Professional Documents
Culture Documents
Disputing Irony
Disputing Irony
43
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b. Fraud/Misrepresentation . . . . . . . . . . . . . . . . . . 80 R
c. Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 R
d. Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . 83 R
e. Mistake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 R
f. Unconscionability . . . . . . . . . . . . . . . . . . . . . . . . . 86 R
g. Technical Defenses . . . . . . . . . . . . . . . . . . . . . . . . 87 R
h. Other Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 R
IV. Conduct of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 R
A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 R
B. Attorney Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 R
1. Attorney Misconduct as a Defense to
Enforcement Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 90 R
2. Attorney Ethics and Malpractice . . . . . . . . . . . . . . 92 R
C. Mediator Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 R
1. Mediator Misconduct as a Defense to
Enforcement Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 95 R
2. Mediator Ethics and Malpractice—Actions
Against the Mediator . . . . . . . . . . . . . . . . . . . . . . . . . 98 R
D. The Special Challenges Posed by Hybrid
Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 R
E. Judicial Ethics and Malpractice . . . . . . . . . . . . . . . . . . . 102 R
V. Duty to Mediate/Condition Precedent . . . . . . . . . . . . . . . . . 105 R
A. Judicial Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 R
B. Contractual Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 108 R
C. Statutory Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 R
D. Consequences of Non-Participation . . . . . . . . . . . . . . . 110 R
VI. Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 R
A. Allocating the Cost of Mediation Participation . . . . 112 R
B. Fees as a Sanction for Failure to Mediate or
Other Inappropriate Acts . . . . . . . . . . . . . . . . . . . . . . . . . 115 R
C. Fees for the Case as a Whole . . . . . . . . . . . . . . . . . . . . . 116 R
VII. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 R
A. Sanctions and the Duty to Mediate . . . . . . . . . . . . . . . 119 R
B. Sanctions for Breach of Confidentiality . . . . . . . . . . . 122 R
VIII. The Mediation-Arbitration Connection . . . . . . . . . . . . . . . . 123 R
A. Enforcing Pre-Dispute Mediation/Arbitration
Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 R
B. Waiver of Right to Arbitrate Through
Mediation Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R
IX. Miscellaneous Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 R
A. Procedural Implications of a Mediation Request
or Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 R
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1. See generally Bobbi McAdoo & Nancy A. Welsh, Look Before You Leap and
Keep on Looking: Lessons from the Institutionalization of Court-Connected Mediation,
5 NEV. L.J. 399 (2005); Stephen N. Subrin, A Traditionalist Looks at Mediation: It’s
Here to Stay and Much Better Than I Thought, 3 NEV. L.J. 196 (2003); Sharon Press,
Institutionalization of Mediation in Florida: At the Crossroads, 108 PENN ST. L. REV.
43 (2003).
2. See, e.g., Deborah R. Hensler, Suppose It’s Not True: Challenging Mediation
Ideology, 2002 J. DISP. RESOL. 81, 81 (2002) (asserting that evidence to support the
claim that mediation saves courts and litigants time and money “has failed to materi-
alize”); Jacqueline M. Nolan-Haley, The Merger of Law and Mediation: Lessons from
Equity Jurisprudence and Roscoe Pound, 6 CARDOZO J. CONFLICT RESOL. 57, 59 (2004)
(asking whether “court-connected mediation [has] lost its way on the road to justice”
by becoming “so intertwined with litigation and adjudication as to be indistinguish-
able from judicial settlement processes or traditional bilateral negotiations”); Lela P.
Love, Preface to the Justice in Mediation Symposium, 5 CARDOZO J. CONFLICT RESOL.
59, 59 (2004) (observing that a symposium created to celebrate the contributions of
mediation to our system of justice instead ended up highlighting the dissonance “be-
tween what mediation promised and what is being delivered”); Joseph P. Folger, “Me-
diation Goes Mainstream”—Taking the Conference Theme Challenge, 3 PEPP. DISP.
RESOL. L.J. 1, 31 (2002) (opining that institutionalization of mediation has diminished
the defining “alternative” characteristics of the mediation process and has tended to
turn mediation into a forum for dispute resolution that is highly directive and evalua-
tive in the service of reaching settlements); Nancy A. Welsh, The Thinning Vision of
Self-Determination in Court-Connected Mediation: The Inevitable Price of Institution-
alization?, 6 HARV. NEGOT. L. REV. 1, 5 (2000) (noting that “the party-centered em-
powerment concepts that anchored the original vision of self-determination are being
replaced with concepts that are more reflective of the norms and traditional practices
of lawyers and judges, as well as the courts’ strong orientation to efficiency and clo-
sure of cases through settlement”).
3. See, e.g., Frank E. A. Sander, Some Concluding Thoughts, 17 OHIO ST. J. ON
DISP. RESOL. 705, 706 (2002) (calling it remarkable “how little we know about many
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issues that are basic to ADR”); Jean Sternlight, ADR is Here: Preliminary Reflections
on Where it Fits in a System of Justice, 3 NEV. L.J. 289, 297 (2003) (finding it “shock-
ing how little we actually know about what disputants want, and what they perceive
to be fair”); Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute
Resolution Movement is Re-Shaping Our Legal System, 108 PENN ST. L. REV. 165, 192
(2003) (noting that only a few empirical studies actually report what happens in
court-annexed mediation); Thomas J. Stipanowich, ADR and “The Vanishing Trial”:
What We Know—And What We Don’t, DISP. RESOL. MAG., Summer 2004, at 7, 7 (as-
serting “that federal and state court-connected ADR programs are ubiquitous, [but]
statistical information on their performance and impact on the litigation process is
fragmentary”).
4. See, e.g., Roselle L. Wissler, The Effectiveness of Court-Connected Dispute
Resolution in Civil Cases, 22 CONFLICT RES. Q. 55, 82 (2004) (reviewing empirical
research on mediation and neutral evaluation and concluding that future studies are
needed to address critical gaps including “litigation context’s impact on the efficiency
and effectiveness of court-connected mediation”); Deborah R. Hensler, ADR Research
at the Crossroads, 2000 J. DISP. RESOL. 71, 78 (2000) (bemoaning a growing indiffer-
ence and, in some cases, hostility to empirical research on ADR and calling for re-
newed vigor “to test our assumptions about what ADR is, and about what it can do,
about whom it benefits, about its public and private costs, and about its contributions
to the fair resolution of civil disputes”); Sander, supra note 3, at 706–08 (proposing a R
research agenda to examine mediation cost effectiveness, mediation satisfaction, the
correlation between training and performance, the value of co-mediation, implications
of mandatory mediation, and the importance of confidentiality); John Lande, Com-
mentary, Focusing on Program Design Issues in Future Research on Court-Connected
Mediation, 22 CONFLICT RES. Q. 89, 97 (2004) (urging a research agenda that focuses
on program design choices rather than “trying to establish the general efficacy of me-
diation programs”).
5. See ROBERT SOMMER & BARBARA SOMMER, A PRACTICAL GUIDE TO BEHAVIORAL
RESEARCH: TOOLS AND TECHNIQUES 156 (2002) (discussing the limitations of research
through questionnaires).
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6. See Lyons v. Booker, 982 P.2d 1142, 1143 (Utah Ct. App. 1999) (stating the
fundamental irony inherent in every litigated mediation conflict—that “the parties
find themselves in the unenviable position of having created an additional dispute on
top of the previously existing one”).
7. The dataset is organized as a searchable Excel file, and you can easily com-
pile lists of cases by mediation issue, jurisdiction, level of court, or a wide number of
other variables. Cross-tab functions within the Excel program (available as “Filter”
options in the Excel “Data” toolbar) allow you to quickly tailor searches and combine
variables (e.g., generate a list of state supreme court decisions where mediators testi-
fied and a mediated settlement was enforced; or a list of federal circuit court decisions
in a specific year which address mediation ethics). The dataset is a work in progress
that we will be updating each year. We encourage researchers to use the dataset and
ask only in return that you attribute it (James R. Coben & Peter N. Thompson, Ham-
line University School of Law Mediation Case Law Dataset) in any published work.
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8. Others have noted and documented this same phenomena. See, e.g., Peter
Robinson, Centuries of Contract Common Law Can’t Be All Wrong: Why the UMA’s
Exception to Mediation Confidentiality in Enforcement Proceedings Should be Em-
braced and Broadened, 2003 J. DISP. RESOL. 135, 164–65 (2003) (noting that it “may
be surprising that the vast majority of the time, when enforcing a mediated agree-
ment, courts act as if mediation confidentiality did not exist”).
9. See infra notes 40–60 and accompanying text. R
10. See infra notes 40–55 and accompanying text. R
11. See, e.g., Sander, supra note 3, at 708 (calling the importance of mediation R
confidentiality “[p]erhaps the most sacred canon in mediation”).
12. See infra notes 232–46 and accompanying text. R
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from the dataset is that in litigation, existing legal norms force de-
fects in the mediation process to be framed in terms identical to those
used to address issues that plague unfacilitated party-bargaining.
Thus, when parties attempt to enforce mediation settlements in
court, the litigation focuses on typical contract issues, such as claims
of unenforceable agreements to agree, failure to have a meeting of the
minds, fraud, changed circumstances, and mistake.
These traditional contract defenses may not adequately protect
the fairness of the mediation process. As set forth in Part III, rarely
has a mediation participant successfully defended against enforce-
ment of a mediated agreement based on a traditional contract de-
fense. These contractual defenses were developed in the context of a
free enterprise bargaining process and may not be sufficient to en-
sure a fair facilitative process and a self-determined agreement.
In light of these trends and others, in Part X we make recommen-
dations for statute and rule reform, ranging from the use of “cooling
off” periods during which parties are free to exercise a right of rescis-
sion of a mediated settlement, to the adoption of special confidential-
ity rules regarding third party access to mediation evidence. We also
offer a number of best practice suggestions for advocates, neutrals,
and mediation consumers. Some discourage particular behavior,
such as over-promising on mediation confidentiality or continuing
mediation when decision-makers leave the room; others encourage
behavior, such as obtaining a signed agreement to mediate, aggres-
sively investigating and disclosing conflicts of interest, or anticipat-
ing that drafting releases may be difficult. The good news is that the
misery and expense incurred by the unfortunate parties forced to liti-
gate their mediation mistakes provide valuable lessons for those will-
ing to review them. By doing so, perhaps we can help others avoid
their own “disputing irony.”
I. CONSTRUCTING A DATABASE
A. Overview
We searched the Westlaw databases “allstates” and “allfeds” for
the term “mediat!” for the years 1999 to 2003 and found a total of
8127 entries. After reviewing the Westlaw summary results list for
each entry, we excluded opinions which merely referred to mediation
or a mediator. We read each of the remaining cases, but discovered
that many did not involve a significant mediation issue.13 Some of
13. Many reported cases in Michigan referred to a “mediation” process where the
parties would present their case to a case evaluation panel composed of three persons
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the opinions used the term mediation or mediator, but upon closer
analysis were found to involve a neutral that acted as an arbitrator,
or even as a judge.14 Such cases were not included in the database.
We selected 1223 cases that implicated mediation issues and in-
cluded them in the database.15 For each of these cases, the authors
completed a questionnaire16 that reported information on a number
of variables.
who evaluate the case, providing “a separate award as to the plaintiff’s claim against
each defendant and as to each cross-claim, counterclaim, or third-party claim that has
been filed in the action.” MICH. COMP. LAWS ANN. 2.403(K)(2) (West 2006). A party
may reject the panel’s evaluation and proceed to trial, but if the verdict is less than
the award, the rejecting party is responsible for paying the opposing party’s actual
costs. MICH. COMP. LAWS ANN. 2.403(L)–(O). See H.A. Smith Lumber & Hardware
Co. v. Decina, 670 N.W.2d 729, 738 (Mich. Ct. App. 2003) (holding that mediation
sanctions could be imposed on the party rejecting the evaluation of the mediation
panel); Dessart v. Burak, 652 N.W.2d 669, 674 (Mich. Ct. App. 2002) (addressing me-
diation sanctions); Cheron, Inc. v. Don Jones, Inc., 625 N.W.2d 93, 97–98 (Mich. Ct.
App. 2000) (addressing mediation sanctions). We did not treat this evaluation process
as a mediation. Based on the recommendations of the Michigan Supreme Court,
Michigan amended its process in 2000 to include a mediation process referred to as
“facilitative mediation.” MICH. R. CIV. P. 2.411.
14. If the court referred to a “mediation” process involving a judge or court per-
sonnel, we treated the process as a mediation unless we could clearly determine that
the “neutral” did not act as a mediator. On the other hand, if the opinion referred to
the process as a judicial “settlement conference” we did not include the case in our
dataset even if the judge appeared to act as a facilitative neutral. See Cornell v. Delco
Elecs. Co., 103 F. Supp. 2d 1116, 1117 (S.D. Ind. 2000) (addressing an agreement
arrived at in “settlement conference” where Magistrate Judge acted as a “go-between
during negotiations”).
15. The research reflects the total number of opinions reported in Westlaw.
Some lawsuits involved multiple reported opinions. Because we wanted to study the
extent to which mediation issues were being litigated and addressed by the courts, we
treated each opinion involving a mediation issue as a separate entry. Consequently,
the total number of opinions/entries is greater than the number of lawsuits. We also
discovered that some decisions reported in LEXIS, usually trial decisions, are not re-
ported in Westlaw and many Westlaw opinions are not reported on LEXIS. Perform-
ing a similar word search from 1999 through 2003 using the term “mediate!” we found
7980 total cases on LEXIS (4779 state cases and 3201 federal) compared to the 8111
produced through a Westlaw search. We also discovered that Westlaw continuously
adds cases to its databases many months after they have been decided. Our final
cutoff date for Westlaw search numbers and cases was January 31, 2005. Westlaw
searches after this date will likely reveal some additional cases and perhaps delete
some of the cases we reported. We acknowledge that our procedure did not pick up
every mediation case on Westlaw. We tried. We are continually reviewing the
database and our case analysis and making minor corrections or additions to be sure
that it is as accurate and complete as possible.
16. This questionnaire was amended several times. We continued to refine the
questionnaire and reanalyze the cases throughout the process. The final version of
the questionnaire is included in Appendix A, infra.
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The 1223 cases were placed in one of nine subject matter catego-
ries: Personal Injury/Tort; Contract/Commercial; Family Law; Em-
ployment (including harassment and discrimination claims); Estate;
Malpractice; Tax/Bankruptcy; IDEA Claims; and Other. The specific
issues addressed in each case were reported and separated into the
following categories: enforcement of an alleged mediation agreement;
mediation sanctions; duty to mediate; mediation confidentiality; me-
diation ethics or malpractice in the conduct of the mediation; media-
tion/arbitration issues; fees; condition precedent; or other. Many of
the cases involved more than one issue. For example, numerous
cases involved the issue of whether compliance with a statutory or
contractual mediation clause was a condition precedent and created a
duty to mediate before bringing suit.17 When the case involved an
enforcement issue, a number of other issues relating to defenses
raised were reported.
In response to current concerns about the mediation process, we
included questions relating to confidentiality, mediator conduct, and
litigation over sanctions and fees. The questionnaire recorded sev-
eral aspects of mediation confidentiality, starting with whether the
mediator provided evidence by testimony or affidavit or whether the
parties introduced evidence of statements by the mediator. We also
reported when the parties revealed mediation communications in
subsequent litigation. We noted when a claim of privilege was raised
and whether the claim of privilege was upheld. The questionnaire
also kept track of misconduct claims as well as claims for sanctions or
fees.
B. Raw Numbers
The initial Westlaw search for opinions using the term “mediat!”
produced 8127 opinions, composed of 5124 state court cases and 3003
federal court cases. The number of opinions that mentioned media-
tion in some form increased steadily from 1172 in 1999 to 2169 in
2003, an eighty-five percent increase over the five-year period. As
shown in Table 1, the number of opinions in our database increased
17. See, e.g., Kent Feeds, Inc. v. Manthei, 646 N.W.2d 87, 89–90 (Iowa 2002) (re-
jecting claim that failure to comply with the mediation requirement under state
farmer creditor statute barred claim against guarantors); DeGroff v. Mascotech Form-
ing Techs., 179 F. Supp. 2d 896, 902–10 (N.D. Ind. 2001) (enforcing a mandatory me-
diation/arbitration clause in a Title VII employment dispute); Montgomery v. Earth
Tech Remediation Servs., No. 99-5612, 2000 WL 276101 (E.D. Pa. Feb. 29, 2000)
(finding a mediation/arbitration agreement binding in a Title VII employment case);
see also BD v. DeBuono, 193 F.R.D. 117, 140 (S.D.N.Y. 2000) (rejecting claim that the
failure to raise an issue in the mediation of an IDEA dispute waived that claim).
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18. Since many mediations are private matters, it is difficult to determine the
number of mediations conducted in any jurisdiction. According to the National
Center for State Courts, “[b]ecause programs and rules vary widely from state to
state, and even within a single state, national data is nearly impossible to come by
and even more difficult to analyze.” NATIONAL CENTER FOR STATE CONCERNS, Media-
tion FAQ’s, http://www.ncsconline.org (last visited Apr. 5, 2005). The Florida Dispute
Resolution Center has documented over seventy-six thousand court-connected media-
tions in 2002, which does not account for all the mediations in Florida. See Press,
supra note 1, at 55 (citing KIMBERLY KOSCH, FLORIDA MEDIATION AND ARBITRATION R
PROGRAMS: A COMPENDIUM (2003)). In 2000–2001, nearly 8000 cases were mediated
in just five superior courts in California. See Stipanowich, supra note 3 (citing the R
Judicial Council of California, Evaluation of the Early Mediation Pilot Projects (Feb.
27, 2004)). Nationally, community mediation programs handle an estimated 100,000
conflicts each year. See Timothy Hedeen, The Evolution and Evaluation of Commu-
nity Mediation: Limited Research Suggests Unlimited Progress, 22 CONFLICT RES. Q.
101, 101 (citing 2003 report of the National Association for Community Mediation).
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19. The ADR community may suggest a different metaphor, like moving from the
shadows into the darkness of the adversary system. See generally James J. Alfini &
Catherine G. McCabe, Mediating in the Shadow of Courts: A Survey of the Emerging
Case Law, 54 ARK. L. REV. 171 (2001).
20. For ease in analysis we treated all federal district courts in the same state as
one jurisdiction.
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reported in 2004 and the first six months in 2005 leads us to predict
that the total number of mediation opinions in both years will exceed
four-hundred cases.
C. Level of Court
D. Subject Matter
Nearly half of these cases (124) came from five states where media-
tion is an integral part of the family law process: Texas (43); Florida
(33); California (20); Ohio (14); and Washington (14). Personal injury
and employment litigation each represented about twelve to thirteen
percent of the total number of cases. The employment litigation cases
included a number of Title VII25 and other statutory claims.26
There were a number of claims brought under the Individuals
with Disabilities Education Act (IDEA).27 Under this statute, schools
are required to develop procedures to allow parents of children with
disabilities to contest “any matter relating to the identification, eval-
uation, or educational placement” of their child.28 The Act creates a
right to mediation or a due process hearing and, if necessary, a right
to litigate in court. Congress provided a fee shifting provision to ease
the financial burden on parents in these disputes, allowing for the
recovery of attorneys’ fees if they become the “prevailing party.” Sev-
eral cases addressed the question of whether parents who have ob-
tained a settlement in mediation, rather than in a court decision, are
“prevailing parties.”29
Cases involving mediation issues were diverse. We placed 167
cases in a “Miscellaneous” category. These included cases involving
such diverse issues as property disputes,30 civil rights cases outside
court order. See, e.g., Goins v. Goins, 762 So. 2d 1049 (Fla. Dist. Ct. App. 2000) (con-
testing the language in a court order that purported to incorporate a mediated
settlement).
