Last summer, in Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court may have signaled the tightening of pleading requirements. I’ve been wondering whether this also could signal the beginning of a trend that will affect the value—and perhaps even the viability—of ADR. It’s pretty clear … Continue reading The Possible Effect of Tightened Pleading Requirements on ADR
North Korea’s agreement to dismantle its nuclear program appears to be a stunning success of diplomacy. The six party talks appear to have brought the right actors to the table that can offer both carrots and sticks. Our $100 million in aid (1/3 of total package) seems like a bargain. Could it be that this … Continue reading Diplomacy as Catastrophe? Or is it a BOBO—the Best of Bad Options…
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
Recently, in an unpublished per curiam opinion in USA Flea Market v. EVMC Real Estate Consultants, et al., 2007 WL 2615887 (11th Cir., Sept. 12, 2007), a three-member panel of the Eleventh Circuit reversed summary judgment for a party seeking to enforce a contractual obligation to mediate as a condition precedent to litigation. Like so … Continue reading Enforcement of Mediation Clauses, Careful Drafting and Separability
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?
From Professor Ellen Deason, Moritz College of Law at the Ohio State University, comes our first guest blog: Most court challenges to the enforcement of settlement agreements reached through mediation are doomed to fail. As shown by Jim Coben’s and Peter Thompson’s empirical analysis of litigation concerning mediation, courts are far more likely to enforce … Continue reading Fraud in Mediated Settlement Agreements
For the past several years, I’ve been mulling through the implications of procedural justice in mediation and other forms of dispute resolution. Procedural justice is, simply enough, the justice of the procedures used to make decisions and resolve disputes. Researchers “discovered” procedural justice in the 1970s, as the American administrative state experimented with ways to … Continue reading The Relationship Between Justice and Status in Dispute Resolution
