Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!
Too many mediators give themselves too much credit when cases they mediate settle. And too many lawyers put too much responsibility for the success on the mediator. But ultimately, it takes a team effort, and a vigorously shared sense of responsibility to maximize the likelihood that a mediation will be productive.
No one person is in a position to identify, or to understand how to manage or capitalize on all the factors, considerations, emotions and forces that can come into play during the mediation of a matter that is in litigation. The more people working to identify and understand the variables in play, the better the odds that unnecessarily lost opportunities will not derail the mediation.
The mediation process, viewed superficially, seems fairly straightforward. But it isn’t. Even its goal is often misidentified. The real goal isn’t simply to get the case settled – it’s to determine the best settlement terms the mediation is capable of generating.
The route to identifying the “best accessible terms,” however, often is both unclear and rich in hazards. The participants can reduce the risk of taking wrong turns and getting lost if all of them, not just the mediator, help decide which way to go when the group encounters forks in the road.
Among other things, this means that lawyers and litigants should not think only about how to impress or persuade or capture the mediator. Instead, it can be very important to think about the other participants in the process: what do they need, how can we try to address their interests or concerns, what would help opposing counsel gain greater trust from his client, what kinds of things could we do that would show the other side that we really have heard them, what can we do to increase our credibility with the other side, how is the other side likely to feel about or respond to different steps that we might take?
By asking these kinds of questions, the participants are attempting to improve or preserve the health of the process itself. They don’t want the process to break down on some artificial or avoidable grounds, e.g., because they take a tactical or behavioral risk that backfires, or because they are insensitive to something an opponent cares a lot about. And instead of relying completely on the mediator to keep the process on track, they explicitly discuss these kinds of questions with them (usually in private caucus), sharing their insights into other participants’ circumstances and personalities, so that, working with the mediator, they can take the steps that will enable them to use mediation to determine what their best alternative to trial really is.
This week’s issue of The Lawyer Weekly discusses the recent developments of UNCITRAL’s Online Dispute Resolution System. Following is an excerpt from the article and link to the piece in full.
International arbitration is all over the map when it comes to resolving minor commercial disputes. Soon the United Nations Commission on International Trade Law (UNCITRAL) will announce its recommended rules for an ODR later this year.
“The concern is there are many, many millions of cross-border, but small transactions,” said Timothy Lemay, principal legal officer with the UNCITRAL Secretariat in Vienna. “There is no very good place for those disputes to be resolved.”
According to a UN report on the issue, countries around the globe are looking for a consistent approach to dealing with smaller commercial disagreements — and they believe a new model is needed.
“Many delegations voiced the view that traditional dispute resolution mechanisms, including litigation through the courts, were inappropriate for addressing these types of disputes, being too costly and time-consuming in relation to the value of the transaction,” the report stated.
“It’s undeniable that government resource shortages are making it difficult for many governments to maintain or improve small-claims dispute options, so long as they continue to rely on traditional court litigation,” said Darin Thompson, legal counsel with the B.C. Ministry of the Attorney General in Victoria, Canada.
“But in terms of the UNCITRAL model for low-value, high-volume cross-border disputes, the rationale seems to be more about providing redress for consumers where none would otherwise be available,” he added.
“We’re now working on the general procedural rules, such as who files a claim, when, during what period, what can be claimed … remedies, and who decides the remedies,” said Lemay.
A three-stage process — negotiation, facilitation, and arbitration — has been recommended, he added.
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Today’s post comes from JAMS Panelist Robert S. Luft, Esq., a San Jose-based mediator and arbitrator who utilizes 40 years of experience for a fair, optimistic, energetic and patient approach to ADR.
The recent California appellate ruling in Glen Provost v. Regents of the University of California sheds significant light on judicial views of written settlement agreements. In particular, the case dealt with who should sign a settlement agreement and the ruling has significant implications for their enforceability in California, particularly with respect to corporations.
For corporations, whether or not a settlement agreement can be enforced depends on who signs it. A corporation acts through its employees and agents and that raises the question of what employee or agent can bind the entity to Judgment enforcement. This issue was partially answered in the Provost case.
Glenn Provost was a former employee of the University of California who brought a whistleblower suit against coworkers and the University. It drew a cross-complaint for breach of contract and other causes of action. The case settled, but Mr. Provost backed out of the agreement and the University moved to enforce the settlement. One of the plaintiffs’ objections to enforcement was the University had an in-house lawyer and not a party sign the agreement.
In Provost, Carolyn Yee, the in-house counsel for the Regents, signed the agreement as she had been designated as the party representative. She was an employee of the University and designated, according to the court, as an authorized corporate representative. Ms. Yee was not a counsel of record on the complaint. She was a counsel of record on the cross-complaint. The court emphasized that did not disqualify her from signing as a corporate representative. The settlement agreement was upheld as enforceable since it had been signed by the “Party” defendant.
So, how do you ensure the correct person has signed the settlement agreement to make it enforceable?
Some suggestions to consider:
- The person should be an employee of the corporation and fully familiar with the case.
- The person should be designated in writing as the “authorized corporate [or entity] representative for the litigation.” In Provost that writing appears to have been in the Regent Bylaws, but without Bylaws, I suggest it be a separate document spelling out the authority for the appointment.
- The person should not be Counsel of record for the Corporation or entity in the litigation. This eliminates any conflict distinction of Counsel on the complaint or cross-complaint. The Court pointed out being an Attorney alone does not disqualify someone from being a corporate representative.
- The person should attend all mediation or settlement conference sessions or have participated in other settlement discussions.
Ultimately, it’s best to err on the side of over qualification of a corporate employee representative to sign a settlement agreement to ensure it will be enforceable in Court. The recent Provost case provides the yardstick for criteria to use in the selection of that employee.