25. See, e.g., Stewart v. Memphis Hous. Auth., 287 F. Supp. 2d 853 (W.D. Tenn.
2003) (examining the resolution of a Title VII complaint brought against housing au-
thority); Montgomery v. Earth Tech Remediation Serv., No. Civ.A. 99-5612, 2000 WL
276101 (E.D. Pa. Feb. 29, 2000) (finding a mediation/arbitration agreement binding in
a title VII employment case).
26. See, e.g., Baum v. Rockland Cmty. Coll., 299 F. Supp. 2d 172 (S.D.N.Y. 2003)
(examining enforcement issues raised after mediated settlement agreement regarding
violations of the ADEA and ADA).
27. 20 U.S.C. §§ 1400–1487 (1997).
28. 20 U.S.C. § 1415(b)(6)(A).
29. See, e.g., T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 482 (7th Cir.
2003) (ruling that parents were not “prevailing parties” for private settlement, but
were “prevailing parties” justifying attorneys fees to the extent they prevailed at an
administrative hearing); Casey F. v. River Falls Sch. Dist., 243 F.3d 329 (7th Cir.
2001) (holding that parents who obtained a settlement agreement in mediation were
not prevailing parties under the statute).
30. See, e.g., Catamount Slate Prods. v. Sheldon, 845 A.2d 324 (Vt. 2003) (decid-
ing a quiet title action between neighbors and owners of a slate quarry); Branch v.
Rohr, No. B145738, 2001 WL 1446884 (Cal. Ct. App. Nov. 15, 2001) (addressing dis-
pute over a shared driveway).
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IDEA Miscellaneous
18 167 Commercial/
Tax/ Contract
Bankruptcy 373
23 Estate
34
Malpractice
41
Personal Injury
153
Family Law
Employment
264
153
E. Mediation Issues
31. See, e.g., Brisco-Wade v. Carnahan, 297 F.3d 781 (8th Cir. 2002) (finding
abuse of discretion by court ordering prevailing prison officials to pay mediation fees
of prisoner’s pro se § 1983 action).
32. See Jones v. Mabry, 205 F.3d 1346 (8th Cir. 1999) (addressing mediated set-
tlement agreement with prison inmates concerning grooming guidelines).
33. See United States v. Quorum Health Group, Inc., 171 F. Supp. 2d 1323 (M.D.
Fla. 2001) (assessing realtor’s share of proceeds after mediated settlement of false
claims act action).
34. Almost a third of the cases involved more than one issue (377 cases out of
1223). The most common combination of issues included: duty to mediate/condition
precedent (108); sanction/fees (65); mediation-arbitration/condition precedent (44);
duty to mediate/fees (44) and enforcement/confidentiality (35). Enforcement disputes
made up more than half of all the single-issue opinions (451 out of 847 opinions),
followed by fee disputes (117), miscellaneous disputes (75), confidentiality (68) and
duty to mediate (67).
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Enforcement of
Mediated Settlements 569
Fees 243
Confidentiality 152
Sanctions 117
Ethics/Malpractice 99
Arbitration-Mediation 88
Miscellaneous 100
II. CONFIDENTIALITY
A. Overview
35. Predictably, state opinions in California (26), Texas (16), Florida (10), and
Ohio (9) led the way.
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36. See, e.g., Estate of Smith v. Smith, No. A097581, 2003 WL 1558280 (Cal. Ct.
App. Mar. 26, 2003) (denying as moot a motion to strike portions of appendix which
contained mediation statements, but noting in a footnote that such statements are
confidential and inadmissible); Marple v. Homes, No. G027809, 2002 WL 657962, at
*7 (Cal. Ct. App. Apr. 22, 2002) (refusing to rule on claim that party was deprived of
due process and equal protection by the court’s failure to compel the mediator to tes-
tify on the question of whether parties intended to settle all or only a part of their
lawsuit because the record below failed to show that the trial court considered the
issue and the appellate court “does not issue advisory opinions”); Ashley Furniture
Indus., Inc. v. SanGiacomo N.A. Ltd., 187 F.3d 363 (4th Cir. 1999) (remanding en-
forcement and confidentiality issues to trial court which could better interpret and
apply local court rules).
37. See, e.g., Metz v. Metz, 61 P.3d 383 (Wyo. 2003) (finding no abuse of discre-
tion in trial judge’s failure to disqualify himself from presiding over divorce bench
trial after having first heard evidence concerning the parties’ earlier mediation and
denying wife’s motion to enforce an alleged mediated settlement); Cashin v. Cashin,
No. C4-02-902, 2003 WL 42269 (Minn. Ct. App. Jan. 7, 2003), appeal after remand,
No. C4-02-1984, 2003 WL 21266858, at *2 (Minn. Ct. App. June 3, 2003) (finding no
abuse of discretion in trial court refusal to remove a parenting-time expediter for a
“technical” violation of confidentiality—the expediter’s notification to court of con-
cerns that the parties’ children were “being emotionally abused by the punitive vagar-
ies of [a party’s] behavior”—because the disclosure was motivated by concern for the
parties’ children); Enterprise Leasing Co. v. Jones, 789 So. 2d 964 (Fla. 2001) (finding
trial judge not subject to automatic disqualification from presiding over personal in-
jury action to be tried by a jury, merely because judge is informed by plaintiff’s coun-
sel of confidential mediation information, including demand for settlement and
highest offer made by defendants).
38. See, e.g., Toon v. Wackenhut Corrs. Corp., 250 F.3d 950 (5th Cir. 2001) (af-
firming award of sanctions for bad faith filing of an unsealed motion to enforce a
mediated settlement in violation of the settlement’s confidentiality provisions); Moore
v. Kaufman, No. 13154357, 2003 WL 1930322 (Cal. Ct. App. Apr. 24, 2003), cert. de-
nied (July 9, 2003) (dismissing breach of contract claim based on attorney’s alleged
breach of a mediation confidentiality agreement because plaintiff was not a party to
the confidentiality agreement); SCJ, Inc. v. Davis, No. D038673, 2003 WL 123064 (Ca.
Ct. App. Jan. 15, 2003) (affirming dismissal of plaintiff’s complaint for breach of confi-
dentiality provision in mediated settlement where agreement did not expressly and
unambiguously limit disclosure).
39. See Part II.C.1, infra notes 61–81 and accompanying text. R
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40. These sixty-seven opinions include six cases where others, as well as the me-
diator, provided mediation evidence.
41. See, e.g., In re A.A., 560 S.E.2d 763 (Ga. Ct. App. 2002) (allowing mediator
testimony regarding why mediation did not occur, including explanation that party
did not want to pay for it); Cabellero v. Wikse, No. 27995, 2003 WL 21697914 (Idaho
July 23, 2003), opinion withdrawn, No. 27995, 2004 WL 858710 (Idaho Apr. 22, 2004)
(allowing mediator to testify that he would have terminated the session if he did not
believe lawyer had authority); Stull v. Port Auth. of N.Y. and N.J., 701 N.Y.S.2d 430
(N.Y. 2000) (allowing evidence that mediator had instructed counsel to come to the
table with full authority to enter into a settlement).
42. See, e.g., Lehrer v. Supkis, No. 01-00-00112-CV, 2002 WL 356394, *1 (Tex.
App. Feb. 28, 2002) (noting that mediation was highly contentious and “that the ap-
pellant, by making offensive statements, alienated the mediator”); Nick v. Morgan’s
Foods, Inc., 270 F.3d 590 (8th Cir. 2001) (allowing mediator testimony concerning
appellants’ minimal level of participation); Tatarian v. Aluf Plastics, No. 01-CV-5372
(WGB), 2002 WL 1065880 (D.N.J. May 13, 2002) (considering mediator correspon-
dence confirming that a party subverted the mediation process by repeatedly making,
and then withdrawing, settlement offers).
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43. See, e.g., Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) (consider-
ing mediator testimony that parties engaged in vigorously contested settlement nego-
tiations and that the monetary benefit to the class compares favorably to the likely
outcome of litigation); Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091 (D.N.M.
1999) (considering mediator praise for the settlement); Green v. Am. Express Co., 200
F.R.D. 211 (S.D.N.Y. 2001) (considering mediator testimony affirming arms-length
negotiations and parties’ zealous advocacy).
44. See, e.g., In re Marriage of Slayton, 103 Cal. Rptr. 2d 545 (Cal. Ct. App. 2001)
(considering mediator testimony in custody dispute that mother admitted she would
leave child home alone); Kaye v. Kaye, No. FA010181871S, 2003 WL 22133976 (Conn.
Super. Ct. Aug. 29, 2003) (considering mediator testimony regarding whether defen-
dant made statements impeaching his own financial statement).
45. See, e.g., Goad v. Ervin, No. E033593, 2003 WL 22753608 (Cal. Ct. App. Nov.
21, 2003) (considering mediator testimony that party was angry when he checked in
at beginning of mediation); In re S.H., 987 P.2d 735 (Alaska 1999) (allowing mediator
testimony that party was acting irrationally); Jarrow Formulas, Inc. v. LaMarche,
118 Cal. Rptr. 2d 388 (Cal. Ct. App. 2002), aff’d, 74 P.3d 737 (Cal. 2003) (allowing
evidence that a party was screaming and yelling and attempted to leap over the table
to physically attack the other party, forcing the mediator to intervene); V.J.L. v.
R.E.D., 39 P.3d 1110 (Wyo. 2002) (permitting mediator to file written report about
party’s behavior in response to pro se party motion alleging irregularities in the medi-
ation process).
46. See, e.g., Coulter v. Carewell Corp. of Okla., 21 P.3d 1078 (Okla. Civ. App.
2001) (considering mediator testimony about whether release would be forthcoming);
Genesis Props. v. Crown Life Ins. Co., No. 98-2370, 2000 WL 178403 (6th Cir. Feb. 8,
2000) (considering mediator testimony that attorney fees were never discussed); Lam-
berts v. Lillig, 670 N.W.2d 129 (Iowa 2003) (considering mediator testimony regard-
ing whether fundamental constitutional rights and issues were discussed during
mediation of grandparent visitation dispute).
47. See, e.g., Diebold v. Nelson Oyen & Torvik, PLLP, No. C7-02-781, 2003 WL
282430 (Minn. Ct. App. Feb. 11, 2003) (noting evidence that mediator stated insur-
ance policy cash value to be approximately $64,000); Kendrick v. Barker, 15 P.3d 734
(Wyo. 2001) (considering letter from mediator stating time limitation on pending of-
fer); Brinkerhoff v. Campbell, 994 P.2d 911 (Wash. Ct. App. 2000) (including testi-
mony that mediator mistakenly believed that insurance policy limits were $100,000
and conveyed the erroneous information to his client parties).
48. See, e.g., Streber v. Hunter, 221 F.3d 701 (5th Cir. 2000), reh’g and suggestion
for reh’g en banc denied, 233 F.3d 576 (5th Cir. 2000) (including testimony that medi-
ator, a former judge, told parties they should not settle because they would lose tax
dispute at trial); Brehm Cmtys. v. Super. Ct., 105 Cal. Rptr. 2d 918 (Cal. Ct. App.
2001) (including party declaration that mediator, a retired judge, determined that
settlement was fair); Gentry v. Wilson, 628 N.W.2d 439 (Wis. Ct. App. 2001) (noting
evidence that physician member of malpractice mediation panel advised participants
that there may have been negligence).
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• mediator’s proposals;49
• mediator’s understanding of settlement terms;50
• parties’ understanding of settlement terms;51 and
• coercion and duress allegations.52
In line with the obligation to decide only matters presented for
decision, and consistent with judicial officers’ inclination to hear all
available evidence—especially when offered by an arguably “unbi-
ased” witness53—courts are in near uniformity in their silence about
the open door for mediator evidence. One notable exception is VJL v.
49. See, e.g., Emerson v. Comm’r, 85 T.C.M. (CCH) 1044 (2003) (noting mediator
suggestion to amend complaint by adding personal injury claim as a way to avoid
taxation); Lamothe v. On Beach Surf Shop, Inc., No. 14024522, 2003 WL 21791592, at
*1 (Cal. Ct. App. Aug. 5, 2003) (noting mediator proposal to “split the difference” and
settle case for $87,500).
50. See, e.g., Ex parte Littlepage, 796 So. 2d 298 (Ala. 2001), on remand, Lit-
tlepage v. Littlepage, 796 So. 2d 303 (Ala. Civ. App. 2001) (considering mediator testi-
mony about parties’ intent on payment of credit card debt); Persada v. Persada, No.
E2002-00397-COA-R3-CV, 2002 WL 31640564 (Tenn. Ct. App. Nov. 22, 2002) (consid-
ering mediator testimony that $60,000 cash payment was in exchange for interest in
marital residence); Douthwright v. Northeast Corridor Founds., 805 A.2d 157 (Conn.
App. Ct. 2002) (considering mediator testimony that settlement was not contingent
upon execution of a contemplated arbitration agreement).
51. See, e.g., Herrera v. Herrera, 974 P.2d 675 (N.M. Ct. App. 1999) (considering
mediator testimony concerning husband’s understanding of a divorce decree, showing
fact that husband made no objection to settlement terms during the mediation, and
that the final marital termination agreement reflected the terms negotiated in media-
tion); Gelfand v. Gabriel, No. B152557, 2002 WL 1397037, at *3 (Cal. Ct. App. June
27, 2002) (noting testimony that the mediator in the presence of all parties and coun-
sel “explained very carefully the terms of the settlement, asked each of the parties
whether they agreed to the terms and conditions, asked each of the attorneys present
whether they joined in the parties’ acceptance, and was personally present when the
stipulation was reduced to writing”).
52. See, e.g., Gallagher v. Gallagher, No. 125000, 1999 WL 795683 (Va. Cir. Ct.
Aug. 18, 1999), aff’d in part, rev’d in part, 546 S.E.2d 222 (Va. Ct. App. 2001) (conclud-
ing that the assertion that party was “browbeaten” into agreement was countered by
evidence that she informed the mediator that she accepted the agreement’s terms);
Patsky v. Suprenant Cable Corp., No. 972527A, 2001 WL 1029642, at *2 (Mass.
Super. Ct. Aug. 2, 2001) (noting client’s testimony that he felt pressured when media-
tor “said she had another commitment at 5 p.m. and insisted on the settlement deci-
sion”); Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1096 (Fla. Dist. Ct. App. 2001)
(noting that mediator’s testimony on coercion allegations “was presented prior to that
of the wife, and, consequently, her allegations of potential misconduct were not di-
rectly confronted”).
53. See Ramirez v. De Coster, 142 F. Supp. 2d 104, 113 (D. Me. 2001) (crediting
Senator Warren Rudman’s testimony in dispute about enforcement of mediated set-
tlement and finding him as mediator “to be the most neutral and dispassionate ob-
server of what was said and done”).
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Red and DDD,54 where the Wyoming Supreme Court summarily af-
firmed an adoption against challenge by a pro se biological mother
who, among other things, alleged irregularities in the mediation pro-
cess that preceded termination of her visitation rights. The mediator,
on his initiative, filed a report in response to the mother’s motions.
The court made no ruling on the propriety of the report, but was com-
pelled to question the wisdom of its production. According to the
court,
[T]he function of a mediator is to be a conciliator, to bring par-
ties together in an effort to reconcile their differences. Interject-
ing oneself into court proceedings after the fact of the mediation
as basically a witness to discredit the truthfulness and charac-
ter of a party to the mediation would not seem to comport with
the functions of a mediator.55
54. 39 P.3d 1110 (Wyo. 2002). See also In re R.H. Macy & Co., Inc., 236 B.R. 583,
587 n.5 (Bankr. S.D.N.Y.1999), aff’d, 283 B.R. 140 (Bankr. S.D.N.Y. 2002) (striking all
post-mediation briefing, opining that it was “inimical to the process of mediation and
an unwarranted use of that process as a further discovery tool to raise new argu-
ments”); Lyons v. Booker, 982 P.2d 1142 (Utah Ct. App. 1999) (remanding a dispute
about an appellate mediation settlement but advising the parties that mediation evi-
dence would be limited).
55. VJL v. Red and DDD, 39 P.3d 1110, 1113 n.3. (Wyo. 2002).
56. See, e.g., Boyd v. Boyd, 67 S.W.3d 398 (Tex. App. 2002) (citing evidence re-
garding failure at mediation to acknowledge receipt of a substantial employment bo-
nus); Strand Hunt Constr., Inc. v. Kaplan McLaughlin Diaz, No. 41844-1-I, 1999 WL
760250 (Wash. Ct. App. Sept. 27, 1999) (citing evidence that parties did not specifi-
cally discuss whether an agreement would contain a release of latent defects); Zurich
Reinsurance (U.K.) Ltd. v. Can. Pac. Ltd., 613 N.W.2d 760 (Minn. Ct. App. 2000) (cit-
ing evidence that there was no discussion of punitive damages).
57. See, e.g., Behling v. Russell, 293 F. Supp. 2d 1178 (D. Mont. 2003) (citing
evidence regarding who did the negotiating in mediation); Reliance Nat’l Ins. Co. v. B.
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Von Paris & Sons, Inc., 153 F. Supp. 2d 808 (D. Md. 2001) (evidence regarding failure
of party to have representative with settlement authority); Uy, M.D. v. Bronx Mun.
Hosp. Ctr., 182 F.3d 152 (2d Cir. 1999) (citing evidence regarding how long defen-
dant’s attorney was in the mediation room, how long she was gone, and how long after
absence before she refused to continue to participate).
58. See, e.g., Griffin v. Wallace, 581 S.E.2d 375 (Ga. Ct. App. 2003) (listing initial
settlement offer, initial demand, and counters, in dispute about enforcement of al-
leged oral agreement); Gen. Agents Ins. Co. of Am., Inc. v. Home Ins. Co. of Ill., 21
S.W.3d 419 (Tex. App. 2000) (detailing settlement authority, what lawyers believed
reasonable offers might be, and plaintiff demands in insurance subrogation case);
Turner v. Young, 205 F.R.D. 592 (D. Kan. 2002) (listing defense pre-mediation settle-
ment authority, plaintiff’s last mediation demand, and defendant’s final offer in opin-
ion denying sanctions for alleged failure to send a representative with settlement
authority to private mediation). For a detailed discussion of the intersection between
confidentiality and sanctions see, Part VI.B, infra notes 390–402 and accompanying R
text.
59. See, e.g., Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003) (noting that plaintiff
and his attorney mistakenly believed insurance policy limit was $100,000, when it
was in fact $1 million); Van Pelt v. Van Pelt, No. 04-99-00430-CV, 2000 WL 682640
(Tex. App. May 17, 2000) (noting party’s assertion that settlement agreement was
merely an outline and should not have been basis for court-issued consent judgment);
Inglish v. Machen, No. 01-98-01267-CV, 2001 WL 832356 (Tex. App. July 19, 2001)
(offering dramatically different interpretations of the parties’ intent with respect to
attorney fee provision in a mediated settlement).
60. See, e.g., Guthrie v. Guthrie, 577 S.E.2d 832 (Ga. Ct. App. 2003), aff’d, 594
S.E.2d 356 (Ga. 2004) (considering evidence that party had suffered anxiety attacks
and consumed at least four doses of Valium during course of the mediation); Jones v.
