Two weeks ago, the Nevada state court approved the MGM Mandalay Bay shooting settlement. No mention of mediator Jennifer Togliatti’s conflict of interest. I didn’t see it mentioned in any of the other press about the case either. Hmmm.
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You likely remember the MGM Mandalay Bay mass shooting from a couple of years ago. With approximately 4500 plaintiffs, the case was mediated by two former state court trial judges (one from Las Vegas and the other from Los Angeles) resulting in a structured settlement like many mass tort claims are.
It turns out that the Mandalay Bay’s head of security the night of the shooting was . . . (wait for it) . . . the father of one of the mediators. (!!!) Jennifer Togliatti, the former Nevada trial judge now mediator, brought this conflict to the attention of the plantiffs’ lawyers, who didn’t have a problem with it. Seeing no further issue here, she mediated the structured settlement over the next year.
As readers of this blog, I presume you see that this is an unwaivable conflict of interest and think of Section III(E) of the Joint Model Code for Mediators which states:
If a mediator’s conflict of interest may reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement to the parties to the contrary.
Not surprisingly, this conflict could “reasonably be viewed as undermining the integrity of the mediation.” Togliatti should have refused the engagement. Why she failed to do so is not clear. And the argument that the Joint Model Standards don’t apply in Nevada doesn’t cut it.
For more details, see my short piece in the most recent issue of Alternatives. Note that it is a subscription magazine, you may have to request it from your library. If you prefer more detailed press reports, go here and here. And finally, thanks to the folks at local NBC affiliate KPNX for asking me to comment on the case.