Thursday, August 25, 2011

Focus on the Decision Maker - Not on the Deal

This article is a great reminder of where the focus in mediation needs to be.  I've never been a fan of pushing mediation sessions late into the night just to "get it done today" or "strike a deal while we have everyone at the table." Decision makers need to pace themselves to make the best decisions - not be put in a position of late day fatigue that leads to a rushed decision.

Wednesday, August 17, 2011

Great Article from Business Standpoint

Mutually beneficial. Final. Creative. Addresses issues a lawsuit never could. Preserved relationships. Cost effectiveness. Faster resolution.

This article from PropertyCasualty 360 hits every reason why businesses should mediate disputes with customers, partners, contractors, etc. It just makes sense.

Wednesday, August 10, 2011

New Jersey Court Upholds Enforceability of Mediated Agreements

On August 9, 2011, the New Jersey Superior Court, Appellate Division, released an opinion in the case of WILLINGBORO MALL, LTD. v. 240/242 FRANKLIN AVENUE, L.L.C., upholding the enforceability of agreements reached through mediation.  While not the official reporter, a copy of the opinion is available on the Leagle website:

The case involved a commercial real estate dispute that was referred to mediation by the trial court.  After several hours of mediation, the parties reached an oral agreement.  Three days later, counsel for one of the defendants circulated a letter to all counsel and the trial court outlining the terms of the settlement.  A few days after that, the defendant notified all parties and the court that the settlement funds had been escrowed.  The plaintiff refused to go forward with the settlement, asserting no agreement had been reached.  The defendants filed a motion to enforce the settlement, including a certification from the mediator, who was later deposed and testified at trial.

The trial court enforced the settlement and the plaintiff appealed, arguing that any settlement not reduced to writing and signed at the mediation was unenforceable and that enforcement of a settlement reached at mediation was contrary to the non-binding nature of the mediation process.

The Superior Court affirmed the trial court, finding that the Uniform Mediation Act, as enacted in New Jersey, did not require an agreement to be reduced to writing and signed before the parties left the mediation session.  As the Court stated, “To be sure, preparation of a writing memorializing the agreement at the mediation session may be the preferable and advisable course.  We must recognize, however, that some disputes may be complicated and the writing memorializing the agreement may require some time to produce.”  The Court found the letter drafted three days after the session was sufficient for enforcement under the circumstances of the case.

The Court also pointed out the plaintiff’s misinterpretation of the non-binding nature of mediation:

Plaintiff’s position also ignores the reason for referring a matter to mediation.  The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. (Internal citation omitted) In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party.  Indeed, such a result is the antithesis of the mediation process.  Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment.  The very purpose of the process is to resolve the dispute.

Finally, the Court noted that enforcing a verbal agreement reached at mediation would be difficult due to the confidentiality of the process.  However, the parties had breached that confidentiality and the trial court had ruled on that waiver of confidentiality.  The plaintiff did not contest the trial court’s rulings on the waiver on appeal.

Monday, August 8, 2011

Mediating Elder Care Issues - Saving Families and Protecting Dignity

This is a great article on the issue of mediating disputes involving care for elderly parents.  Elder care is a growing area for mediation and these disputes can be very difficult for the families facing them.  Not only are there many financial considerations involving care for an elderly or ailing parent, but there are also many emotional costs that mediation can can help the family address.  I encourage families facing these issues to consider using a mediator - either alone or in conjunction with other professionals such as financial planners or health care providers - when the decision making becomes contentious.  Family relationships can be mended while dignity and civility are protected through the process.

Tuesday, August 2, 2011

Mediation for Government Gridlock? If only it would work....

This post from The Hill is on point.  It would be wonderful if our elected officials - whether nationally, statewide or locally - could work together well enough to at least agree that such a plan such as this would be worth exploring.  It would be even better if our elected officials could treat debate in a serious and civil manner with the goal of reaching compromise on important issues of policy.  Unfortunately, it seems at all levels of government rhetoric drives the day and taking steps towards making real compromise only comes late in the 11th hour and gives rise to mediocre results.  We should not only expect, but also demand better from our elected officials.