Wells Fargo Bank, No. A097707, 2002 WL 31630888, at *2 (Cal. Ct. App. Nov. 22,
2002), reh’g denied (Dec. 13, 2002) (considering evidence that client felt under ex-
treme duress and that “her attorney’s use of prescription medication made him
‘slower’ and not capable of acting in her best interest”); Lerer v. Lerer, No. 05-99-00
474 CV, 2000 WL 567020 (Tex. App. May 3, 2000) (admitting evidence that party had
a hazy memory and was completely debilitated by pneumonia at the mediation).
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1. Confidentiality Upheld
66. See, e.g., Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260 (Tex. App. 2002) (rely-
ing on the “cloak of confidentiality” governing mediation proceedings to exclude evi-
dence that homeowner rejected settlement offers and made allegedly unreasonable
demands); Vick v. Waits, No. 05-00-01122-CV, 2002 WL 1163842, at *3–4 (Tex. App.
June 4, 2002) (enforcing privilege rules to exclude evidence of fraud).
67. See, e.g., In re Bidwell, 21 P.3d 161, 296 (Or. Ct. App. 2001) (concluding that
letters exchanged between the parties’ respective counsel while appellate mediation
was pending were “confidential mediation communications” and may not subse-
quently be offered in evidence to support a finding that a party was objectively unrea-
sonable during the proceedings or in pursuing settlement); In re Marriage of Reich, 32
P.3d 904 (Or. Ct. App. 2001) (refusing to admit evidence of mediation communications
in action to enforce a settlement made long after the failure of the parties’ mediation).
68. See, e.g., Vernon v. Acton, 732 N.E.2d 805 (Ind. 2000) (reversing trial court
order to enforce pre-trial mediated oral settlement agreement, and concluding that
testimony regarding the alleged oral settlement agreement was confidential and priv-
ileged and not admissible pursuant to the ADR rules incorporated in the parties’ writ-
ten agreement to mediate); R.R. Donnelley & Sons Co. v. N. Tex. Steel Co., Inc., 752
N.E.2d 112 (Ind. Ct. App. 2001) (holding that trial court committed error by admitting
a videotape prepared specifically for mediation).
69. 159 F. Supp. 2d 242 (W.D.N.C. 2001). See also Sheldone v. Pa. Tpk. Comm’n,
104 F. Supp. 2d 511 (W.D. Pa. 2000) (adopting and applying a federal mediation privi-
lege to preclude disclosure of written and oral communications made in connection
with, or during, a mediation conducted before a neutral mediator).
70. 277 B.R. 415 (Bankr. N.D. Ga. 2002). See also In re Anonymous, 283 F.3d 627
(4th Cir. 2002) (permitting limited mediation disclosures by an attorney and client
embroiled in a fee dispute since non-disclosure would cause manifest injustice, but
foreclosed testimony by the mediator, to whom a stricter confidentiality standard
applied).
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71. See, e.g., Chodos v. Gorin, No. B163447, 2003 WL 22464054 (Cal. Ct. App.
Oct. 31, 2003) (finding that failure to object to mediation evidence results in waiver of
privilege and going on to strike denial of malicious prosecution claim, in part relying
on statement made in mediation about reasons lawsuit was brought); Kalof v. Kalof,
840 So. 2d 365, 367 (Fla. Dist. Ct. App. 2003) (ruling that spouse waived the media-
tion privilege by moving to vacate based on duress and non-disclosure); Holmes v.
Concord Homes, Ltd., 115 S.W.3d 310, 318 (Tex. App. 2003) (finding no error in intro-
duction of considerable evidence about mediation and settlement offers at contract
dispute trial, where party failed to properly voice objections to introduction of specific
testimony and trial court informed the jury “at some length about the mediation pro-
cess and the confidentiality involved there, and then instructed counsel to avoid ask-
ing questions that invaded the mediation process”).
72. See, e.g., Fenske v. Fenske, No. C4-99-2007, 2000 WL 622589, at *3 (Minn.
Ct. App. May 16, 2000) (finding no error in trial court’s use of a mediator as an “expert
witness” under MINN. R. EVID. 706 by incorporating the mediator’s recommendation
as an order of the court, where court had ordered parties in harassment case to meet
with a mediator “within 10 days to come to an agreement for contact between the
parties for exchanging information about the children” and further ordered that ab-
sent agreement the mediator “shall offer his recommendations for contact . . . to the
Court”); Howard v. Ramsey, No. C-000503, 2001 WL 228015 (Ohio Ct. App. Mar. 9,
2001) (finding no violation of local mediation confidentiality rules where parties had
consented to testimony from a third party’s attorney regarding nature of the mediated
settlement). Cf. In re T.T., 39 S.W.3d 355 (Tex. App. 2001) (ruling that the parties’
consent to have mediator’s report submitted to the trial court for approval did not
constitute waiver of their right to exclude the report if offered as evidence against
them).
73. See, e.g., U.S. Fid. & Guar. Co. v. Dick Corp./Barton Malow, 215 F.R.D. 503
(W.D. Pa. 2003) (affirming special master decision to permit discovery of a settlement
from an earlier case involving some but not all parties upon finding that the settle-
ment was not protected by state mediation privilege, where a single mediation session
did not result in an agreement, a second session was discussed but never scheduled,
and the parties had only limited follow-up communication with the mediator in which
they apprised him of the ongoing settlement negotiations); In re Home Health Corp. of
Am., 268 B.R. 74 (Bankr. D. Del. 2001) (refusing to exclude memorandum prepared by
debtor for ADR proceeding where the proceeding was more like an arbitration than a
mediation); Kanach v. Rogers, 742 N.E.2d 987 (Ind. Ct. App. 2001) (refusing to seal
report prepared by a neutral custody-evaluator, noting that mediation confidentiality
rules are not implicated simply because parties choose to use the word mediation to
describe their ADR process).
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74. See, e.g., Anderson v. Anderson, 514 S.E.2d 369 (Va. Ct. App. 1999) (holding
that exclusion of witness testimony—where evidence established that a licensed
clinical psychologist acted as therapist, rather than a mediator, in parties’ child cus-
tody dispute—constituted reversible error); Cashin v. Cashin, No. C1-00-111, 2000
WL 1528668 (Minn. Ct. App. Oct 17, 2000) (permitting witness testimony where party
failed to cite evidence indicating that the witness was a mediator at any stage of the
proceeding); Harbottle v. Harbottle, No. 20897, 2002 WL 31060237 (Ohio Ct. App.
Sept. 18, 2002) (refusing to exclude testimony where proffering of evidence revealed
witness was a counselor, not a mediator).
75. See, e.g., Riner v. Newbraugh, 563 S.E.2d 802 (W. Va. 2002) (criticizing the
trial court’s questioning of the mediator regarding details of a mediated settlement,
but refusing to find violation of confidentiality rules where the mediator did not dis-
close any confidential information); Sonii v. Gen. Elec., No. 95 C-5370, 2001 WL
1422136 (N.D. Ill. Sept. 21, 2001) (finding no disclosure of confidential communica-
tions, where party brief included references to opposing counsel’s refusal to engage in
rational discussions and overall futility of settlement efforts but included no specific
statements); Am. Constr. & Envtl. Servs., Inc. v. Mosleh, No. A093541, 2002 WL
31480282 (Cal. Ct. App. Nov. 7, 2002) (finding no violation of confidentiality where
witness provided factual information about cost of repair even though he had first
completed the cost calculations in a mediation).
76. See, e.g., Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003) (declining to infer
impropriety where the record did not establish definitively what information, if any,
was imparted to the trial judge by a settlement judge conducting mediation); In re
Miriah W., No. L-02-1182, 2002 WL 31630758 (Ohio Ct. App. Nov. 22, 2002) (rejecting
assertion that it was “highly probable” that the judge read a guardian’s report con-
taining protected confidential statements made by the father in mediation, where re-
cord is devoid of evidence that the judge either reviewed the report or based any
decisions on the objectionable material).
77. See, e.g., Smith v. Genstar Capital, LLC, No. C-01-3936 MMC, 2001 WL
1658315 (N.D. Cal. Dec. 20, 2001) (refusing to apply state evidentiary rules in federal
court proceedings and admitting into evidence under FED. R. EVID. 408, mediation
statements by plaintiffs’ counsel regarding the nature of plaintiffs’ damages claims,
where such information was introduced to show state of mind and lack of notice,
rather than liability or invalidity of a claim); In re Daley, 29 S.W.3d 915 (Tex. App.
2000) (permitting deposition of a non-party participant in mediation on the narrow
issue of whether he left the mediation session early and without permission of the
mediator; finding such limited testimony outside the scope of statutory mediation con-
fidentiality because it was not a communication relating to the subject matter of the
mediation).
78. See, e.g., In re A.C., No. 99-0955, 1999 WL 1255793 (Iowa Ct. App. Dec. 27,
1999) (finding harmless error where district court admitted into evidence testimony of
what mother said during a mediation meeting); Burgryn v. City of Bristol, 774 A.2d
1042 (Conn. App. Ct. 2001) (concluding that testimony concerning prior mediation
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D. Context of Confidentiality
used to determine fair market value of disputed property was immaterial to court’s
decision on ultimate litigated issues).
79. 68 F. Supp. 2d 1110 (N.D. Cal. 1999). Olam was decided before the California
Supreme Court decision in Foxgate Homeowners’ Ass’n., Inc. v. Bramalea California,
Inc., 25 P.2d 1117 (Cal. 2001).
80. 723 N.E.2d 924 (Ind. Ct. App. 2000).
81. 72 S.W.3d 779 (Tex. App. 2002).
82. Glover v. Torrence, 723 N.E.2d 924, 932 n.2 (Ind. Ct. App. 2000).
83. Avary v. Bank of America, N.A., 72 S.W.3d 779, 800–03 (Tex. App. 2002).
84. Id. at 803.
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85. See, e.g., D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (noting
that “[a] court reviewing a proposed settlement must pay close attention to the negoti-
ating process, to ensure that the settlement resulted from ‘arm’s-length negotiations
and that plaintiffs’ counsel have possessed the experience and ability, and have en-
gaged in the discovery, necessary to effective representation of the class’s interests.”)
(quoting Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982)).
86. Mediators offered testimony in two of the third-party impact cases; parties
offered evidence in fourteen of the third-party impact cases.
87. In re Marriage of Thompson, No. 02-0387, 2003 WL 1037859 (Iowa Ct. App.
Mar. 12, 2003) (denying without comment that part of father’s appeal of custody modi-
fication based on mother’s disclosure of privileged mediation communications); In re
T.T., 39 S.W.3d 355 (Tex. App. 2001) (ruling that parties’ consent to have mediator’s
report submitted to the trial court for approval did not constitute waiver of their right
to exclude the report if offered as evidence against them).
88. See, e.g., Van Horn v. Van Horn, No. HO24181, 2003 WL 21802273 (Cal. Ct.
App. Aug. 6, 2003) (precluding deposition of a mediator to determine whether an
agreement was entered into by mistake and was unfair); Eisendrath v. Super. Ct., 134
Cal. Rptr. 2d 716, 725 (Cal. Ct. App. 2003) (enforcing confidentiality rules to preclude
evidence which party sought to use to correct a judgment to conform it to the terms
actually agreed upon).
89. See, e.g., Vick v. Waits, No. 05-00-01122-CV, 2002 WL 1163842, *3–4 (Tex.
App. June 4, 2002) (precluding mediation communications offered on issue of fraud).
90. See generally, Ellen E. Deason, Enforcing Mediated Settlement Agreements:
Contract Law Collides with Confidentiality, 35 U.C. DAVIS L. REV. 33 (2001) (discuss-
ing how the application of traditional contract law conflicts with the concern for medi-
ation confidentiality).
91. See, e.g., MINN. GEN. R. PRAC. 114.08(a) (West 2006) (protecting from disclo-
sure “any fact concerning the proceeding” absent consent of all parties, providing no
exceptions for asserting contractual defenses). See generally Deason, supra note 90, R
at 45–50.
92. The Uniform Mediation Act provides an exception to the parties’ mediation
privileges when traditional contract defenses are asserted. UNIF. MEDIATION ACT
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§ 6(b)(2) (2003). The mediation communication is excepted only after the court con-
cludes that the evidence is not otherwise available, there is need for the evidence, and
that the need substantially outweighs the interest of confidentiality. It also does not
permit the mediator to provide the evidence giving rise to the contractual defense.
93. See DR Lakes, Inc. v. Brandsmart U.S.A., 819 So. 2d 971, 973–74 (Fla. Dist.
Ct. App. 2002).
94. 813 So. 2d 891, 894 (Ala. Civ. App. 2001). See also Kalof v. Kalof, 840 So. 2d
365, 367 (Fla. Dist. Ct. App. 2003) (ruling that spouse waived the mediation privilege
by moving to vacate based on duress and non-disclosure); Glover v. Torrence, 723
N.E.2d 924, 932 n.2 (Ind. Ct. App. 2000) (ruling that public policy ensuring that chil-
dren get adequate child support justifies intrusion into mediation communications to
determine if father filed a fraudulent child support worksheet).
95. UNIF. MEDIATION ACT § 6(a)(5) (2003).
96. Glover, 723 N.E.2d at 931–32.
97. Cooper v. Austin, 750 So. 2d 711, 711 (Fla. Dist. Ct. App. 2000).
98. Brown v. Brown, No. 03-01-00520-CV, 2002 WL 1343222 (Tex. App. June 21,
2002) (considering prior drafts of settlement agreement and exhibits); Few v. Ham-
mack Enters., Inc., 511 S.E.2d 665, 667–68 (N.C. Ct. App. 1999) (allowing evidence of
prior draft of settlement agreement and correspondence from counsel and the
mediator).
99. Few, 511 S.E.2d at 667–68.
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100. Gelfand v. Gabriel, No. SCO61373, 2002 WL 1397037, at *3 (Cal. Ct. App.
June 27, 2002) (allowing testimony that the mediator explained the terms of the set-
tlement and questioned all present whether they agreed); Chitkara v. N.Y. Tel. Co.,
45 F.App’x 53, 54 (2d Cir. 2002) (admitting statements of mediator regarding case
valuation and impact of unrelated bankruptcy proceedings); In re Patterson, 969 P.2d
1106, 1110 (Wash. Ct. App. 1999) (admitting evidence that mediator claimed a failure
to settle would ruin his settlement record). See also Lehrer v. Supkis, No. 01-00-
00112-CV, 2002 WL 356394, at *1 (Tex. App. Feb. 28, 2002) (characterizing mediator
as alienated by plaintiff).
101. 994 P.2d 911, 915 (Wash. Ct. App. 2000).
102. Matics v. Fodor, Nos. 209671 & 210440, 1999 WL 33451700, at *3 (Mich. Ct.
App. Apr. 2, 1999) (considering the deposition of a person referred to as an “informal
mediator” describing his recollection of the mediation); Advantage Props., Inc. v. Com-
merce Bank, N.A., No. 00-3014, 2000 WL 1694071, at *1 (10th Cir. Nov. 13, 2000)
(noting, in evaluating a challenge to the enforcement of a mediation agreement, that
the trial judge heard testimony from those present at the mediation, including the
mediator); Few, 511 S.E.2d at 670 (remanding the case and specifically ruling that
the “mediator is both competent and compellable to testify or produce evidence” on the
issues of fraud, mistake, and whether an agreement was reached).
103. Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001); Ad-
vantage Props., Inc., 2000 WL 1694071; Genesis Props. v. Crown Life Ins. Co., No. 98-
2370, 2000 WL 178403 (6th Cir. Feb. 8, 2000); Olam v. Cong. Mortgage Co., 68 F.
Supp. 2d 1110 (N.D. Cal. 1999).
104. Kalof v. Kalof, 840 So. 2d 365 (Fla. Dist. Ct. App. 2003); Goodman v. Hokom,
No. B145426, 2001 WL 1531187 (Cal. Ct. App. Dec. 4, 2001); F.D.I.C. v. White, 76 F.
Supp. 2d 736 (N.D. Tex. 1999); Olam, 68 F. Supp. 2d 1110.
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105. See Dryden v. Burlington N. Santa Fe R.R., No. C00-4061 DEO, 2001 WL
34008725, at *2 (N.D. Iowa Nov. 29, 2001) (considering magistrate/mediator’s testi-
mony that he has never told a party that they have thirty days in which to change
their mind about a settlement agreement).
106. See id.
107. If the jurisdiction adopts the Uniform Mediation Act, mediator testimony
may remain privileged even if the parties assert that the statement conveyed by the
mediator or document drafted by the mediator serves as the basis for a claim of mu-
tual mistake. UNIF. MEDIATION ACT § 6(c) (2003).
108. 50 F. Supp. 2d 18 (D.D.C. 1999).
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court willingness to ignore mediation confidentiality when evaluating class action set-
tlement issues.
117. In fifteen opinions, the court enforced part of the agreement.
118. See, e.g., Ricks v. Abbott Labs., 65 F.App’x 899, 899 (4th Cir. 2003) (refusing
to affirm a trial judge’s ruling enforcing an oral agreement reached during an unre-
corded mediation session and remanding for an evidentiary hearing).
119. See Comer v. Comer, 295 F. Supp. 2d 201, 215 (D. Mass. 2003) (ruling that
the court lacked personal jurisdiction); Grand Union Supermarkets of V.I., Inc. v.
H.E. Lockhart Mgmt., Inc., 171 F. Supp. 2d 507, 514–15 (D.V.I. 2001), rev’d, 316 F.3d
408 (3d Cir. 2003) (dismissing because of lack of subject matter jurisdiction).
120. See, e.g., Richard Delgado, Fairness and Formality: Minimizing the Risk of
Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359, 1360–61 (1985);
Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J.
1545, 1548 (1991); Gary LaFree & Christine Rack, The Effects of Participants’ Ethnic-
ity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases, 30
LAW & SOC’Y REV. 767, 768–69 (1996); Carrie Menkel-Meadow, Do the “Haves” Come
Out Ahead in Alternative Judicial Systems?: Repeat Players in ADR, 15 OHIO ST. J. ON
DISP. RESOL. 19, 20 (1999). See generally Hensler, supra note 2; Welsh, supra note 2; R
James R. Coben, Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator
Values Beyond Self Determination and Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65
(2004).
121. See, e.g., Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on
a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885, 886 (1998)
(reviewing published research on party satisfaction in mediation); Barbara McAdoo &
Nancy A. Welsh, Does ADR Really Have a Place on the Lawyer’s Philosophical Map?,
18 HAMLINE J. PUB. L. & POL’Y 376, 392 (1997) (“[R]esearch consistently shows such
increased satisfaction.”).
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that courts are not carefully scrutinizing the fairness of the media-
tion process out of self-interest—mediation eliminates numerous
cases from the court dockets.122 It is also possible, as discussed in
Part II, that confidentiality rules in some jurisdictions may shield po-
tentially unfair mediation processes from judicial review or that the
application of traditional contract law does not adequately assure fair
mediation processes.
Although the frequency with which mediation agreements are
enforced suggests that mediation processes are generally fair, the in-
creasing volume of enforcement-related litigation may suggest other-
wise. The numbers are small but the trend is ominous. In 1999,
there were ten enforcement opinions in which the mediation agree-
ment was not enforced; in 2003, there were thirty-one.
There are too few reported opinions to draw conclusions, but an
analysis of the 2003 opinions leads to some interesting observations.
Six of the thirty-one cases refusing to enforce an agreement were
from California and four were from Florida. The California cases il-
lustrate the difficulty of merging the private mediation process with
the public adversarial system. Each of the cases is published on
Westlaw in what the court deems to be an “unpublished” opinion.
