All posts by Michael Moffitt

Mediator Ethics … and What Actually Guides Us

Do practicing mediators actually turn to conventional articulations of mediation ethical standards for guidance?  So much ink has been spilled describing mediator standards, and so many hours have been devoted to parsing their every word, that some might hope the answer is “Yes, of course!”  But I doubt busy mediators ever consult them.  I personally … Continue reading Mediator Ethics … and What Actually Guides Us

Ongoing Relationships and the Perils of Gratitude

 Last week, I wondered aloud (or whatever the blog equivalent of “aloud” may be) why I had so few experiences in which mediation parties said “thank you” to each other upon arriving at a settlement.  Geoff Sharp indicated that his experience in New Zealand was different—that he routinely sees parties thanking each other early and often … Continue reading Ongoing Relationships and the Perils of Gratitude

Arbitrators, Evident Partiality, and Contrived Ignorance

“Evident partiality” is one of the very few grounds upon which a court may vacate an arbitral award under Section 10 of the Federal Arbitration Act. The typical target of Section 10(a)(2) is an arbitrator who knows of a conflict of interest, fails to disclose it, and therefore fails to secure a waiver from the … Continue reading Arbitrators, Evident Partiality, and Contrived Ignorance

Wrongful Death and Arbitration

A recent case from the Ohio Supreme Court illustrates a division in the way different jurisdictions treat workers’ compensation claims where the employer and employee signed an arbitration agreement. In Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134 (2007) http://www.sconet.state.oh.us/rod/newpdf/default.asp, the employee agreed to arbitrate all claims he might have against his employer. … Continue reading Wrongful Death and Arbitration

In Praise of (Written) Representations in Mediated Settlements

Too often, mediated settlement agreements produce post-mediation litigation in which one party alleges that the mediated agreement was the product of fraud. By encouraging parties to employ standard contracting devices, mediators can help parties to avoid some of most challenging aspects of these fights—and hopefully avoid the fights altogether. Last week, Professor Ellen Deason posted … Continue reading In Praise of (Written) Representations in Mediated Settlements

Mediation Fees as Recoverable Costs?

Under the “American Rule,” each party bears the burden of whatever expenses it incurs during the course of litigation, regardless of the outcome of the case. Federal Rule of Civil Procedure 54 presents one exception to this broad assertion. Under its terms (and equivalent state provisions), “costs other than attorneys’ fees shall be allowed as … Continue reading Mediation Fees as Recoverable Costs?

Contingent fees for non-binding arbitrators?

Contingent fees for non-binding arbitrators? or What’s good for the goose… Many court systems have adopted a form of mandatory arbitration for certain categories of cases. Though the details vary by jurisdiction, the basic structure is this: Parties file a lawsuit, and are directed to non-binding arbitration in advance of (or in lieu of) trial. … Continue reading Contingent fees for non-binding arbitrators?