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Recently, in an unpublished per curiam opinion in USA Flea Market v. EVMC Real Estate Consultants, et al., 2007 WL 2615887 (11th Cir., Sept. 12, 2007), a three-member panel of the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
Ironically, I was reading the latest articles in the Journal of Personality and Social Psychology relevant to negotiation when I heard about Ann Coulter’s diatribe last week regarding her “perfect world” in which everyone would be Christian. When challenged as to whether she actually meant this, she held fast, arguing that Christianity is like “Federal … Continue reading Why I Want to Negotiate with Ann Coulter
Proponents of arbitration have long touted the core values of arbitration: speed, efficiency and finality. As arbitration agreements have become increasingly widespread, many critics suggest that the lack of due process protections in arbitration result in unfairness, especially to the classic one-shot player – the consumer or employee. One way to ensure that parties receive … Continue reading Should arbitration transcripts be routine?
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?
On the day that the Foreign Relations Committee voted to call the Armenian genocide a “genocide”, it is perhaps even more fitting to talk about restorative justice and human rights. As promised last week, I wanted to report on Carrie Menkel-Meadow’s talk at Marquette. Carrie’s talk was entitled Cultural Variations in Restorative Justice: Case Studies … Continue reading Restorative Justice–Both Pursuing Justice and Repairing the Harm
Like Sarah (see her 10/8/07 post), I also noticed that Public Citizen released a report on the credit card industry’s use of mandatory arbitration clauses. The report uses plenty of inflammatory language: consumers are being “forced into the shadowy world of binding mandatory arbitration,” arbitration firms “hire arbitrators to rubber-stamp rulings that favor business,” and … Continue reading When Is the Temptation Too Much?
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
Public Citizen recently issued a report detailing “the arbitration trap” consumers face when they sign up for credit card accounts (http://www.citizen.org/publications/) Public Citizen is a non-profit group that focuses, among other things, on eliminating the use of mandatory arbitration clauses in employment and consumer disputes. The report details many of the problems associated with the … Continue reading Credit Card Companies and Arbitration
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?