Hence, the California courts are using public judicial powers to re-
solve these private disputes in a private, ad hoc manner.123 Accord-
ing to California Court Rules, courts and parties cannot cite or rely
on unpublished opinions. Looking only at the 861 opinions by appel-
late courts in our database, over half (52%) of the opinions were un-
published. Much of the jurisprudence relating to the mediation
process remains ad hoc and private. The five Florida opinions in
124. Demorizi v. Demorizi, 851 So. 2d 243, 245–46 (Fla. Dist. Ct. App. 2003) (hold-
ing that equitable fairness required that wife recover an allocated share of tax deposit
despite two mediation agreements that did not include it); Dows v. Nike, Inc., 846 So.
2d 595, 602 (Fla. Dist. Ct. App. 2003) (ruling that a handwritten mediation document
was an agreement to agree and not an enforceable settlement agreement); L.F. v.
Dep’t of Children and Family Servs., 837 So. 2d 1098, 1101 (Fla. Dist. Ct. App. 2003)
(treating a mediation agreement reached with the Department of Children and Fam-
ily Services as a recommendation to the court); Still v. Still, 835 So. 2d 376 (Fla. Dist.
Ct. App. 2003) (setting aside an agreement obtained by fraudulent misrepresenta-
tions); S. Internet Sys., Inc. ex rel. Menotte, v. Pritula, 856 So. 2d 1125, 1128 (Fla.
Dist. Ct. App. 2003) (refusing to enforce a settlement agreement because of failure of
the condition precedent—board approval).
125. McKown v. U.S. Dep’t of Agric., 276 F. Supp. 2d 1201 (D.N.M. 2003).
126. Id. at 1210.
127. 256 F. Supp. 2d 768 (W.D. Tenn. 2003). See also In re BankAmerica Corp.
Sec. Litig., 210 F.R.D. 694, 713–14 (E.D. Mo. 2002) (refusing to approve proposed set-
tlement agreement in securities fraud class action).
128. See, e.g., Gray v. State Farm Mut. Auto. Ins. Co., 734 So. 2d 1102, 1103 (Fla.
Dist. Ct. App. 1999) (reversing and remanding summary judgment because of dis-
puted fact issue of whether the carrier waived or was prejudiced by lack of notifica-
tion); Lavigne v. Green, 23 P.3d 515, 520 (Wash. Ct. App. 2001) (reversing summary
judgment because of material issue of fact in dispute about whether the mediated
settlement agreement was disputed, and whether the parties reached an enforceable
agreement); Brinkerhoff v. Campbell, 994 P.2d 911, 916 (Wash. Ct. App. 2000) (re-
versing grant of summary judgment because of disputed factual issue on alleged mis-
representation leading to settlement agreement).
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2. Specific Defenses
a. No Meeting of the Minds; Agreement to Agree
In opinions where parties were unwilling to comply with the
terms of a purported mediation agreement, they frequently raised is-
sues involving some variation of the claim that there was no meeting
of the minds (80) or no agreement (37). This defense implicates the
core values of mediation theory, that mediation is a process based on
self-determination. Any agreement that is enforced must be the
agreement of the parties and not an agreement imposed on them.
129. 187 F.3d 363 (4th Cir. 1999). See also Hanson v. Hanson, No. C2-98-1427,
1999 WL 31174, at *2 (Minn. Ct. App. Jan. 26, 1999) (remanding a case involving a
mediated marital property settlement incorporated in a judgment, in part because the
trial judge used the wrong legal standard in determining whether there was fraud); In
re T.D., 28 P.3d 1163, 1167–68 (Okla. Civ. App. 2001) (remanding an order terminat-
ing parental rights pursuant to a mediated settlement agreement to determine
whether the mediation process provided sufficient due process protection).
130. Ashley Furniture Indus. Inc. v. SanGiacomo N.A., Ltd., 187 F.3d 363, 377
(4th Cir. 1999).
131. Id. at 378.
132. Id. at 377–78.
133. See, e.g., Georgos v. Jackson, 762 N.E.2d 202, 203 (Ind. Ct. App. 2002) (as-
serting lack of assent, no meeting of the minds, mistake, fraud, lack of consideration,
and unconscionabililty); Adams v. Adams, 11 P.3d 220, 221 (Okla. Civ. App. 2000)
(alleging defenses of fraud, duress, undue influence, or mistake).
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Although not explicit from the opinions, some of these cases dis-
puting whether an agreement was reached appear to represent situa-
tions where parties simply changed their minds once free from the
immediate pressures of the mediation.134 Mediation theory is ambig-
uous about how to treat an agreement that had actual but fleeting
assent. While ADR scholars might disagree about whether the goal
of self-determination is fulfilled by enforcing a settlement to which a
party agrees during mediation but immediately rejects,135 traditional
contract law is more certain and less forgiving. Absent some well-
established and narrowly drawn exception,136 courts routinely en-
force parties’ settlements. Traditional contract law centers on objec-
tive manifestation of assent—what the parties said. Mediation’s core
value of self-determination is concerned less with what was said and
more with what the parties actually wanted or believed.137
In a situation where a party manifests agreement at the media-
tion but, free from the pressure of the mediation session, has a
change of heart, the party has no recognized contract defense to an
enforcement claim.
While some cases reflect a change of mind, others present true
misunderstandings. These cases raise difficult factual issues about
whether an agreement was actually reached or whether there was
agreement on some, but not all, material terms. Again, these issues
are resolved based on common law rules of contract formation, absent
134. See, e.g., Esser v. Esser, 586 S.E.2d 627, 628 (Ga. 2003) (allowing spouse to
contest child support award based on mediated agreement after she changed counsel);
Govia v. Burnett, No. Civ. 685/1998, 2003 WL 21104925, at *3–5 (V.I. May 5, 2003)
(enforcing settlement despite claim that party, who was represented by counsel, was
unaware of its terms when she signed it stating that strong public policy favoring
enforcing settlements would be frustrated by voiding a settlement merely because a
party becomes dissatisfied with the terms); Vernon v. Acton, 732 N.E.2d 805, 810
(Ind. 2000) (allowing party to refuse to abide by oral agreement entered into in
mediation).
135. See generally Welsh, supra note 2. R
136. While contract principles might lead to enforcement of the agreement, with-
drawn consent might preclude a court from entering a consent decree. See Envtl.
Abatement, Inc. v Astrum R. E. Corp., 27 S.W.3d 530, 541–42 (Tenn. Ct. App. 2000)
(ruling that because the agreement was not in writing or recited in open court, the
trial judge could not enter a consent decree if a party withdrew agreement prior to the
order).
137. See Kimberlee K. Kovach, New Wine Requires New Wineskins: Transforming
Lawyer Ethics for Effective Representation in a Non-Adversarial Approach to Problem
Solving Mediation, 28 FORDHAM URB. L.J. 935, 942–43 (2001) (“The goals of mediation
are quite different than the goals of the litigation system.”); Thompson, supra note
122, at 556 (“[W]hile the focus under contract law is on what the parties said, the R
focus in a mediation should be on what the parties want.”).
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138. See generally Deason, supra note 90; Robinson, supra note 8; see also Thomp- R
son, supra note 122, at 541–47. R
139. See, e.g., Catamount Slate Prods., Inc. v. Sheldon, 845 A.2d 324, 331 (Vt.
2003) (finding that the parties did not intend to be bound until a final fully complete
document was executed); Riner v. Newbraugh, 563 S.E.2d 802, 805–06 (W. Va. 2002)
(refusing to enforce an alleged agreement despite mediator testimony that the parties
reached agreement when the parties subsequently refused to sign the writing); Ken-
drick v. Barker, 15 P.3d 734, 738–39 (Wyo. 2001) (enforcing oral mediation agreement
in the face of a claim that the agreement was contingent on agreeing to a subsequent
written document).
140. See generally Deason, supra note 90 (addressing the application of contract R
law principles to the enforcement of mediation agreements).
141. See, e.g., Coulter v. Carewell Corp. of Okla., 21 P.3d 1078, 1082–84 (Okla.
Civ. App. 2001) (holding that acceptance of an offer to settle implicitly includes a
promise to execute a release); Inwood Int’l Co. v. Wal-Mart Stores, Inc., 243 F.3d 567
(Fed. Cir. 2000) (enforcing a mediated settlement agreement that contemplated sub-
sequent execution of a more formal document and releases); Am. Network Leasing
Corp. v. Corp. Funding Houston, Inc., No. 01-00-00789-CV, 2002 WL 31266230 (Tex.
App. Oct. 10, 2002) (refusing to enforce an alleged agreement because the writing did
not include all of the material elements including the release).
142. 548 S.E.2d 499 (N.C. 2001), reh’g denied, 553 S.E.2d 36 (N.C. 2001). See also
Golding v. Floyd, 539 S.E.2d 735, 738 (Va. 2001) (refusing to enforce a signed, written
“Settlement Agreement Memorandum” that was made “subject to” a more formal
agreement).
143. Chappell v. Roth, 548 S.E.2d 499, 500 (N.C. 2001).
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b. Fraud/Misrepresentation
144. In three cases where fraud was alleged, the court reversed or remanded on
other grounds: Long v. City of Hoover, 855 So. 2d 548, 551 (Ala. Civ. App. 2003)
(reversing on procedural grounds); In re T.D., 28 P.3d 1163, 1167 (Okla. Civ. App.
2001) (finding no fraud but reversing mediated agreement terminating parental
rights on grounds of fundamental due process); and Watkins v. Lundell, 169 F.3d 540,
545–47 (8th Cir. 1999) (remanding punitive damage award in action involving breach
of and fraudulent inducement of mediated settlement agreement). In Cooper v. Aus-
tin, 750 So. 2d 711, 713 (Fla. Dist. Ct. App. 2000), the court found that presenting a
mediated settlement agreement that was obtained by extortion was a “fraud on the
court,” which presents a different type of fraud issue. This case is included here, as
well as in the cases involving duress.
145. Boyd v. Boyd, 67 S.W.3d 398, 404–05 (Tex. App. 2002) (refusing to enforce
mediated settlement because of husband’s intentional non-disclosure of assets); Kalof
v. Kalof, 840 So. 2d 365, 366–67 (Fla. Dist. Ct. App. 2003) (remanding to determine
whether mediated property settlement should be set aside because of non-disclosure);
Adams v. Adams, 11 P.3d 220, 221–22 (Okla. Civ. App. 2000) (remanding to deter-
mine if mediated settlement agreement was fair, including whether parties had dis-
closed all material matters).
146. Still v. Still, 835 So. 2d 376, 376 (Fla. Dist. Ct. App. 2003) (refusing to enforce
mediated settlement where mother made false statements about her plans to raise
the child in the marital home); Hanson v. Hanson, No. C2-98-1427, 1999 WL 31174,
at *2 (Minn. Ct. App. Jan. 26, 1999) (remanding to determine whether there was
fraud); Johnson v. Johnson, 738 So. 2d 508, 510 (Fla. Dist. Ct. App. 1999) (remanding
for evidentiary hearing or repleading on the issue of fraud).
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likely reflects the reality that judges are willing to tolerate a broad
range of adversarial tactics in both the negotiation and in the media-
tion process. The legal standard is hard to meet. To mount a success-
ful defense of fraud or misrepresentation, there must be proof not
only that the adverse party147 made a misrepresentation of material
fact that induced the agreement, but also that it was reasonable to
rely on that misrepresentation. It may be unreasonable per se to rely
on statements made by an adverse party in the context of a mediation
taking place in the midst of a lawsuit. Lawsuits are adversarial. For
example, in In re Patterson,148 the Washington Court of Appeals re-
jected a claim of fraud, in part because the court believed a party had
no right to rely on a representation of value made in a mediation
when the party could have arranged his own appraisal.149 The clear
lesson for mediation participants is to remember that negotiating in
the context of litigation is part of an adversarial process. In media-
tion, a form of facilitated negotiation often billed as a conciliatory
process, parties must retain their adversarial vigilance.150
c. Duress
147. See, e.g., Brinkerhoff v. Campbell, 994 P.2d 911, 915–16 (Wash. Ct. App.
2000) (refusing to attribute a mediator’s mistaken representation to the adverse
party).
148. 969 P.2d 1106, 1110–11 (Wash. Ct. App. 1999). See also Chitkara v. N.Y. Tel.
Co., 45 F.App’x 53, 55 (2d Cir. Sept. 6, 2002) (finding it unreasonable for a party to
rely on a mediator’s erroneous statement of the predicted litigation value of a claim
when the statement was based on a fact that the party could have verified).
149. See also Glover v. Torrence, 723 N.E.2d 924, 933 (Ind. Ct. App. 2000) (sug-
gesting that the spouse should not have relied on husband’s mediation submission
under oath and should have independently verified his income); UNIF. MEDIATION
ACT, prefatory note 1 (2003) (encouraging parties to verify all material representa-
tions rather than relying on what the adverse party says during mediation since rule
of privilege may preclude admissibility of the statements).
150. Indeed, the prefatory note to the Uniform Mediation Act reflects the reality
“that mediation is not essentially a truth-seeking process,” warning parties not to
trust the representations of adverse parties and instead to seek verification. UNIF.
MEDIATION ACT, prefatory note 1 (2003).
151. We included as duress opinions cases where the claimant argued that he or
she was pressured, or coerced into signing the agreement. See, e.g., Poptic v. Poptic,
No. CA 2002-09-215, 2003 WL 23095452, at *2 (Ohio Ct. App. Dec. 31, 2003) (refusing
to enforce separation agreement because husband claimed he was pressured to agree);
Richman v. Coughlin, 75 S.W.3d 334, 335–36 (Mo. Ct. App. 2002) (claiming that
agreement was reached by coercion); De M. v. R. S., No CN00-07593, 2002 WL
31452433, at *1 (Del. Fam. Ct. May 14, 2002) (claiming party was intimidated at the
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mediation in part because she had no attorney and the other party did have an
attorney).
152. See ARTHUR L. CORBIN ET AL., CORBIN ON CONTRACTS 40 (Joseph M. Perillo
ed., rev. ed. 2005).
153. 750 So. 2d 711, 711 (Fla. Dist. Ct. App. 2000).
154. Id. Arguably, a second successful case is Poptic, 2003 WL 23095452, at *2,
where the court refused to enforce a separation agreement because the husband said
that he was pressured to sign it.
155. Cooper v. Austin, 750 So. 2d 711, 713 (Fla. Dist. Ct. App. 2000).
156. See, e.g., Wichman v. County of Volusia, 110 F. Supp. 2d 1354, 1356–57 (M.D.
Fla. 2000) (denying summary judgment on the issue whether the employee volunta-
rily waived rights under the ADA).
157. See, e.g., Kalof v. Kalof, 840 So. 2d 365 (Fla. Dist. Ct. App. 2003) (remanding
to determine whether agreement entered into by duress or fraud); Adams v. Adams,
11 P.3d 220, 221–22 (Okla. Civ. App. 2000) (remanding to determine if agreement was
fair and reasonable); Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App.
2001) (remanding for consideration of wife’s allegation that mediator committed mis-
conduct by improperly influencing coercing agreement, noting an exception to the
general rule that coercion and duress by a third party is insufficient to invalidate an
agreement between principals).
158. See infra notes 229–46 and accompanying text. R
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d. Undue Influence
159. See, e.g., Craig A. McEwen, Nancy H. Rogers & Richard J. Maiman, Bring in
the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce
Mediation, 79 MINN. L. REV. 1317 (1995) (addressing fairness in divorce mediation);
Welsh, supra note 122, at 798, 799–816 (expressing a concern that the focus on settle- R
ment and the lawyers’ preferences for evaluative mediations reducing the role of par-
ticipants may detract from assuring procedural justice in court-connected mediation);
Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Inno-
vation Co-Opted or “The Law of ADR,” 19 FLA. ST. U. L. REV. 1, 3 (1991) (“In short,
courts may try to use various forms of ADR to reduce caseloads and increase court
efficiency at the possible cost of realizing better justice.”).
160. James J. Alfini, Trashing, Bashing and Hashing It Out: Is This the End of
“Good Mediation”?, 19 FLA. ST. U. L. REV. 47, 66–73 (1991) (characterizing mediator
styles); Welsh, supra note 2, at 68–79. R
161. See, e.g., Taylor v. Prudential Ins. Co. of Am., 91 F.App’x 746, 747 (3d Cir.
2003) (finding no undue influence when plaintiff signed the agreement, reviewed it
line by line with counsel, was a college graduate with a business administration de-
gree, and actively participated in the mediation); Crupi v. Crupi, 784 So. 2d 611,
613–14 (Fla. Dist. Ct. App. 2001) (denying claim that mediated settlement agreement
in divorce action was obtained by undue influence where party testified that she felt
pressure and anxiety and was taking medication, but also testified that nobody un-
duly influenced her, although a hurricane was predicted for the next day); Milazzo v.
U.S. Postal Serv., No. 02-3403, 2003 WL 839497, at *1 (Fed. Cir. Mar. 6, 2003) (re-
jecting claim of misinformation and coercion leading to agreement to retire).
162. 68 F. Supp. 2d 1110, 1139–51 (N.D. Cal. 1999).
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pressure, headaches and abdominal pains, and testified that she was
in pain, weak and dizzy, and that she was pressured by her lawyer,
the defendants and their counsel, the court found that this agreement
obtained at 1:00 A.M. after fifteen hours of mediation was not ob-
tained by undue influence.163 There are no opinions in our database
where a court found undue influence, although in one case, Adams v.
Adams,164 the matter was remanded back to the trial judge for a fac-
tual assessment. In several cases, the claim of undue influence was
targeted, in part, at the conduct of the party’s counsel.165
e. Mistake
163. Olam v. Congress Mortgage Co., 68 F. Supp. 2d 1110, 1139–51 (N.D. Cal.
1999).
164. 11 P.3d. 220, 221–22 (Okla. Civ. App. 2000) (remanding a mediated divorce
settlement agreement for a determination of whether it was fair, just, and
reasonable).
165. See, e.g., Brosnan v. Gillin, No. A097229, 2003 WL 1558257, at *3–4 (Cal. Ct.
App. Mar. 26, 2003) (denying claim of undue influence and enforcing a fee settlement
and release between a party and her lawyer obtained in conjunction with a mediated
settlement agreement negotiated by the lawyer with a third party); Mardanlou v.
Gen. Motors Corp., 69 F.App’x 950, 952 (10th Cir. 2003) (rejecting claim that medi-
ated settlement should be set aside because party was taking medications that made
him “easily manipulated and persuaded” and was pressured by the mediator, the
court, and his own attorney); Advantage Props., Inc., v. Commerce Bank, No. 00-3014,
2000 WL 1694071, at *4 (10th Cir. Nov. 13 2000) (claiming undue influence and du-
ress when the argument really was focused on whether the party’s counsel provided
adequate representation).
166. See, e.g., Sheng v. Starkey Labs, Inc., 117 F.3d 1081, 1084 (8th Cir. 1997)
(stating that any mistake justifying rescission must “go to the very nature of the
deal”).
167. See, e.g., Ghahramani v. Guzman, 768 So. 2d 535, 537 (Fla. Dist. Ct. App.
2000) (stating that a mediated settlement agreement should not be set aside on the
grounds of unilateral mistake).
