Court ADR News

Federal Court Likens Mediator Neutrality to Judicial Recusal Standards

In a patent appeal, the Court of Appeals of the Federal Circuit likened mediator neutrality to judicial impartiality. However, in the specific case it found that a biased mediator did not warrant reversing a lower court judgment. The case CEATS Inc. v. Continental went to mediation, but did not settle. After CEATS lost at trial, it learned that the mediator had arbitrated a separate case which involved the same law firm that represented many of CEATS' opponents. After a lawsuit, the arbitration award was ultimately vacated because the arbitrator (now CEATS' mediator) failed to disclose his relationship with one of the firm's partners, who made an appearance in the case. CEATS moved for relief from judgment, based on the mediator's failure to disclose information about the arbitration lawsuit.

In ruling that the mediator should have disclosed the facts surrounding the litigation, the court spoke of the importance of mediator neutrality, stating that:

"Courts depend heavily on the availability of the mediation process to help resolve disputes. Courts must feel confident that they are referring parties to a fair and effective process when they refer parties to mediation. And parties must be confident in the mediation process if they are to be willing to participate openly in it. Because parties arguably have a more intimate relationship with mediators than with judges, it is critical that potential mediators not project any reasonable hint of bias or partiality." 

The court used the AAA/ABA/ACR Model Standards of Conduct for Mediators when determining that the mediator had a duty to disclose. It also applied a legal test originally used for a judge's failure to recuse, saying "mediators are bound by disclosure requirements similar to the recusal requirements of judges."

Although the Court of Appeals overturned a lower court finding that the mediator was neutral, it did not find a record that CEATS had suffered an injustice due to the mediator's lack of neutrality.  On neutrality, the Court of Appeals overturned the district court, saying that a reasonable person would want to consider the circumstances of the lawsuit in choosing whether to object to the choice of mediator. However, they did not award CEATS relief from judgment because there was no record that the mediator's bias had led to any injustice.

Madison County Foreclosure Shifts from Opt-In to Opt-Out

The Third Judicial Circuit of Illinois has made foreclosure mediation mandatory in Madison County unless the homeowner opts out. In the amended rule, once a foreclosure is filed, the homeowner will receive a summons and notice of mandatory mediation. The notice advises the homeowner on the documents required for mediation, legal aid and language interpretation services available, and provides a list of housing counselors. Until mediation is complete, no dispositive motions, including motions for default judgment, are allowed. However, if the homeowner does not appear for the initial intake for mediation, all motions shall be allowed. In addition to the rule change, the program will now pay its mediators, who previously worked pro bono.  

Michigan Enacts the Uniform Collaborative Law Act

Michigan is now the tenth state to enact the Uniform Collaborative Law Act. The state law provides for the use of collaborative law. Collaborative law is a voluntary process typically used in family law, in which lawyers representing the parties work together to come to an agreement. If no agreement is reached, the collaborative attorneys may not represent the parties at trial. Collaborative law attempts to encourage problem-solving between parties, rather than adversarial techniques. While many states have independent rules for collaborative law, the Uniform Collaborative Law Act seeks to raise awareness of the process and provide minimum requirements for all collaborative law agreements.

Research You Might Have Missed

Review of Elder and Guardianship Mediation Practice Yields Recommendations for Courts

Every so often, we highlight past research that we think is most useful to court programs and those who work in them. This month, we present a study that provides concrete recommendations to courts interested in starting or improving an adult guardianship mediation program.

In a January 2012 study, Elder and Guardianship Mediation, The Centre for Elder Law examines in depth the practice of elder and guardianship mediation in Canada and the United States. The study includes a review of the literature regarding best practices and provision of services, surveys and interviews of stakeholders and experts, and information collected from providers. In light of the information from all these sources, the authors discuss the key ethical considerations and challenges in elder and guardianship mediation, as well as standards for training and other qualifications. The latter is particularly based on the national standards adopted in the US. 

Based on their findings, the authors make several recommendations for court-connected programs. For courts just starting to develop programs, these include, among others:

• Design the program and its policies through a collaborative effort with the various stakeholders

• Develop clear policies regarding case selection and referral, and ensure that trained staff screen those referrals

• Include program evaluation from the beginning of the program

• Encourage a facilitative model of mediation and incorporate pre-mediation meetings into the process. Pre-meetings allow the mediator to determine who should participate in the mediation, screen for abuse and power imbalance, coach participants on the best way to present their issues, and "determine whether or not any party has capacity issues or a disability that may require accommodation."

• Establish a roster of private contract mediators who are specially trained in elder and adult guardianship issues. Evaluation of British Columbia's child protection mediation program found that private contract mediators were most likely to safeguard neutrality. In interviews, experts and stakeholders made the connection between the issues in child protection mediation and elder and guardianship mediation, including vulnerable parties, party capacity issues and concerns, the participation of multiple parties, concerns about abuse and power imbalance, and family dynamics.

• Establish a process for dealing with complaints regarding mediators on the roster

• Hire full-time administrative support

From Just Court ADR Blog

Resolution System Institute's Evening of Firsts

"RSI held our first-ever "friendraising" event and presented our first-ever RSI Appreciation Award... Attorney General Madigan spoke about the ways her office has addressed the foreclosure crisis on behalf of homeowners in the state and about her support of foreclosure mediation through a grant to RSI. It was great to hear someone who entrusted RSI with more than a million dollars praise our work!" Read the rest of this post by Susan Yates >>

One-Day Divorce in San Diego Court

"I love Richard Zorza's Access to Justice Blog, especially when he covers programs like the one offered by San Diego, California courts to accomplish divorce in a single day. Zorza cites a New York Times piece to explain how the process works. The divorcing couple files for divorce and reaches agreement on everything: property, debts, child-related issues, etc. Then the couple goes to court and a court coordinator helps ensure they have all the necessary documents and they are completed correctly. With the paperwork in order, the couple can get their divorce the same day." Read the rest of this post by Susan Yates >>

Values and Interests Revealed in Detroit "Grand Bargain"

"The story of the Detroit bankruptcy mediation's emerging "Grand Bargain" (as it has been dubbed in the media) is a fascinating case of many different groups working to protect their chosen interests. The bargain demonstrates how mediation allows parties to consider what they are willing to give in order to secure the things that matter most to them, and how traditional rivals may collaborate for a shared goal. Where litigation must have winners and losers, the proposed mediated bargain seeks to avoid that. Instead, it involves a complex balancing act in which many parties give a little to get a little — if "a little" is the right way to describe the potential movement of hundreds of millions of dollars." Read the rest of this post by Mary Novak >>

Be Mindful of the Sunk-Cost Bias Trap

"Just the other day, I learned the term "sunk-cost bias" and immediately thought of the mortgage foreclosure work that I do...The concept can have very real implications for more serious life choices, like whether or not to remain in a home once in foreclosure. A home is one of the biggest investments people make in terms of money, time and energy and as a result our homes can be a huge part of our identity and sense of security. Sunk-cost bias can result in homeowners who want to retain their property at all costs, even if that option isn't affordable or the property is severely underwater." Read the rest of this post by Shawn Davis >>

When It Comes to Mediation, Less Regulation May Be More

"You're a judge charged with overseeing a voluntary civil case mediation program in your court. Because you've been monitoring your program, you know that, though 75% of cases going through mediation are reaching agreement, the program isn't doing much to reduce judges' workloads because mediation generally occurs very late in the case.  What do you do?" Read the rest of this post by Jennifer Shack >>