  • Last summer’s change in the foreclosure mediation law in Oregon created a backlog of foreclosures, which is likely to cause an increase in the number of foreclosures in Oregon this year over last year.  Nationwide, foreclosures are at a seven-year low, dropping 27 percent compared to a year ago.  The Register-Guard (March 18, 2014)
[photo]

To Contact:
LouChang@hula.net

LouChang.com
808-384-2468

"Tact is the art of making a point without inflicting a wound."
- Georgia Crawford

"Sometimes we stay in Hell a long time because we have learned the names of the streets."
Michael Levine

Mediation Quote:

"Rather than proclaim abstract universal principles, or assert the priority of liberty over equality, or impose one approach or set of ideas on both parties equally, as the law does, mediation seeks to resolve the practical issues that encourage each side to believe that what is happening is unjust, and allows the parties to decide for themselves what is fair or just, using procedures that invite everyone who is touched by the problem to come to the table and collaboratively negotiate how it should be solved, and in this way, preserves both liberty and equality as interconnected aspects of justice." 

Kenneth Cloke, The Dance of Opposites: Explorations in Mediation, Dialogue and Conflict Resolution Systems Design (Goodmedia Press 2013) at 379

Worth Noting:

Guidance on Settling Employment Disputes with Clean Records
Resolution of federal employment disputes in mediation (and direct negotiation) often includes an agreement to give the employee a clean record.  The U.S. Merit Systems Protection Board has issued a lengthy report, Clean Record Settlement Agreements and the Law, discussing the range of issues that can arise and focusing on how to make clear commitments in settlement agreements and successfully carry out those commitments.
U.S. Merit Systems Protection Board (December 5, 2013); Report

Mediation in Sports

  • Comcast, Astros and Rockets have agreed to allow a federal judge to mediate between them over the Comcast SportsNet Houston bankruptcy case, while continuing to preside over the bankruptcy appeal.  Ultimate Astros (March 29, 2014)
  • The University of Maryland and the Atlantic Coast Conference have agreed on a mediator in order to comply with the court’s requirement of mediation of the dispute over Maryland’s move from the ACC to the Big Ten.  Washington Post (April 28, 2014)
  • Mediation sessions between the NCAA and former UCLA player Ed O’Bannon have made no progress, making it more likely the four-year-old class action will go to trial in June, although further mediation is possible.  Yahoo! News (March 29, 2014)
  • Two lawsuits challenging the constitutionality of Cleveland’s unique approach to taxing visiting professional athletes have been sent to mediation by the Ohio Supreme Court.  Cleveland.com (March 11, 2014)

Other Cases & Resolutions:

  • Two intense days of mediation resulted in a far-reaching settlement between preservationists concerned about a prehistoric Tequesta Indian village and a long-planned hotel and entertainment complex, in which a redesigned complex will use glass enclosures to preserve and display the archeological features.  The plan received overwhelming support from all parties; the agreement provides that any future disagreements will also be mediated.  Miami-Herald (March 20, 2014)
  • Technology giants Google, Apple, Intel, Adobe and others are in mediation with workers seeking $9 billion for claims that the companies conspired not to recruit employees from each other, driving down salaries.  Silicon Valley Business Journal (April 9, 2014) 
  • Google has agreed to mediation in a four-year-old lawsuit by consumers concerned about Gmail scanning messages to target advertising, even though Google just defeated an effort to certify a class in the case.  MediaPost (March 25, 2014)
  • Mediation has been agreed to by various defendants involved in the federal multidistrict litigation over fungus infected steroids that allegedly resulted in 64 deaths and nearly 700 other cases of fungal meningitis.  Law.com (March 18, 2014) (Subscription Required)
  • Following settlements in early mediation of Stryker hip recall cases in New Jersey proceedings, a panel of five mediators has been established to oversee ongoing mediation efforts in a second phase.  Following the Stryker recall of hip stems in 2012, over 800 claims have been consolidated in New Jersey state court, with over 600 additional cases in federal multidistrict litigation in Minnesota.  Virtual-Strategy Magazine (March 20, 2014)
  • The federal judge overseeing more than 700 Skechers toning shoe lawsuits has stayed the multidistrict litigation for seven months and appointed a special settlement master to act as mediator.  Digital Journal (April 09, 2014)
  • The Surface Transportation Board is requiring mediation in a dispute over trackage rights between BNSF Railway, Kansas City Southern Railway and Union Pacific.  RailwayAge (April 15, 2014)
  • TransCanada and two Vermont towns are mediating the value of two hydroelectric dams in a dispute over property tax increases.  Washington Times (March 20, 2014)
  • Class action litigation against 15 former executives and board members of LandAmerica is being delayed to permit mediation at the request of the parties.  Richmond BizSense (March 14, 2014)
  • Litigation by farmers against Monsanto for unauthorized release of biotech wheat, which resulted in temporary suspension of wheat exports to Japan and South Korea, is making some progress in mediation.  Capital Press (April 21, 2014); Capital Press (March 14, 2014)
  • Three days of mediation have not resolved 300 lawsuits filed against Mountain State University after loss of its nursing program accreditation, but another mediation session will be held this summer.  Register-Herald Reporter (April 3, 2014)
  • Trial has been postponed for a final attempt at mediation in a dispute over a township’s efforts to obtain an airport through eminent domain.  MyCentralJersey.com (March 18, 2014)
  • A developer and local residents have agreed to mediation over whether a tower must be limited to five stories or 18 stories depending on the applicable Miami zoning requirements.  Miami Herald (April 4, 2014)
  • A county and city have agreed to mediation over how to address road repairs and legal liability from a dam collapse.  Forsyth County News (March 9, 2014)
  • Director Quentin Tarantino’s copyright infringement suit against Gawker over a leaked screenplay has been sent to mediation by the judge.  Deadline (April 2, 2014)
  • In litigation against Best Buy for allegedly posting nude photos when recovering computer data, a federal judge sent the case to mediation and required the parties to select mediators.  Tuscaloosanews.com (March 13, 2014)
  • Mediation over details relating to construction of a new park-and-ride was sufficiently successful for the project to move forward once the agreement is reviewed by the town selectboard.  The Commons (March 26, 2014)
  • Mediation in Putnam County, NY, increased 20 percent last year and has increased 45 percent since 2011.  The Courier (March 27, 2014) (Subscription Required)
  • An ice cream franchisor in Australia is in mediation with franchisees over an A$1 million (US$950,000) claim for seizing stores and changing locks.  SmartCompany (March 31, 2014)
  • Although NZ$500,000 (US$430,000) has been spent on mediation, challenges remain to a large-scale irrigated dairy project in Mackenzie Country, New Zealand; further mediation is possible.  NZFarmer.Co.NZ (April 4, 2014)
  • A judge has required mediation in a lawsuit by an 18-year-old who moved out and sued her parents for child support and tuition for her private school.  ABC 7 Chicago (March 5, 2014)
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