168. See RESTATEMENT (SECOND) OF CONTRACTS § 153 (1981).
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f. Unconscionability
176. See Kim v. D.M. Song & Dallas Auto Body Repairs, No. 05-01-01197-CV, 2002
WL 1380416 (Tex. Ct. App. June 27, 2002 ) (ruling that a generalized claim that a
mediated settlement agreement was unfair presents no legal issue for review)
177. See, e.g., Crupi v. Crupi, 784 So. 2d 611, 612–13 (Fla. Dist. Ct. App. 2001)
(denying claim that mediated divorce settlement should be set aside because of “un-
reasonableness” or “unfairness”); Kendrick v. Barker, 15 P.3d 734, 740–41 (Wyo.
2001) (enforcing personal injury settlement denying claims that unforeseen injuries
made the agreement unconscionable).
178. In some cases, the courts did not refer to the doctrine of unconscionability but
construed statutes that imposed some duty on the court to consider whether the
agreement was fair. See, e.g., F.B.C., III v. B.A.C., No. CN89-8431, 2002 WL 1939950,
at *4 (Del. Fam. Ct. Mar. 25, 2002) (modifying a custody order based on the best
interests of the child); Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App. 2000)
(ruling that a settlement agreement involving child custody and visitation must be
approved by the court and will be approved unless unfair, unreasonable, or involving
manifest injustice).
179. No. M2000-02186-COA-R3-CV, 2001 WL 1035174 (Tenn. Ct. App. Sept. 11,
2001). See also In re Marriage of Caffrey, No. 00-307, 2002 WL 1484015, at *3 (Mont.
Apr. 11, 2002) (ruling that court need not find that the agreement was unconscionable
to modify child support agreement that is not incorporated in a decree, and that the
modification was not unconscionable).
180. Smith v. Smith, No. M2000-02186-COA-R3-CV, 2001 WL 1035174, at *5–7
(Tenn. Ct. App. Sept. 11, 2001). See also Swanson v. Swanson, 580 S.E.2d 526, 527
(Ga. 2003) (finding void on public policy grounds a mediated settlement that included
a waiver of child support in exchange for taking less alimony).
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g. Technical Defenses
Rarely did courts refuse to enforce an agreement based on purely
technical defenses. Haghighi v. Russian-American Broadcasting
Co.182 is the prototypical exception in this category. Ultimately, the
courts in Haghighi refused to enforce an otherwise fair settlement
agreement signed by the parties and their attorneys, which included
a clause that the writing was a “Full and Final Mutual Release of all
Claims” because the document did not also include the words “It was
binding,” as required by statute.183 California has similar legisla-
tion,184 as does Texas,185 but fortunately there are few cases that
turn on such technicalities.
Twenty-five cases specifically involved a statute of frauds de-
fense that the agreement was not in writing. A larger number (40)
addressed the question of whether the agreement was signed by the
appropriate parties. The lack of a signature could constitute a tech-
nical defense if the parties actually reached agreement but simply
181. 670 N.W.2d 129, 134–35 (Iowa 2003). See also In re T.D., 28 P.3d 1163, 1168
(Okla. Civ. App. 2001) (refusing to enforce a mediated settlement agreement absent
additional factual findings where a mother with full advice and representation of
counsel agreed to terminate her parental rights but the agreement contained incon-
sistent elements raising fundamental due process questions regarding whether the
mother knowingly waived her parental rights).
182. 173 F.3d 1086, 1088–89 (8th Cir. 1999). The two other published opinions
dealing with this case were in 1998 and not included in this database. Haghighi v.
Russ.-Am. Broad. Co., 945 F. Supp. 1233, 1234–35 (D. Minn. 1996) (enforcing media-
tion settlement agreement that did not include specific language that “it was bind-
ing”); Haghighi v. Russ.-Am. Broad. Co., 577 N.W.2d 927, 929–30 (Minn. 1998)
(refusing to enforce a mediated settlement agreement that stated it was a “full and
final mutual release of all claims” signed by the parties and by counsel because the
agreement did not include the words “this is binding” as required by statute).
183. See generally James R. Coben & Peter N. Thompson, The Haghighi Trilogy
and the Minnesota Civil Mediation Act: Exposing a Phantom Menace Casting a Pall
Over the Development of ADR in Minnesota, 20 HAMLINE J. PUB. L. & POL’Y 299
(1999).
184. See CAL. EVID. CODE § 1123 (2002) (providing that absent consent to admit, a
written mediated settlement agreement is not admissible unless it includes language
that it is admissible or that it is enforceable).
185. See TEX. FAM. CODE ANN. § 6.602 (2002) (providing that a mediated settle-
ment agreement in a family law matter is enforceable only if it includes, among other
matters, a “prominently displayed statement that is in boldfaced type or capital let-
ters or underlined, that the agreement is not subject to revocation”).
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h. Other Defenses
In 370 of the enforcement cases, the opinions addressed argu-
ments or defenses other than traditional contract defenses. The larg-
est group of these cases (127) involved standard issues of
interpretation190 or performance.191 For the most part, these cases
186. Haghighi v. Russ.-Am. Broad. Co., 173 F.3d 1086, 1088–89 (8th Cir. 1999)
(concluding that a mediated settlement satisfied statutory requirement that it promi-
nently displayed a statement that it is not subject to revocation); In re K.R.H., 784
N.E.2d 985 (Ind. Ct. App. 2003) (affirming trial court enforcement of agreement de-
spite parties’ failure to submit a joint stipulation of disposition).
187. 38 S.W.3d 161 (Tex. Ct. App. 2001).
188. At the time of this settlement, the statute required that “the agreement: (1)
provided in a separate paragraph that the agreement was not subject to revocation;
(2) was signed by each party to the agreement; and (3) was signed by the party’s
attorney, if any, who was present at the time the agreement was signed.” Id. at 165
n.5.
189. Id. at 164 (quoting TEX. FAM. CODE ANN. § 7006(a) (2002)).
190. Nearly all of the enforcement cases, other than the opinions raising formation
issues, involved an interpretation of the contract. We attempted to include in this
category only those cases that raised interpretation issues and not a specific contract
defense. See, e.g., Butler v. Caldwell, No. 48931-3-I, 622 WL 554952, at *3–4 (Wash.
Ct. App. Apr. 15, 2002) (determining that a delivery of an appraisal by fax started the
three day period for rejection set forth in the mediated settlement agreement); Cas-
well v. Anderson, 527 S.E.2d 582, 584 (Ga. Ct. App. 2000) (interpreting clause in me-
diated settlement agreement setting forth compensation for withdrawing partner);
Goldberg v. Goldberg, No. 148, 100-B, 1999 WL 542190, at *1 (D. Tex. Apr. 27, 1999)
(interpreting mediation agreement to allow for religious training of daughter in a
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mainline church, which would include Catholic and “churches in the Protestant faith
such as Presbyterian, Methodist, Baptist, Christian, Episcopalian” but not the Metro-
politan Church).
191. See, e.g., Baum v. Rockland Cmty. Coll., 299 F. Supp. 2d 172, 175 (S.D.N.Y.
2003) (addressing whether plaintiff executed a satisfactory release as required in the
settlement agreement); Blyth Software, Inc. v. Compass Software, Inc., No. 98-35977,
2000 WL 249296 (9th Cir. Mar. 3, 2000) (addressing payment of attorneys’ fees pursu-
ant to the settlement agreement).
192. See, e.g., In re N.Z.B, 779 So. 2d 508 (Fla. Dist. Ct. App. 2000) (amending a
custody agreement when mother died); Smith v. Smith, No. M2000-02186-COA-R3-
CV, 2001 WL 1035174 (Tenn. App. Sept. 11, 2001) (addressing changed circumstances
because father had relocated eight hours from mother and father had not been visit-
ing child); Adamson v. Dodge, 816 A.2d 455 (Vt. 2002) (addressing change in income).
193. 176 F. Supp. 2d 1199, 1206 (D. Kan. 2001).
194. See, e.g., Lawson v. Brown’s Day Care Ctr., Inc., 776 A.2d 390 (Vt. 2001);
Metz v. Metz, 61 P.3d 383 (Wyo. 2003); Shake v. The Ethics Comm. of the Ky. Judici-
ary, 122 S.W.3d 577 (Ky. 2003); Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003).
195. In re Anonymous, 283 F.3d 627 (4th Cir. 2002); In re County of Los Angeles,
223 F.3d 990 (9th Cir. 2000); Streber v. Hunter, 221 F.3d 701 (5th Cir. 2000), reh’g
and suggestion for reh’g en banc denied, 233 F.3d 576 (5th Cir. 2000).
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(11); and lawyer conflict of interest (5). Often, the ethics issue is part
of a larger dispute about mediation. For example, seventeen ethics/
malpractice opinions were raised in the context of challenges to en-
forcement of mediated settlements,196 twenty-two opinions also ad-
dressed confidentiality,197 and twelve discussed issues at the
intersection of arbitration and mediation.198
While the codes of professional or judicial responsibility have
been the source of substantial discussion and debate and are policed
by various boards or tribunals, the roles and responsibilities of the
participants in the context of mediation are less developed and a bit
murky. Many jurisdictions have codes of conduct for mediators, as
well as boards with some type of enforcement power. However, even
in jurisdictions with these institutions, the regulatory process is just
beginning to develop norms for expected behavior. Much of the regu-
latory effort to date has been aimed more at protecting the secrecy
than the fairness of the mediation process. Litigated issues address-
ing the conduct of lawyers and mediators are separated into two cate-
gories: first, cases where a party raises attorney or mediator
misconduct as a defense in an enforcement action; and second, mal-
practice or ethical actions against the attorney or mediator.
B. Attorney Conduct
1. Attorney Misconduct as a Defense to Enforcement Claims
In twenty-one enforcement cases parties argued that their attor-
ney acted in excess of his authority in agreeing to the settlement.
This defense was rarely successful.199 In Caballero v. Wikse,200 the
plaintiff left the mediation, made representations that the plaintiff’s
196. See, e.g., Chitkara v. N.Y. Tel. Co., 45 F.App’x 53 (2d Cir. 2002); Golden v.
Hood, No. E1999-02443-COA-MR3-CV, 2000 WL 122195 (Tenn. Ct. App. Jan. 26,
2000); In re Marriage of Van Horn, No. H024181, 2003 WL 21802273 (Cal. Ct. App.
Aug. 6, 2003).
197. See, e.g., Avary v. Bank of Am., N.A., 72 S.W.3d 779 (Tex. App. 2002); Enter.
Leasing Co. v. Jones, 789 So. 2d. 964 (Fla. 2001); Lawson, 776 A.2d 390.
198. See, e.g., Crow Constr. Co. v. Jeffrey M. Brown Assocs., Inc., 264 F. Supp. 2d
217 (E.D. Pa. 2003); In re Cartwright, 104 S.W.3d 706 (Tex. App. 2003); Team Design
v. Gottlieb, 104 S.W.3d 512 (Tenn. Ct. App. 2002).
199. Several courts refused to enforce purported settlement agreements when
claims that the lawyers lacked authority were coupled with other valid defenses. See,
e.g., Behling v. Russell, 293 F. Supp. 2d 1178 (D. Mont. 2003) (refusing to enforce
purported agreement because, inter alia, it was not filed); Heuser v. Kephart, 215
F.3d 1186 (10th Cir. 2000) (refusing to enforce purported settlement for lack of consid-
eration). Moreover, successful lack of authority claims was not just limited to the
actions of attorneys. For example, in Suarez v. Jordan, 35 S.W.3d 268 (Tex. App.
2000), the court refused to enforce a written settlement reached in court-ordered me-
diation of a disputed easement, where the property owner’s son (without advice of
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counsel and against wishes of his father) participated in the mediation and signed the
agreement.
200. No. 27995, 2003 WL 21697914 (Idaho July 23, 2003), opinion withdrawn and
superseded, 92 P.3d 1076 (Idaho 2004). See also Bennet v. Lacy, No. 14-03-00530-CV,
2003 WL 22945637 (Tex. App. Dec. 16, 2003) (finding that plaintiff, by not filing a
motion for new trial, waived the right to complain that a consent judgment signed by
plaintiff’s attorney was signed without the consent of the plaintiff).
201. See Caballero v. Wikse, No. 27995, 2004 WL 858710 (Idaho Apr. 22, 2004).
This 2004 opinion is not included in this database.
202. No. E030870, 2003 WL 22905330 (Cal. Ct. App. Dec. 10, 2003).
203. See, e.g., Gelfand v. Gabriel, No. SCO61373, 2002 WL 1397037, at *3 (Cal. Ct.
App. June 27, 2002) (enforcing mediated settlement agreement where defendant
claimed, among other things, that his counsel pressured him to sign without “fully
explaining what it meant”); Kendrick v. Barker, 15 P.3d 734, 741 (Wyo. 2001) (enforc-
ing mediated settlement agreement where plaintiff claimed that her attorney led her
to believe that she would be responsible for defendant’s attorneys fees if she lost at
trial and otherwise pressured her to settle). See also Bandera v. City of Quincy, 344
F.3d 47 (1st Cir. 2000) (staying judgment after jury verdict in favor of Title VII plain-
tiff, and remanding to trial court for determination of enforceability of pre-trial hand-
written mediated settlement against challenge that plaintiff’s attorney coerced
settlement by threat that plaintiff would be held in contempt).
204. See, e.g., Mardanlou v. Gen. Motors Corp., 69 F.App’x 950 (10th Cir. 2003)
(enforcing settlement despite plaintiff’s claims that he was pressured to settle by the
court, the mediator, and his own attorney); Tompkins, 2003 WL 22905330 (claiming
attorney misconduct, fraud, and duress); Olam v. Cong. Mortgage Co., 68 F. Supp. 2d
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1110, 1141 n.46 (N.D. Cal. 1999) (raising numerous defenses including threats by
lawyer).
205. No. E1999-02443-COA-MR3-CV, 2000 WL 122195, at *1 (Tenn. Ct. App. Jan.
26, 2000). See also Olam, 68 F. Supp. 2d at 1141 n.46 (raising numerous defenses
including threats by lawyer).
206. Golden v. Hood, No. E1999-02443-COA-MR3-CV, 2000 WL 122195, at *1
(Tenn. Ct. App. Jan. 26, 2000).
207. Id.
208. Id. at *2.
209. No. B149130, 2002 WL 31256677, at *8 (Cal. Ct. App. Oct. 8, 2002).
210. 4 Cal. Rptr. 3d 357 (Cal. Ct. App. 2003), reh’g denied (Sept. 24, 2003). The
court ultimately found no liability, in essence finding the error harmless.
211. Id.
212. Id. at 365.
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213. 819 A.2d 471 (N.J. Super. Ct. App. Div. 2003), cert. denied, 827 A.2d 290 (N.J.
2003).
214. See generally Forrest Mosten, Unbundling of Legal Services and the Family
Lawyer, 28 FAM. L.Q. 421 (1994).
215. See, e.g., McGoffin v. Dahl, No. 27486-8-II, 2003 WL 21235453 (Wash. Ct.
App. May 28, 2003); McKnight v. Dean, No. 97-C-8939, 2000 WL 696796 (N.D. Ill.
May 30, 2000).
216. 221 F.3d 701 (5th Cir. 2000), reh’g and suggestion for reh’g en banc denied,
233 F.3d 576 (5th Cir. 2000).
217. 50 S.W.3d 1 (Tex. App. 1999), aff’d in part, rev’d in part, 53 S.W.3d 343 (Tex.
2001).
218. See, e.g., James v. Ky. Bar Ass’n, 13 S.W.3d 925 (Ky. 2000).
219. See, e.g., People v. Patterson, 2002 WL 1010111 (Colo. O.P.D.J. 2002).
220. See, e.g., In re Anonymous, 283 F.3d 627 (4th Cir. 2002).
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221. See, e.g., Iowa Supreme Court Bd. of Prof. Ethics & Conduct v. Rauch, 650
N.W.2d 574 (Iowa 2002); People v. Hohertz, No. 02PDJ071, 2003 WL 21982240 (Colo.
O.P.D.J. July 10, 2003); In re Disciplinary Proceedings Against Banks, 665 N.W.2d
827 (Wis. 2003).
222. See, e.g., Fla. Bar v. Rotstein, 835 So. 2d 241 (Fla. Dist. Ct. App. 2002), reh’g
denied (Jan. 10, 2003).
223. See, e.g., Inquiry Comm. v. Sexton, 102 S.W.3d 512 (Ky. 2003).
224. See, e.g., Cuyahoga County Bar Assoc. v. Maybaum, 787 N.E.2d 1180 (Ohio
2003).
225. See, e.g., Horowitz v. Weishoff, 723 A.2d 121 (N.J. Super. Ct. App. Div. 1999),
aff’d as modified, 787 A.2d 236 (N.J. Super. Ct. App. Div. 2001).
226. See, e.g., Fla. Bar v. Fredericks, 731 So. 2d 1249 (Fla. Dist. Ct. App. 1999).
227. See, e.g., In re Knight, 763 N.Y.S.2d 94 (N.Y. App. Div. 2003).
228. See, e.g., Korfmann v. Kemper Nat. Ins. Co., 685 N.Y.S.2d 282 (N.Y. App. Div.
1999) (reversing trial court and granting motion to disqualify plaintiff’s counsel be-
cause she would be a key witness in suit for damages for breach of agreement to medi-
ate, bad faith, and unfair settlement practices); Matluck v. Matluck, 825 So. 2d 1071
(Fla. Dist. Ct. App. 2002) (finding that trial court erred in not disqualifying a law firm
from representing a party in a post-dissolution custody case, when a member of the
firm previously acted as a mediator in the same proceeding).
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C. Mediator Conduct
229. See generally Michael Moffitt, Ten Ways to Get Sued: A Guide for Mediators, 8
HARV. NEGOT. L. REV. 81 (2003).
230. See generally Scott Hughes, Mediator Immunity: The Misguided and Inequi-
table Shifting of Risk, 83 OR. L. REV. 107, 111 n.14 (2004) (listing scholarship, both
pro and con, concerning the advisability of mediator immunity).
231. See Michael Moffitt, Suing Mediators, 83 B.U. L. REV. 147 (2003) (discussing
the dearth of cases brought against mediators). See also KIMBERLEE K. KOVACH, ME-
DIATION, PRINCIPLES AND PRACTICE 458 (3d ed. 2004) (reporting that the number of
malpractice claims against mediators and arbitrators handled by one of the primary
insurers of ADR neutrals was small but was increasing from five to thirteen from
1993 to 1999).
232. We found one case involving a claim of misrepresentation by the mediator,
Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001). See also
Mardanlou v. Gen. Motors Corp., 69 F.App’x 950 (10th Cir. 2003) (enforcing settle-
ment despite claims that the party was pressured to settle by the court, the mediator,
and his own attorney).
233. In one opinion, the party raised both a claim of mediator bias and duress.
See, e.g., Mardanlou, 69 F.App’x 950.
234. See, e.g., Fishof v. Grajower, 691 N.Y.S.2d 507 (N.Y. App. Div. 1999) (enforc-
ing mediated settlement agreement where plaintiff and plaintiff’s counsel knew of
mediator’s financial relationship with the adverse party).
235. Isaacson v. Isaacson, 792 A.2d 525 (N.J. Super. Ct. App. Div. 2002).
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236. Isaacson, 792 A.2d at 534–37. But in Scott v. District of Columbia, 197
F.R.D. 10 (D.D.C. 2000), which was not an enforcement case, a magistrate judge
maintained that he could serve both as a mediator and as a magistrate judge in
resolving a wrongful death action involving a minor child and her mother as plain-
tiffs, recognizing that as mediator the magistrate judge would be privy to confidential
information. In Matluck v. Matluck, 825 So. 2d 1071 (Fla. Dist. Ct. App. 2002), an-
other non-enforcement case, the court disqualified the husband’s law firm when the
mediator of the marital dispute joined that firm.
