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Archive for the ‘Court Opinions’ Category

Western District of Pennsylvania’s Updates to ADR Policy and Procedures Affect Process for Bringing Sanctions

Nicole Wilmet, March 30th, 2018

In February, the Western District of Pennsylvania released an order to update the court’s ADR policy and procedures, specifically regarding the procedure used for bringing sanctions. This month, the court released a second order with a minor amendment to the February updates.

The impetus behind these changes, as reported in a recent article from the Allegheny County Bar Association Lawyers Journal, stems from an increase in attorneys filing motions for sanctions related to ADR. As the Lawyers Journal explains, a significant amount of the sanctions filed alleged that parties attend mediation in bad faith with no intent to settle or lack the authority to reach an agreement. In response to a call from judges and practitioners to modify the court’s policies, the court’s Case Management/ADR Committee asked Magistrate Judge Lisa Pupo Lenihan to lead an ad hoc subcommittee to propose rule changes to deter motions for sanctions. The changes developed by the ad hoc subcommittee were then instituted by Judge Joy Flowers Conti in the February and March orders.

The largest modification to the court’s policies is the addition of a good faith definition and a new process for bringing motions for sanctions. Under the order, the court defines “good faith” as a “duty of the parties to meet and negotiate with a willingness to reach an agreement.” Additionally, the order mandates that any party who is scheduled for a mediation and either (1) does not intend to make a settlement demand or offer or (2) is waiting for the disposition of a certain motion before settlement discussions must now inform the mediator and the other parties of their intent no later than 15 days before the mediation. Originally, the February order gave the parties 10 days to share this intent with the mediator and other parties but the March order modified and extended this deadline to 15 days.

The most notable modification found under the order is an appendix, which outlines the new process for bringing sanctions and makes the process more arduous. Under the appendix, any party filing a motion for sanctions regarding ADR, must first serve the other party their proposed motion for sanctions. Then the parties have 14 days to discuss and try to resolve the issues raised in the motion. If the parties are able to resolve their issues, nothing further is required. However, if the parties are not able to resolve their issues, then the party filing for sanctions must first file a Notice of Intent to file for sanctions and certificate confirming the parties discussed the motion and were unable to resolve the issues raised. The certificate must also identify whether the parties agree or disagree that resolving the motion will implicate confidential information. Once the party’s Notice of Intent is filed, the court will then schedule a conference in an attempt to resolve the issues before the motion for sanctions is filed.

The court’s full policies and procedures, including these recent updates, can be found here.

CA Confidential: How The Latest Challenges to California’s Evidence Code Undermine Mediation

Eric Slepak-Cherney, November 3rd, 2015

In the world of ADR news, California’s mediation confidentiality provisions are achieving “Kardashian”-like levels of fame at the moment, with a comparable amount of dramatic fireworks to boot. Since 1993, California has included in its Evidence Code provisions which guarantee mediation confidentiality and greatly limit the discovery and admission of evidence procured from mediations. However, between an initiative to rewrite the California Evidence Code and a recent decision in Delaware’s influential Court of Chancery, these protections face a challenge, one that threatens to jeopardize the reliability of mediation as a viable dispute resolution process in the Golden State. (more…)

Domestic Violence Finding Overrides Agreement to Mediate, NJ Court Says

Mary Novak, April 15th, 2015

A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate. The parties, O.P. and L.G-P. (names kept confidential by the court) were a divorced couple with one child. In their property settlement agreement they had agreed to continue communicating about their child, and to use mediation in case of disagreement. However, after the divorce judgment a final restraining order (FRO) was entered against the former husband O.P. under the Prevention of Domestic Violence Act. After the FRO, support was ordered to be paid through the Probation Division.

L.G-P., the former wife, took O.P. to chancery court for several payments she said O.P. had not made. Some of the missed payments hinged on communications that L.G-P. had not had with O.P. She protested that the restraining order meant that O.P. was not to communicate with her. The court responded by encouraging her to change the FRO so that the two parties could email about these matters. L.G-P. said she did not want to do this because O.P. would send her derogatory and threatening emails.

L.G-P. also asked the court to release her from the mediation requirement, saying that past mediations had not led to her receiving any of the requested payments from O.P. When L.G-P. claimed that one matter had not yet been resolved during two years of mediation sessions, the trial court ordered her to go to a mediator and resolve the rest of their issues.

The appeals court reversed this order. The court declared that the provisions of a property settlement agreement that required mediation and communication should not be enforced after a final restraining order prohibiting contact was entered. The court stated that “[a]lthough returning to court may be inconvenient and costly, alternate dispute resolution methods are not safe when an FRO has been entered” because perpetrators of domestic violence tend to control and dominate their partners. Therefore, the court found, mediation could not be safe even if the environment were secure, or if shuttle mediation were used or if the parties had representation. Interestingly, New Jersey statutes already prohibit mediation in cases determining whether domestic violence has occurred or determining custody or parenting time. Here, the court ordered that mediation should not be used even when an existing agreement called for it, after the court issued a final finding of domestic violence through an FRO.

Big News in Court ADR — A Look Back at 2014

Mary Novak, December 18th, 2014

Our monthly e-newsletter Court ADR Connection has updates on RSI’s activities, cutting-edge ADR research, and the latest court ADR news from across the country. As we wind down 2014, I thought it might be fun to take a look at a few of the most significant news stories we reported on this year.

Detroit Bankruptcy Mediated in “Grand Bargain”

The most-watched court ADR news story of 2014 may have been the mediated settlement that resolved the City of Detroit’s municipal bankruptcy. Without doubt, this riveting drama of competing interests coming together to form a “Grand Bargain” will be studied and discussed for years to come. We reported on facets of this story a few times, both here in our blog and in our newsletter: (more…)

Settlement Conferences and the Price of Contempt

Mary Novak, May 27th, 2014

In a settlement conference, what is the value of having someone present with full authority to settle? If one party lacks the authority, it can result in aggravation, wasted court fees, and lost time for trial preparation. American Family Insurance (AFI) recently learned this to their cost in a dog-bite case in Washoe County, Nevada. Because Judge Janet Berry did not believe the insurers had complied in good faith with her rules on authority to settle, she found the company in contempt and sanctioned them $50,000. (more…)