237. See, e.g., Chitkara v. N.Y. Tel. Co., 45 F.App’x 53, 55 (2d Cir. 2002) (affirming
a trial court’s order to enforce a mediated settlement despite plaintiff’s claim that the
settlement was procured through mediator coercion and fraudulent misrepresenta-
tion, noting that “[t]he nature of mediation is such that a mediator’s statement re-
garding the predicted litigation value of a claim, where that prediction is based on a
fact that can readily be verified, cannot be relied on by a counseled litigant whose
counsel is present at the time the statement is made.”); Gallagher v. Gallagher, No.
125000, 1999 WL 795683, at *2 (Va. Cir. Ct. Aug. 18, 1999) (claiming mediator brow-
beat party to exact settlement); In re BankAmerica Corp. Sec. Litig., 210 F.R D. 694,
705 (E.D. Mo. 2002) (rejecting claim that class action settlement should not be en-
forced because the mediator “strong-armed” class counsel).
238. See, e.g., Estate of Skalka v. Skalka, 751 N.E.2d 769, 772 (Ind. Ct. App. 2001)
(affirming when trial judge in settlement posture stated, “[b]ut if you people want to
continue fighting, I’m no longer going to be the mediator here, I’m going to be a judge.
You are going to go through the cost of this thing. It’s going to be financially draining
and I can tell you you’re going to wind up losing the property”); Golden v. Hood, No.
E1999-02443-COA-MR3-CV, 2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000) (com-
plaining that mediator represented that jury would not award him full amount of
medical expenses if he went to trial).
239. Welsh, supra note 2, at 64–78 (2000) (discussing court acceptance of pressure R
tactics in settlement discussions).
240. 253 F.3d 926 (7th Cir. 2001) (finding lawyer’s refusal to produce clients at
mediation unjustifiable).
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Appeals found that the lawyers were not justified. The court ad-
dressed, but summarily rejected, counsel’s concern that the mediator
was attempting to coerce the settlement.
Perhaps the most novel, albeit unsuccessful, claim of duress oc-
curred in Patterson v. Taylor,241 where a party claimed the mediator
coerced him into settling and not consulting with counsel by continu-
ally stating that if he “didn’t sign the agreement [he] would ruin [the
mediator’s] record of being always able to settle the case.”
In Vitakis-Valchine v. Valchine,242 the claim of mediator miscon-
duct was successful, but the court had to invent a legal theory to jus-
tify the result. Plaintiff maintained that her divorce settlement was
obtained after an eight-hour mediation in part because of coercion
and undue influence exerted by the mediator.243 According to the
plaintiff, the mediator threatened to tell the judge that she was the
cause of the settlement failure, speculated that the court would rule
against her, and offered opinions about the potential legal costs and
how refusing to settle would affect her pensions.244 Traditional con-
tract defenses of duress or undue influence were unavailable to plain-
tiff because under these theories the undue pressure must come from
the adverse party. Nonetheless, the court concluded that plaintiff
stated a claim for relief based on a theory of mediator misconduct.245
Florida has an elaborate set of rules governing the conduct of
mediators. The rules are aimed at protecting the parties’ right to
self-determination by limiting mediator coercion and the practice of
some mediators to provide opinions about the expected outcome of the
case.246
247. Goad v. Ervin, No. E033593, 2003 WL 22753608 (Cal. Ct. App. Nov. 21, 2003)
(asserting quasi-judicial immunity to preclude suit against mediator for alleged defa-
mation and filing of a false document); Jefferson v. William R. Ridgeway Family
Courthouse, No, CO38059, 2002 WL 819859 (Cal. Ct. App. May 1, 2002) (relying on
statutory litigation privilege to affirm dismissal of claim that alleged that mediator
had falsified mediation investigation report prepared in context of child custody pro-
ceedings); Jewell v. Underwood, No 2000-CA-G1, 2000 WL 1867565, at *4 (Ohio Ct.
App. Dec. 22, 2000) (dismissing claim that mediator committed fraud by falsely repre-
senting that “she was trained as a mediator and . . . could ably provide mediation
services” in family law matter, where mediator’s uncontradicted affidavit stated she
informed the parties’ attorneys that she was not a trained divorce mediator); Lehrer
v. Zwernemann, 14 S.W.3d 775, 777–78 (Tex. App. 2000) (concluding that failure by
mediator to affirmatively disclose relationship with opposing counsel and to inform
party in mediation that his lawyer had failed to conduct discovery could not be basis
for negligence or legal malpractice, breach of contract, breach of fiduciary duty, or
fraud claims, where the complaining party had “constructive knowledge” of the prior
relationship between the mediator and opposing counsel and could not articulate any
damages from alleged improper behavior).
248. Lehrer, 14 S.W.3d at 776.
249. Id. at 777.
250. Id.
251. Id. at 778.
252. Williamwest v. Am. Studios/PCA Int’l., Inc., 827 So. 2d 526 (La. Ct. App.
2002), reh’g denied (Oct. 28, 2002) (finding no evidence to support party’s allegation
that Office of Workers’ Compensation mediator, party’s former attorneys, and the
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trial court itself were parties to a conspiracy against him); Fishof v. Grajower, 691
N.Y.S.2d 507 (N.Y. App. Div. 1999) (reversing trial court and granting husband defen-
dant’s motion for summary judgment against claims of fraud and breach of fiduciary
duty for alleged conspiracy with a mediator to deceive plaintiff into accepting a settle-
ment below that to which she was entitled).
253. 216 F. Supp. 2d 325 (S.D.N.Y. 2002) (granting summary judgment for defen-
dant in claim that attorney/mediator was negligent and had conflicts of interest in
mediating dispute between former client and former acquaintance).
254. Id. at 332.
255. See, e.g., David A. Hoffman & Natasha A. Affolder, A Well-Founded Fear of
Prosecution: Mediation and the Unauthorized Practice of Law, DISP. RESOL. MAG.,
Winter 2000, at 20 and articles cited therein.
256. 816 So. 2d 587 (Fla. 2002).
257. Id. at 599–600.
258. The Florida Bar v. Neiman, 816 So. 2d 587, 589–94 (Fla. 2002).
259. Adams v. Torbarina, No. B15268, 2003 WL 321433 (Cal. Ct. App. Feb. 13,
2003). See also Humphrey v. Mesa Operating Ltd. P’ship, Mesa, Inc., No. 05-97-
00827-CV, 1999 WL 652500 (Tex. Ct. App. Aug. 27, 1999) (affirming trial court re-
fusal to compel discovery answers to questions regarding arbitrator’s prior mediations
with law firm involved in arbitration as irrelevant to issue of possible evident partial-
ity). But cf. Crow Constr. Co. v. Jeffrey M. Brown Assocs. Inc., 264 F. Supp. 2d 217
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(E.D. Pa. 2003) (concluding that an arbitrator’s undisclosed but nearly contemporane-
ous service as a mediator in another case involving a party in the arbitration consti-
tuted sufficient appearance of bias to vacate an arbitral award).
260. Tex. Commerce Bank v. Universal Technical Inst. of Tex., Inc., 985 S.W.2d
678, 681 n.4 (Tex. Ct. App. 1999) (quoting the trial court below which rejected a chal-
lenge to an arbitral award that was based on undisclosed mediation service).
261. Nos. A092829, A093661, 2002 WL 28158 (Cal. Ct. App. Jan. 11, 2002).
262. No. S-02-017, 2003 WL 21419175, at *7 (Ohio App. June 20, 2003). See also
Township of Teaneck v. Teaneck Firemen’s Mut. Benevolent Ass’n Local No. 42, 802
A.2d 569 (N.J. Super. Ct. App. Div. 2002), cert. granted, 812 A.2d 1109 (N.J. 2002),
aff’d, 832 A.2d 315 (N.J. 2003) (accepting withdrawal of interest arbitrator who had
first tried unsuccessfully to mediate case); In re Cartwright, 104 S.W.3d 706, 714
(Tex. Ct. App. 2003) (ruling that the trial court abused its discretion by appointing
mediator of child custody dispute as arbitrator of subsequent property dispute with-
out consent of the parties, noting that “[i]f the mediator is later appointed to be the
arbitrator between the same parties, he or she is likely to be in the possession of
information that either or both of those parties would not have chosen to reveal to an
arbitrator”). But cf. Hallam v. Fallon, No. HO23424, 2003 WL 21143014, at *10 (Cal.
Ct. App. May 16, 2003) (rejecting a challenge to an arbitral award issued by a neutral
who had previously tried to mediate the case where there had been a “gradual trans-
formation from mediation to arbitration” that was recognized by all the parties and,
indeed, initiated by the party challenging the arbitral award, the court confirmed the
award).
263. Bowden v. Weickert, No. S-02-017, 2003 WL 21419175, at *6 (Ohio App. June
20, 2003).
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270. 66 F.App’x 840 (10th Cir. 2003), cert. denied, 124 S.Ct. 1083 (Jan. 12, 2004)
(finding no impropriety in the same magistrate judge serving as both mediator and
later as judge recommending enforcement of settlement).
271. Id. at 842 (citing Pueblo of San Ildefonso v. Ridlon, 90 F.3d 423, 424 (10th
Cir. 1996) (finding no violation of court confidentiality rules where a party disclosed
mediation communications in response to an order to show cause)). Because of confi-
dentiality concerns, the Tenth Circuit panel ruling in Pueblo of San Ildefonso recused
itself from all future deliberations—exactly what the magistrate did not do in Zhu.
272. No. 44348-8-I, 2000 WL 264022 (Wash. Ct. App. 2000) (enforcing settlement
agreement obtained by judge acting as a mediator).
273. Id. at *2–3.
274. Id. at *3.
275. 40 F.App’x 126 (6th Cir. 2002).
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276. Renkoph v. REMS, Inc., 40 F.App’x 126, 130 (6th Cir. 2002).
277. 751 N.E.2d 769 (Ind. Ct. App. 2001).
278. Id. at 772.
279. 789 So. 2d 964 (Fla. 2001). See also Metz v. Metz, 61 P.3d 383 (Wyo. 2003)
(refusing to disqualify trial judge in divorce action after judge had presided over ac-
tion to enforce mediated settlement).
280. Enterprise Leasing Co. v. Jones, 789 So. 2d 964, 967–68 (Fla. 2001).
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281. 770 A.2d 1237 (N.J. Super. Ct. App. Div. 2001).
282. Id. at 1242. The court wrote:
When becoming too intimately involved with discovery and case manage-
ment, which may inevitably lead to settlement discussions, a judge may
reach a point where it may well appear to the clients that one side is being
favored over another. We caution that excessive involvement in proceedings
before trial in cases where that judge will ultimately be the fact finder would
dictate that the judge should step aside and allow another judge to try the
case because of opinions expressed. We are not addressing the usual non-
jury case where a judge must necessarily be involved to some degree, al-
though not completely immersed, in attempting to move a case or encourage
settlement of a case. Settlements, of course, are always desirable from the
standpoint of the litigants as well as the court system. We merely caution,
without deciding now, that it may well be appropriate before this case
reaches trial for the judge to consider whether he should step down from
hearing the actual trial of the case because of the degree of involvement.
See also Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003) (challenging trial judge’s
contact with mediator).
283. 122 S.W.3d 577 (Ky. 2003). See also In re Fine v. Nev. Comm’n on Judicial
Discipline, 13 P.3d 400 (Nev. 2000) (affirming the removal of a judge from office in
part because the judge appointed her first cousin as a mediator in a child custody
matter).
284. Shake v. Ethics Committee of the Kentucky Judiciary, 122 S.W.3d 577, 584
(Ky. 2003).
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that the judge has the absolute discretion to order mediation even if
they choose otherwise.”285
A. Judicial Authority
The best overview of judicial authority to compel mediation is
provided by In re Atlantic Pipe Corp.,286 a rare advisory mandamus
order issued by the First Circuit Court of Appeals. The decision ex-
haustively reviews the four sources of court authority to compel medi-
ation: local court rule; applicable statutes; the Federal Rules of Civil
Procedure; and the court’s inherent power.
While squarely affirming the power of courts to compel media-
tion, the decision also questions the wisdom of mandating mediation
against parties’ wishes, noting that “[r]equiring parties to invest sub-
stantial amounts of time and money in mediation under such circum-
stances may well be inefficient.”287 A small number of courts echo
this view and refuse to compel mediation when convinced the process
will be futile. For example, in In re African-American Slave Descend-
ants’ Litigation,288 an Illinois federal district court refused to exercise
24, 2003) (denying a request by the tribal nation to refer the dispute to mediation
where the state claimed 11th amendment immunity, making mediation futile in the
court’s view); LLH v. SCH, No. S-10174, 2002 WL 1943659 (Alaska Aug. 21, 2002)
(finding that the trial court did not abuse discretion by modifying the parties’ custody
agreement to delete mandatory mediation provision where record as a whole shows
that parties cannot cooperate to utilize mediation).
289. 78 P.3d 1212 (Mont. 2003).
290. Id. at 1214.
291. See, e.g., Tutu Park, Ltd. v. O’Brien Plumbing Co., 180 F. Supp. 2d 673 (D.
V.I. 2002) (finding interlocutory and unappealable an order of the Territorial Court of
the Virgin Islands compelling parties to mediate while continuing indefinitely a pend-
ing summary judgment motion hearing on arbitrability; moreover, nothing in the
FAA precludes the Territorial Court’s use of extrajudicial mediation proceedings
before resolving the question of arbitrability); In re Thomas H., No. A100644, 2003
WL 21481113 (Cal. Ct. App. June 27, 2003) (refusing to find error in trial court failure
to refer defendant to a victim-offender reconciliation program).
292. See, e.g., In re Enron Corp., No. 03 Civ. 5078(DLC), 2003 WL 22171695
(S.D.N.Y. Sept. 22, 2003) (refusing to withdraw reference of proceedings to bank-
ruptcy court and noting that judicial efficiency, as well as uniform administration of
bankruptcy proceedings, weigh in favor of allowing mediation process in bankruptcy
court to proceed even for claims allegedly subject to arbitration); Lassiter v. Lassiter,
Nos. C-020494, C-020370, C-020128, 2003 WL 21034193 (Ohio App. May 9, 2003) (en-
dorsing requirement to mediate all subsequent motions as a reasonable exercise of
judicial discretion designed to discourage frivolous motions).
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293. See, e.g., United States v. City of Garland, 124 F. Supp. 2d 442 (N.D. Tex.
2000) (concluding that federal magistrate has authority to compel mayor and city
council member to attend court-ordered mediation, and further holding that such at-
tendance was not in violation of Texas Open Meetings Act because mediation is not a
“meeting” as defined by the Act).
294. See, e.g., Marion County Jail Inmates v. Sheriff Anderson, No. IP 72-424-C B/
S, 2003 WL 22425020, at *1 (S.D. Ind. Mar. 19, 2003) (refusing to compel mediation
despite acknowledging that plaintiff’s complaints about prison overcrowding were
problems of “enormous magnitude and grave consequence,” reasoning that “[c]ourts
do not conduct town meetings, to which ‘all interested persons’ are invited to attend,
to resolve public issues; that approach better serves the needs and interests of the
legislative and executive branches.”).
295. 590 N.W.2d 556 (Iowa Ct. App. 1999). See also Ishola v. Ishola, No. C3-99-
1625, 2000 WL 310544, at *1 (Minn. Ct. App. Mar. 28, 2000) (finding that, absent
evidence that the district has a mandatory visitation expediter program, the court is
precluded from “add[ing]” mandatory visitation mediation provisions to a judgment
and decree memorializing the parties’ oral stipulation, where the parties’ agreement
did not address mediation); Mitchell v. Mitchell, No. M2001-01609-COA-R3-CV, 2003
WL 21051742 (Tenn. Ct. App. May 12, 2003) (reversing trial court order compelling
mediation of all motions); Chillari v. Chillari, 583 S.E.2d 367 (N.C. Ct. App. 2003)
(vacating award of custody to wife where husband had not waived mediation required
by statute and trial court failed to justify its failure to compel mediation).
296. 177 F.3d 593 (7th Cir. 1999).
297. 734 So. 2d 1133 (Fla. Dist. Ct. App. 1999).
298. See, e.g., Gleicher v. Gleicher, 756 N.Y.S.2d 624 (N.Y. App. Div. 2003) (af-
firming court award of child support where husband waived any argument concerning
mediation obligation and consented to court jurisdiction).
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B. Contractual Obligations
299. See, e.g., Magann v. Magann, 848 So. 2d 496 (Fla. Dist. Ct. App. 2003) (re-
manding for final judgment despite unfulfilled mediation obligation where party op-
posing judgment had previously refused on numerous occasions to participate in
mediation); Schuller v. Schuller, No. C4-02-1242, 2003 WL 282396 (Minn. Ct. App.
Feb. 11, 2003) (finding that failure of prevailing party to first participate in mediation
as required by the parties’ stipulated judgment and decree is insufficient basis to set
aside custody modification on appeal where record suggested losing party failed to
participate in mediation, unless opposing party paid all of the mediator’s fees con-
trary to the terms of the stipulated mediation agreement).
300. No. 02-3424, 2003 WL 22138999 (10th Cir. Sept. 17, 2003). See also Pines v.
Killingsworth, No. D039976, 2003 WL 22251408 (Cal. Ct. App. Oct. 2, 2003) (finding
no error in granting summary judgment before parties completed previously ordered
mediation).
301. See, e.g., Signature Combs, Inc. v. United States, No. Civ. 98-2968-00-2245,
2003 WL 22071165 (W.D. Tenn. June 18, 2003) (rejecting defendant’s assertion that
an agreement to mediate renders a party exempt from Rule 37 sanctions for failure to
comply with procedural rules); Palmer v. Erlandson, No. C8-99-891, 2000 WL 2621
(Minn. Ct. App. Dec. 27, 1999) (holding that participation in settlement discussions
and court-ordered mediation does not estop defendant from seeking dismissal of a
medical malpractice lawsuit based on plaintiffs’ failure to serve affidavit of expert
identification).
302. 111 F. Supp. 2d 633 (E.D. Pa. 2000). See also Waterman v. Waterman, No.
FA-01-07-26150, 2003 WL 1962782 (Conn. Super. Ct. Apr. 3, 2003) (compelling medi-
ation of post-judgment mutual mistake allegation in dispute over QDRO benefits in
divorce case).
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A stay of proceedings is not the only risk; the courts also have dis-
missed claims, with303 or without prejudice.304
In a dozen cases, courts evaluated whether participating in medi-
ation was a condition precedent to arbitration. Both the First and
Eleventh Federal Circuit Courts of Appeals emphasized that the
FAA’s policy in favor of arbitration does not operate without regard to
the wishes of the contracting parties.305 Where parties agree to con-
ditions precedent before arbitration can take place, and those condi-
tions are not fulfilled, in effect “the arbitration provision has not been
activated and the FAA does not apply.”306 In a nutshell, be careful
what you wish for. If you draft a multi-step dispute resolution clause
requiring mediation before accessing arbitration or litigation, be ad-
vised that courts will likely enforce the mediation obligation.307
C. Statutory Obligations
In addition to private contractual obligations, statutory require-
ments to mediate also resulted in considerable litigation. For exam-
ple, in Rutter v. Carroll’s Foods of the Midwest, Co.,308 the court
found the plaintiff’s failure to either mediate or obtain a statutorily
required mediation release to be an unfulfilled condition precedent to
an Iowa nuisance suit. Emphasizing that the failure did not affect
303. See, e.g., Jones v. Trawick, No. 98-6352, 1999 WL 273969 (10th Cir. May 5,
1999) (affirming dismissal of lawsuit for, among other things, failing to attend or par-
ticipate in court-ordered mediation); Gray and Assocs., LLC v. Ernst & Young LLP,
No. 24-C-02-002963, 2003 WL 23497702 (Md. Cir. Ct. June 11, 2003) (dismissing com-
plaint and ordering compliance with mediation/arbitration provisions of parties’ con-
tract). But cf. Piper v. Shakti, Inc., 856 So. 2d 144 (La. Ct. App. 2003) (remanding to
consider propriety of default judgment entered after failure to attend mediation con-
ference and subsequent hearings).
304. See, e.g., Mortimer v. First Mount Vernon Indus. Loan Assoc., No. Civ. AMD
03-1051, 2003 WL 23305155 (D. Md. May 19, 2003) (dismissing claim without
prejudice for failure to mediate); Tunnell-Spangler & Assocs., Inc. v. Katz, No. 3030
100380, 2003 WL 23168817 (Pa. Com. Pl. Dec. 31, 2003) (dismissing defendant’s mo-
tion to dismiss without prejudice based on unfulfilled obligation to mediate).
305. HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41 (1st Cir. 2003) (af-
firming denial of motion to compel arbitration where parties’ contract required a re-
quest for mediation as a condition precedent to arbitration); Kemiron Atl., Inc. v.
Aguakem Int’l, Inc., 290 F.3d 1287 (11th Cir. 2002) (ruling that the parties’ failure to
request mediation, which was condition precedent to arbitration under the parties’
contract, precluded enforcement of the arbitration clause).
306. Kemiron, 290 F.3d at 1291.
307. But cf. Pierce v. Kellogg, Brown & Root, Inc., 245 F. Supp. 2d 1212 (E.D.
Okla. 2003) (compelling arbitration where the dispute resolution program required
mediation only if both parties agreed). See also supra notes 176–81, 196–97 and ac- R
companying text (discussing unconscionability challenges to enforcement of media-
tion/arbitration clauses).
308. 50 F. Supp. 2d 876 (N.D. Iowa 1999).
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D. Consequences of Non-Participation
309. Id. at 883. But cf. Beckman v. Kitchen, 599 N.W.2d 699 (Iowa 1999) (conclud-
ing that there had been no rescission of a contract of sale triggering a mandatory
mediation obligation under the Iowa Farm Mediation Statute).
310. Halcomb v. Office of the Senate Sergeant-at-Arms of U.S. Senate, 209 F.
Supp. 2d 175 (D.D.C. 2002) (dismissing without prejudice federal employee’s action
alleging retaliation in violation of the Congressional Accountability Act, after conclud-
ing that the Act’s counseling and mediation requirements are jurisdictional prerequi-
sites to filing a retaliation lawsuit).
311. Preferred M.S.O. of Am.-Austin L.L.C. v. Quadramed Corp., 85 F. Supp. 2d
974 (C.D. Cal. 1999) (compelling participation in ADR, including possibility of media-
tion option, pursuant to Y2K Act as precondition for suit).
312. Darling’s v. Nisson N. Am., Inc., 117 F. Supp. 2d 54 (D. Me. 2000) (finding
that claims stated by a franchisee pursuant to the Motor Vehicle Dealer’s Act were
ripe for judicial review, but nonetheless dismissing case without prejudice where
plaintiff failed to make a written demand for mediation as required by the Act as a
precondition for filing court action).
313. Ingram v. Knippers, 72 P.3d 17 (Okla. 2003) (concluding that district court
improperly denied grandparents’ visitation motion, where statute required that medi-
ation be ordered before court decision).
314. See, e.g., Ocasio v. Froedtert Mem’l Lutheran Hosp., 646 N.W.2d 381 (Wis.
2002) (concluding that filing of medical malpractice lawsuit before expiration of
mandatory mediation period does not require dismissal of the action); Kent Feeds,
Inc. v. Manthei, 646 N.W.2d 87 (Iowa 2002) (finding that mandatory mediation provi-
sion of statute governing farmer-creditor disputes does not prevent creditor from
seeking personal judgment against guarantor where guarantees at issue are not se-
cured by agricultural property as defined by the statute).
315. See, e.g., In re A.J.L and E.M.L., 108 S.W. 3d 414 (Tex. Ct. App. 2003) (af-
firming denial of mediation as moot where court properly determined that moving
party lacked standing to bring action); Tires Inc. of Broward v. Goodyear Tire & Rub-
ber Co., 295 F. Supp. 2d 1349 (S.D. Fla. 2003) (granting defense motion to stay ap-
pointment of mediator where court dismissed most of plaintiff’s case with leave to
amend). See also Hillock v. Wyman, No. Civ.A. CV-01-303, 2003 WL 21212014 (Me.
Super. Ct. May 9, 2003) (finding no actionable breach of contract for failing to mediate
when plaintiff fails to state a claim in the underlying contract dispute).
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316. See, e.g., Daugherty v. Dutiel, No. 02CA16, 2003 WL 21419178 (Ohio Ct. App.
June 18, 2003) (reversing dismissal of lawsuit as improper sanction for failure to me-
diate where no firm mediation date had been set); Spickler v. Spickler, No. 01-C0-52,
2003 WL 21518732 (Ohio App. June 30, 2003) (affirming refusal to find mother in
contempt for refusal to mediate as required by separation agreement where terms of
the mediation obligation were ambiguous).
317. See, e.g., Environmental Contractors, LLC v. Moon, 983 P.2d 390 (Mont.
1999) (finding that dismissal of appeal was not warranted where party satisfied ap-
pellate mediation participation requirements by being available by telephone and
having his attorney physically present at the mediation); Nat’l Marketing Ass’n. v.
Broadwing Telecomm. Inc., No. 02-2017-CM, 2003 WL 1608416 (D. Kan. Mar. 26,
2003) (finding that plaintiff’s alleged failure to seek mediation prior to initiating law-
suit was not a basis to dismiss all claims where plaintiff timely mailed mediation
request to defendant’s principal place of business, rather than notice address listed in
parties’ royalty agreement).
318. 583 S.E.2d 889 (Ga. Ct. App. 2003), cert. denied (Oct. 20, 2003).
319. See, e.g., Lucas Automotive Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275
F.3d 762, 769 (9th Cir. 2001) (affirming district court imposition of sanctions for de-
fendant’s failure to attend mediation due to “incapacitating headache,” where defen-
dant failed to notify parties beforehand of his nonappearance). See also Donohow v.
Klebar, No. 02-0656, 2003 WL 147702, *3 (Wis. Ct. App. Jan. 22, 2003), review dis-
missed, 657 N.W.2d 710 (Wis. Feb. 24, 2003) (affirming trial court modification of
custody and quoting from party brief emphasizing that party losing custody was “the
party to refuse to cooperate in mediating issues in controversy”). But cf. In re Bryan,
61 P.3d 641 (Kan. 2003) (noting that whether or not attorney accepted offer to medi-
ate is irrelevant in disciplinary action against attorney).
320. See, e.g., Peoples Mortgage Corp. v. Kansas Bankers Surety Co., 62 F.App’x.
232 (10th Cir. 2003) (affirming award of attorneys’ fees against insurance company
for failure to pay a claim without just cause or excuse, in part for insurer’s unreasona-
ble refusal to participate in mediation at which the parties discussed the basis for the
claim); Segui v. Margrill, 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding
$1,484 in attorneys’ fees and mediator fees as a sanction for the party not attending
the mediation).
321. See supra notes 305–06, 310. See also Jermar, Inc. v. L.M. Communications R
II of S.C., Inc., No. 98-1279, 1999 WL 381817 (4th Cir. June 11, 1999) (affirming trial
court grant of default judgment based on failure to participate in mediation but re-
manding to consider sanctions).
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322. See Himes v. Himes, 833 A.2d 1124 (Pa. Super. Ct. 2003) (affirming criminal
contempt conviction of divorce attorney for his failure to appear on behalf of his client
at a child custody mediation).
323. California, Texas, and Florida accounted for fifty-two percent of all state
court fee and cost cases (38, 21, 12 opinions, respectively), which is nearly twice the
percentage (28%) of the entire database that cases from those states represent.
324. Ayers v. Duo-Fast Corp., 779 So. 2d 210 (Ala. 2000); Fernau v. Rowdon, 42
P.3d 1047 (Alaska 2002); Foxgate Homeowners’ Ass’n, Inc. v. Bramalea California,
Inc., 25 P.3d 1117 (Cal. 2001); Hill v. Metropolitan. Dist. Comm’n, 787 N.E.2d 526
(Mass. 2003); In re Marriage of Moss, 977 P.2d 322 (Mont. 1999).
325. See, e.g., In re Atl. Pipe Corp., 304 F.3d 135 (1st Cir. 2002); Uy, M.D. v. Bronx
Mun. Hosp. Ctr., 182 F.3d 152 (2d Cir. 1999); Spark v. MBNA Corp., 48 F.App’x. 385
(3d Cir. 2002); Brinn v. Tidewater Transp. Dist. Comm’n., 242 F.3d 227 (4th Cir.
2001); Mota v. Univ. of Tex. Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001); Jaynes v.
Austin, 20 F.App’x. 421 (6th Cir. 2001); Connolly v. Laidlaw Indus., Inc., 233 F.3d 451
(7th Cir. 2000); Brisco-Wade v. Carnahan, 297 F.3d 781 (8th Cir. 2002); Lucas Auto.
Eng’g v. Bridgestone/Firestone, Inc., 275 F.3d 762 (9th Cir. 2001); Jones v. Trawick,
No. 98-6352, 1999 WL 273969 (10th Cir. May 5, 1999); Smalbein ex rel Estate of
Smalbein v. City of Daytona Beach, 353 F.3d 901 (11th Cir. 2003).
326. See, e.g., Dumas v. Tyson Foods, Inc., 139 F. Supp. 2d 1243 (N.D. Ala. 2001)
(approving claim by Title VII plaintiff for mediation expenses); Carrabba v. Randalls
Food Mkts., Inc., 191 F. Supp. 2d 815 (N.D. Tex. 2002) (awarding attorneys $6,904.75
for fees paid to mediators in connection with the two court-ordered mediations in ER-
ISA class action case); Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1313 (M.D. Fla.
2001) (awarding $5,746.73 in mediation and arbitration expenses to prevailing party
in Fair Labor Standards Act case).
327. In re Marriage of Ceilley, No. 02-0434, 662 N.W.2d 374, 2003 WL 555607
(Iowa Ct. App. Feb. 28, 2003) (affirming without analysis trial court refusal to award
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wife attorney fees for mediation); Alfonso v. Aufiero, 66 F. Supp. 2d 183 (D. Mass.
1999) (refusing to award fees to prevailing civil rights claims plaintiffs for 6.7 hours of
time spent by counsel on unsuccessful mediation); Earl Anthony Bowling, Inc. v. Cor-
rie Dev. Corp., No. A098024, 2002 WL 31895793 (Cal. Ct. App. Dec. 30, 2002) (af-
firming trial court award of over $300,000 in fees and costs to prevailing plaintiff in
dispute over sale of bowling alley, including denial without explanation of $1,208.33
in mediation fees).
328. See, e.g., Glover v. Heart of Am. Mgmt. Co., No. Civ.A. 98-2125-KHV, 1999
WL 450895 (D. Kan. May 5, 1999) (refusing to award attorneys fees for time spent
faxing, but otherwise supporting notion that meeting with client for preparation in
advance of mediation is compensable); Lintz v. Am. Gen. Fin., Inc., 87 F. Supp. 2d
1161 (D. Kan. 2000) (concluding that time spent in unsuccessful mediation and settle-
ment efforts is compensable, but reducing claim of 34.3 hours to 20.1 hours where
moving party failed to meet burden that all claimed hours were reasonable); Martinez
v. Hodgson, 265 F. Supp. 2d 135 (D. Mass. 2003) (awarding attorney fees to prevailing
party, including mediation costs, except those claimed for preparation done the day
after mediation actually took place).
329. 977 P.2d 508 (Ut. App. 1999).
330. Id. at 516.
331. No. 03A01-9807-CH-00210, 1999 WL 817528 (Tenn. App. Oct. 13, 1999).
332. Id. at *8.
333. Id.
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334. Id.
335. No. CV-97-1501-ST, 1999 WL 375584 (D. Or. Mar. 11, 1999).
336. 42 USC § 1988 (Proceedings in Vindication of Civil Rights). Section (b) in
relevant part provides that “[i]n any action or proceeding to enforce . . . [civil rights]
. . . the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorneys’ fee as part of the costs, except that in any action
brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity such officer shall not be held liable for any costs, including attorneys’ fees,
unless such action was clearly in excess of such officer’s jurisdiction.”
337. Frenz v. Quereshi, No. CV-97-1501-ST, 1999 WL 375584, at *6 (D. Or. Mar.
11, 1999).
338. Id. at *6.
339. In re Williams, No. C-5-52-237, 2000 WL 1920038, at *6 (Minn. Dist. Ct. Apr.
14, 2000), aff’d in part, rev’d in part, 631 N.W.2d 398 (Minn. Ct. App. 2001) (affirming
that private agreements do not alter the court’s discretion to tax the costs of media-
tion, but refusing to do so where taxation would not be supportive of the mediation
process because it conflicts with the parties’ prior agreement to split costs); J.P.
Sedlak Ass’n. v. Conn. Life & Casualty Ins. Co., No. 3:98 CV-145-DFM, 2000 WL
852331 (D. Conn. Mar. 31, 2000) (reducing fee award by $6,678.69 because prevailing
plaintiff may not seek reimbursement for its share of private mediation where the
parties had previously agreed to bear their own costs).
340. See, e.g., Brown v. Capital Mgmt. Co., No. Civ.A.99C-10-210RRC, 2002 WL
338130 (Del. Super. Ct. Feb. 28, 2002), aff’d, 813 A.2d 1094 (Del. 2003) (disallowing
taxation of costs for mediation in favor of prevailing party where local court rule re-
quires that mediation costs be shared); Serna v. City of San Antonio, No. CIVASA-98-
CV-0161-EP, 1999 WL 33290617 (W.D. Tex. July 20, 1999) (finding that mediation
expenses not recoverable as costs, where the referring order said to split equally).
341. See, e.g., Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th
Cir. 2001) (finding that although Title VII supports award of investigation fees as a
reasonable out-of-pocket expense for a prevailing plaintiff, mediation costs do not fall
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within the limited category of expenses taxable under Title VII). See also McKenzie v.
EAP Mgmt. Corp., No. 98-6062-CIV, 1999 WL 1427707 (S.D. Fla. 1999) (refusing to
tax mediation fees in favor of prevailing defendant in Title VII case because such fees
are not taxable under 28 USC § 1920).
342. 297 F.3d 781 (8th Cir. 2002).
343. Id. at 782.
344. Walker v. Bozeman, 243 F. Supp. 2d 1298 (N.D. Fla. 2003) (refusing to tax a
mediator’s fee against the losing defendant where mediation was part of overall set-
tlement process in which the court concluded defendant obviously tried, but plaintiff
refused (based on the offers of judgment and “from the parties respective positions on
damages at trial”) to settle on reasonable terms).
345. Smith v. Vill. of Ruidoso, 994 P.2d 50 (N.M. Ct. App. 1999) (reversing trial
court award of mediation costs to prevailing plaintiff and suggesting such awards
would be appropriate in private mediation only if the parties had agreed to permit
award of mediator’s fee expense as a cost of litigation). Compare Cabral v. YMCA of
Redlands, No. E028654, 2002 WL 399480 (Cal. Ct. App. Mar. 15, 2002) (affirming
taxation of fees charged by the mediator where substantial evidence suggested plain-
tiff had agreed said fees would be recoverable as costs of suit if mediation failed and
defendants were the prevailing parties at trial).
346. See, e.g., People’s Mortgage Corp. v. Kan. Bankers Surety Co., 62 F.App’x.
232 (10th Cir. 2003) (affirming award of attorneys fees against insurance company for
failure to pay a claim without just cause or excuse, in part for insurer’s unreasonable
refusal to participate in mediation at which the parties discussed the basis for the
claim); Segui v. Margrill, 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding
$1,484 in attorneys’ fees and mediator fees as a sanction for the party not attending
the mediation.).
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347. Reliance Nat’l Ins. Co. v. B. Von Paris & Sons, Inc., 153 F. Supp. 2d 808 (D.
Md. 2001).
348. Hughes v. Albertson’s, Inc., 803 So. 2d 1150 (La. Ct. App. 2001).
349. Jaynes v. Austin, 20 F.App’x. 421 (6th Cir. Sept. 25, 2001) (awarding attorney
fees as sanction for attorney adding settlement terms post-mediation).
350. Toon v. Wackenhut Corrections Corp., 250 F.3d 950 (5th Cir. 2001) (reducing
attorney fees provided for by contingency fee agreement).
351. In re Anonymous, 283 F.3d 627 (4th Cir. 2002). See infra notes 396–397 and R
accompanying text.
352. See, e.g., Fini v. Remington Arms Co., No. CIV. A. 97-12-SLR, 1999 WL
825604, at *8 (D. Del. Sept. 24, 1999) (refusing to award sanctions based on “conduct
to which the court was not privy and which probably reflects the conduct seen with
most unsuccessful mediations); In re Marriage of Hodges, Nos. D034701, D036624,
2001 WL 1452210 (Cal. Ct. App. 2001) (reversing $25,000 attorney fee sanction after
finding error in trial court taking of evidence from the mediator as to a party’s willing-
ness to settle).
353. Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593 (7th Cir. 1999) (ruling
that a party has no obligation to mediate before District Court Judge’s law clerk and
failure to participate in such mediation was impermissible basis for attorneys’ fee
award reduction).
354. No. B158110, 2003 WL 22022025 (Cal. Ct. App. Aug. 28, 2003) (concluding
that even if there had been evidence of bad faith conduct in mediation—which there
was not—it would not be sufficient to justify awarding all attorneys’ fees and costs
incurred by the other beneficiaries).
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355. Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. § 12205 (2000); Indi-
viduals with Disabilities Education Act (Education of the Handicapped Act) (IDEA)
20 U.S.C. § 1415(i)(3)(B) (2000).
356. No. 99-C-7268, 2001 WL 128242 (N.D. Ill. Feb. 9, 2001). See also Lucas v.
White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999) (awarding prevailing plaintiffs attorneys’
fee under the Equal Access to Justice Act in prisoner’s rights case resolved after medi-
ation and direct negotiation).
357. See also Folsom v. Heartland Bank, No. Civ. A 98-2308-GTV, 2000 WL
718345 (D. Kan. May 18, 2000) (awarding attorneys’ fee to prevailing party in media-
tion of Truth-in-Lending Act claims).
358. 349 F.3d 469 (7th Cir. 2003).
359. Id. at 478.
360. Edie F. v. River Falls Sch. Dist., 243 F.3d 329 (7th Cir. 2001) (denying fees
under IDEA); Robinson v. Elida Local Sch. Dist. of Educ., No. 98-3056, 1999 WL
97245 (6th Cir. Feb. 19, 1999) (finding no prevailing party under IDEA based on me-
diated settlement).
361. See, e.g., Uy, M.D. v. Bronx Muni. Hosp. Ctr., 182 F.3d 152, 155 (2d Cir. 1999)
(using details of defendant’s conduct in mediation as basis to reverse trial court disal-
lowance of trial preparation on grounds that plaintiff should have more vigorously
pursued settlement); Messina v. Bell, 581 S.E.2d 80 (N.C. Ct. App. 2003) (affirming
an award of attorneys’ fees to the prevailing plaintiff in part because of the trial
court’s careful review of all settlement proposals made, including mediation offers);
Porterfield v. Goldkuhle, 528 S.E.2d 71 (N.C. Ct. App. 2000) (finding abuse of discre-
tion in judge’s failure to make findings about settlement offers).
362. No. 6:01CV1132ORL19KRS, 2003 WL 21499011 (M.D. Fla. June 12, 2003).
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VII. SANCTIONS
Mediation participants sought sanctions for the adverse party’s
or counsel’s conduct during mediation in 117 opinions. Courts im-
posed sanctions in nearly one-half of those cases (53). The litigation
over sanctions was spread evenly among the different types of cases.
Parties sought sanctions in thirty-one contract/commercial cases,
twenty-nine personal injury cases, twenty-three family law cases and
fifteen employment cases. Of the successful sanctions cases, thirteen
were commercial/contract cases, eight employment, thirteen personal
injury and only eight family law cases. The number of cases raising
sanctions issues has more than doubled over the five-year period
from thirteen in 1999 to twenty-nine opinions in 2003 but seems to
have leveled off over the last three years of the database. In the five-
year period, 2001 was the high point with thirty-two cases, but in
2002 the number dropped to twenty-one cases.
370. No. A-03596, 2002 WL 343452 (Cal. App. Mar. 6., 2002).
371. See, e.g., Ghahramani v. Guzman, 768 So. 2d 535 (Fla. Dist. Ct. App. 2000)
(reversing trial court and awarding fees to prevailing party in enforcement action
based on prevailing party fee provision contained in the parties’ original contract);
Nazimuddin v. Woodlane Forest Civic Ass’n., Inc., No. 09-00-210 CV, 2001 WL 62899
(Tex. App. Jan. 25, 2001) (affirming award of $13,106.75 in attorneys’ fees for success-
ful enforcement action); Lazy Flamingo U.S.A., Inc. v. Greenfield, 834 So. 2d 413 (Fla.
Dist. Ct. App. 2003) (affirming denial of enforcement fees where the mediated settle-
ment contained no provision for such fees, but remanding to determine propriety of
fee award under court rule authorizing sanctions, including attorneys’ fees, against a
party who fails to perform under a court-ordered mediation settlement agreement).
372. See, e.g., Lucas Automotive Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275
F.3d 762, 769 (9th Cir. 2001) (affirming district court imposition of sanctions for de-
fendant’s failure to attend mediation due to “incapacitating headache,” where defen-
dant failed to notify parties beforehand of his nonappearance); Tex. Parks and
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Wildlife Dep’t v. Davis, 988 S.W.2d 370 (Tex. App. 1999) (rejecting trial court mone-
tary sanctions against Department for alleged failure to negotiate in good faith in
court-ordered mediation, noting that while Department filed an objection to the medi-
ation referral (which the trial court overruled), it did attend the mediation and even
made an offer of settlement); Columbus Antiques & Decorative Ctr., Inc., v. Waste
Mgmt, Inc., No. B161399, 2003 WL 21757895, at *2 (Cal. Ct. App. July 31, 2003)
(assessing sanctions in part for failure to attend a mediation).
373. 844 So. 2d 820, 821 (Fla. Dist. Ct. App. 2003) (awarding attorneys’ fees and
mediators’ fees as a sanction for the party not attending the mediation).
374. Id. See also Reliance Nat’l Ins. Co. v. B. Von Paris & Sons, Inc., 153 F. Supp.
2d 808, 809–10 (D. Md. 2001) (awarding sanctions for not sending a principal with
settlement authority to the mediation).
375. For extended discussion of the bad faith issue, see generally John Lande, Us-
ing Dispute System Design Methods to Promote Good Faith Participation in Court-
Connected Mediation Programs, 50 UCLA L. REV. 69 (2002) (suggesting procedural
requirements to assure a fair process). See also Maureen A. Weston, Check on Partici-
pant Conduct in Compulsory ADR: Reconciling the Tension in the Need for Good-Faith
Participation, Autonomy, and Confidentiality, 76 IND. L.J. 591, 594 (2001) (arguing
for a good faith standard); James J. Alfini, Settlement Ethics and Lawyering in ADR
Proceedings: A Proposal to Revise Rule 4.1, 19 N. ILL. U. L. REV. 255, 256 (1999) (argu-
ing for an ethical rule precluding lawyers from making or relying on false statements
in negotiations); Kimberlee K. Kovach, Good Faith in Mediation—Requested, Recom-
mended, or Required? A New Ethic, 38 S. TEX. L. REV. 575, 620 (1977) (arguing for a
good faith standard).
376. No. C-3-00-462, 2003 WL 21796381, at *5–6 (S.D. Ohio) (granting mediation
sanctions for mediating in bad faith). But cf. Stoehr v. Yost, 765 N.E.2d 684 (Ind.
App. 2002) (affirming trial court determination that insurer did not act in bad faith
simply by failing to tell plaintiff in advance of mediation that insurer would not offer
money to settle the claim).
377. Ferrero v. Henderson, No. C-3-00-462, 2003 WL 21796381, at *5–6 (S.D.
Ohio).
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378. See Nick v. Morgan’s Food, Inc., 270 F.3d 590, 594–95 (8th Cir. 2001) (holding
that Fed. R. Civ. P. 16 authorizes fines as a sanction for failing to send a corporate
representative with settlement authority to the mediation).
379. See supra notes 348–56 and accompanying text. See also Tavares v. Tavares, R
No. CO41169, 2003 WL 122599, at *1 (Cal. Ct. App. Jan. 10, 2003) (awarding $500
attorneys’ fees as sanction); Nazimuddin v. Woodlane Forest Civic Ass’n Inc., No. 09-
00-210, 2001 WL 62899 (Tex. App. Jan. 25, 2001) (awarding attorneys’ fees for costs
incurred to enforce mediated settlement agreement).
380. Mitchell v. Kreitman, No. B-156715, 2002 WL 31525395 (Cal. Ct. App. Nov.
14, 2002) (awarding $3,500 for cost of mediator, $2,000 for attorneys’ fees and $1,750
for attorneys fees incurred in bringing the enforcement/sanctions motion).
381. Guevara v. Sahoo, No. 05-00-01086-CV, 2001 WL 700517 (Tex. App. June 22,
2001) (ordering apology in addition to attorneys’ fees and mediation fees for attorney’s
note that constituted “egregious conduct”).
382. Johnson v. Webb, 740 N.Y.S.2d 892 (N.Y. App. Div. 2002) (granting five extra
days of visitation as a remedy for the failure to attend mediation sessions in a family
law matter).
383. Zdravkovic v. United States, No. 01-C-5893, 2002 WL 31744668, at *4 (E.D.
Ill. Dec. 9, 2002) (ordering the lawyer to read the Standards for Professional Conduct
Within the Seventh Federal Judicial Circuit and warning that that future misconduct
might be referred for disciplinary proceedings).
384. Himes v. Himes, 833 A.2d 1124 (Pa. Super. Ct. 2003) (affirming a divorce
attorney’s criminal contempt conviction for failure to appear on behalf of his client at
a child custody mediation).
385. 3 P.3d. 198, 203 (Wash. Ct. App. 2000) (affirming trial court sanction of dis-
missal for failure to prosecute).
386. See also Hopkins v. Harrell, 574 S.E.2d 747, 750 (S.C. Ct. App. 2003) (dis-
missing action because plaintiff failed to attend mediation); Ptacek v. Minn. Fire and
Casualty Co., No. 01-2864, 2002 WL 523802, at *3 (Wis. Ct. App. Apr. 9, 2002) (dis-
missing plaintiff’s claim for failure to prosecute including, among other matters, fail-
ure to get an order to mediate); Newton v. Nicholson, No. COA01-300, 2002 WL
372490, at *2–3 (N.C. Ct. App. Mar. 5, 2002) (dismissing plaintiff’s complaint for dis-
covery violations and failure to attend the mediation); C.A. Walker, Inc. v. D. H. Ma-
sonry, No. 14-00-01174-CV, 2000 WL 1827561 (Tex. App. Dec. 14, 2000) (dismissing
for failure to comply with order to name acceptable mediators).
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396. See, e.g., In re Marriage of Van Horn, No. HO24181, 2003 WL 21802273, at *1
(Cal. Ct. App. Aug. 6, 2003) (refusing to grant sanctions for attorneys’ fees for issuing
subpoena on mediator in violation of contract and Cal. Evid. Code 1119 and 1121);
Yacht Club Southeastern, Inc. v. Sunset Harbour N. Condo. Ass’n, Inc., 843 So. 2d
917, 918 (Fla. Dist. Ct. App. 2003) (sending a letter to association members was not a
violation of mediation confidentiality warranting sanctions, but a communication
among the real parties at interest in the lawsuit); Massey v. Beagle, 754 So. 2d 146,
146 (Fla. Dist. Ct. App. 2000) (affirming without comment a trial judge’s decision not
to sanction a party for an alleged breach of mediation confidentiality).
397. See, e.g., Lyons v. Booker, 982 P.2d 1142, 1143 (Utah Ct. App. 1999) (admon-
ishing counsel and warning about more serious sanctions for repeat violation of medi-
ation confidentiality requirements).
398. See, e.g., Lawson v. Brown’s Day Care Ctr., Inc., 776 A.2d 390, 394 (Vt. 2001)
(holding that, absent a finding of bad faith, it was improper to sanction attorney for
violation of mediation confidentiality).
399. 250 F.3d 950 (5th Cir. 2001).
400. Id. at 954.
401. 25 F.App’x. 584 (9th Cir. 2001).
402. Id.
403. Commercial Union Ins. Co. v. Me. Employers Mut. Ins. Co., 794 A.2d 77 (Me.
2002); Ex parte Mountain Heating & Cooling, Inc., 867 So. 2d 1112 (Ala. 2003); Homes
of Legend, Inc. v. McCollough, 776 So. 2d 741 (Ala. 2000); Kamaunu v. Kaaea, 57 P.3d
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428 (Haw. 2002); Karl Storz Endoscopy-Am., Inc. v. Integrated Med. Sys., Inc., 808 So.
2d 999 (Ala. 2001); Lee v. YES of Russellville, Inc., 784 So. 2d 1022 (Ala. 2000); Stew-
art v. Covill and Besham Constr., LLC, No. 03-003, 2003 WL 22001180 (Mont. Aug.
25, 2003).
404. Bombardier Corp. v. Nat’l R.R. Passenger Corp., 333 F.3d 250 (D.C. Cir.
2003); Him Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41 (3rd Cir. 2003); Taylor
v. Prudential Ins. Co. of Am., 91 F.App’x 746 (3d Cir. 2003); In re Anonymous, 283
F.3d 627 (4th Cir. 2002); Inlandboatmans Union of the Pac. v. Dutra Group, 279 F.3d
1075 (9th Cir. 2002); Kemiron Atlantic, Inc. v. Aguakem Int’l., Inc., 290 F.3d 1287
(11th Cir. 2002); Labor/Cmty. Strategy Center v. L.A. County Metro. Transp. Auth.,
263 F.3d 1041 (9th Cir. 2001); Mirra Co., Inc. v. Sch. Admin. Dist. No. 35, 251 F.3d
301 (1st Cir. 2001).
405. See supra notes 210–28, 247–58, 270–85 and accompanying text. R
406. See infra notes 413–23 and accompanying text. R
407. See infra notes 424–26 and accompanying text. R
408. Peisner v. Paypoint Elec. Payment Sys., Inc., No. B157559, 2002 WL
31720292 (Cal. Ct. App. Dec. 4, 2002) (finding the arbitrator’s failure to compel medi-
ation pursuant to a multi-step dispute resolution clause was not a basis to vacate an
arbitral award, because even if the arbitrator had the power to order mediation, fail-
ure to do so amounted to an error of law or fact).
409. PrimeVision Health, Inc. v. Indiana Eye Clinic, No. IP00-0096-C-B/S, 2000
WL 977397 (S.D. Ind. July 13, 2000) (ruling that a dispute over an alleged mediated
settlement which purported to terminate a prior contract containing an arbitration
clause is subject to arbitration).
410. Tutu Park, Ltd. v. O’Brien Plumbing Co., Inc., 180 F. Supp. 2d 673 (D. V.I.
2002) (ruling that the order of the Territorial Court of the Virgin Islands compelling
parties to mediate while continuing indefinitely a pending summary judgment motion
hearing on arbitrability is interlocutory and unappealable; moreover, nothing in the
FAA precludes the Territorial Court’s use of extrajudicial mediation proceedings
before resolving the question of arbitrability).
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411. In re Enron Corp., No. 03 Civ. 5078(DLC), 2003 WL 22171695 (S.D.N.Y. Sept.
22, 2003) (refusing to withdraw reference of proceedings to bankruptcy court and not-
ing that judicial efficiency, as well as uniform administration of bankruptcy proceed-
ings, weigh in favor of allowing mediation process in bankruptcy court to proceed even
for claims allegedly subject to arbitration).
412. Kahn v. Chetcuti, 123 Cal. Rptr. 2d 606 (Cal. Ct. App. 2002) (holding that the
arbitrator acted within his authority by determining that the prevailing party’s act of
filing a complaint before an obligatory mediation did not bar an award of attorneys’
fees to that party pursuant to a contract clause limiting said fees “should the prevail-
ing party attempt an arbitration or court action before attempting [to] mediate”).
413. See, e.g., Fe-Ri Constr., Inc. v. Intelligroup, Inc., 218 F. Supp. 2d 168 (D.P.R.
2002) (dismissing lawsuit without prejudice to allow satisfaction of contractually re-
quired ADR, including option to elect either mediation or arbitration); Gutman v.
Baldwin Corp., No. Civ.A. 02-CV 7971, 2002 WL 32107938 (E.D. Pa. Nov. 22, 2002)
(noting with approval that employee has right to attorney during mandatory media-
tion phase); In re Orkin Exterminating Co., Inc., No. 01-00-00730-CV, 2000 WL
1752900 (Tex. App. Nov. 30, 2000) (granting writ of mandamus to enforce pre-dispute
clause which mandated four hours of mediation before being able to resort to binding
arbitration).
414. 295 F. Supp. 2d 774 (N.D. Ohio 2003).
415. Id. at 783.
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424. 75 P.3d 1276 (Mont. 2003). See also Karl Storz Endoscopy-Am., Inc. v. Inte-
grated Med. Sys., Inc., 808 So. 2d 999 (Ala. 2001) (concluded that a distributor did not
waive its right to compel arbitration by waiting for the opposing party to satisfy rea-
sonable conditions prior to contractually required mediation, which was a condition
precedent to the right to arbitrate under the parties’ agreement).
425. Stewart v. Covill & Brasham Constr., LLC, 75 P.3d 1276, 1277 (Mont. 2003).
426. 140 F. Supp. 2d 1314 (M.D. Fla. 2001). But cf. DeGroff v. MascoTech Forming
Techs.-Fort Wayne, Inc., 179 F. Supp. 2d 896 (N.D. Ind. 2001) (enforcing an arbitra-
tion obligation and rejecting the argument that the employer waived its right to en-
force arbitration by participating in EEOC conciliation efforts instead of initiating
mediation as a required pre-condition to arbitration).
427. Campbell v. Burton, 750 N.E.2d 539 (Ohio 2001); Dan Nelson Constr., Inc. v.
Nodland & Dickson, 608 N.W.2d 267 (N.D. 2000); Davis v. Horton, 661 N.W.2d 533
(Iowa 2003); Gamble v. Dollar Gen. Corp., 852 So. 2d 5 (Miss. 2003); Landis v. Physi-
cians Ins., Co., 628 N.W.2d 893 (Wis. 2001); Liberty Mut. Ins. Co. v. Wheelwright, 851
So. 2d 466 (Ala. 2002); Martin v. Howard, 784 A.2d 291 (R.I. 2001); McDole v. Alfa
Mutual. Ins. Co., 875 So. 2d 279 (Ala. 2003); Overturf v. Univ. of Utah Med. Ctr., 973
P.2d 413 (Utah 1999).
428. Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000); Lighton v. Univ.
of Utah, 209 F.3d 1213 (10th Cir. 2000); Wieters v. Roper Hosp., Inc., 58 F.App’x. 40
(4th Cir. 2003); Marcum v. Oscar Mayer Foods Corp., No. 98-3911, 1999 WL 617996
(6th Cir. Aug. 5, 1999); Ribando v. United Airlines, Inc., 200 F.3d 507 (7th Cir. 1999);
Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892 (9th Cir. 2001);
Young v. Fed. Mediation and Conciliation Serv., 66 F.App’x. 858 (Fed. Cir. 2003).
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The vast majority of these miscellaneous cases fall into three is-
sue categories: cases addressing various procedural implications of a
mediation request or participation (50); acts or omissions in media-
tion as a basis for independent claims (20); and insurance issues (12).
Cases outside these three main categories addressed such diverse is-
sues as the tax consequences of mediated settlements,429 whether
mediators are subject to veterans’ preference law,430 the propriety of
emergency motions to permit intervention in order to participate in
mediation,431 or whether a mediator’s valuation of a case should
have any bearing on a judge’s post-trial evaluation of a jury
award.432
429. Emerson v. Comm’r, 85 T.C.M. (CCH) 1044 (T.C. 2003) (affirming IRS refusal
to consider portion of mediated settlement of contract/intellectual property dispute
non-taxable compensation for injuries or personal illness, where there was no men-
tion during mediation of a claim for personal injuries, other than mediator’s sugges-
tion, subsequently acted on by the parties, to “add a personal injury claim to the suit
as a vehicle to reach settlement”). See also Dorroh v. Comm’r, T.C. Summ.Op. 2003-
93 (T.C. 2003) (holding form attachment to mediated settlement which included a
remarks section where plaintiff noted that resignation was for “medical and mental
and physical trauma” insufficient to establish that cash payments were nontaxable on
account of personal injuries or personal sickness); Henry v. Comm’r, 81 T.C.M. (CCH)
1498 (T.C. 2001) (finding settlement proceeds fully taxable where record failed to es-
tablish that payments were made on account of the loss of the plaintiffs business rep-
utation or loss of their reputation as orchid growers).
430. Young, 66 F.App’x. 858 (holding that the veterans’ preference law does not
extend to mediators for the Federal Mediation & Conciliation Service, because, by
statute mediators, are appointed without regard to the federal civil service laws).
431. Micro Elecs. Group, Inc. v. J.F. Jelenko & Co., No. 3:00CV582-MU, 2002 WL
664052 (W.D.N.C. Apr. 16, 2002) (rejecting emergency motion to intervene in media-
tion by a third party whose primary link to the dispute was the fact that he had been
deposed and had provided copious documents to one of the parties). As noted by the
court, “[t]he Court cannot dispute the validity of the assertion . . . that ‘[m]ediation is
a way to avoid litigation.’ This truism does not confirm, however, that any nonparty
who desires should participate in mediation. Allowing that would clutter and impede
many a mediation by adding the voices of individuals who may or may not have some
great or remote interest to the din.” Id. at *1.
432. Thompson v. Running Arts, Inc., No. 976181, 2000 WL 282438 at *2 n.3
(Mass. Super. Ct. Feb. 8, 2000) (“[R]eject[ing] defendant’s contention that the value of
the case placed on it by a mediator at a pretrial mediation session is something the
court may take into account in assessing the permissibility of the jury’s ultimate
award.”).
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433. Landis v. Physicians Ins. Co., 628 N.W.2d 893 (Wis. 2001) (ruling that a stat-
utorily authorized mediation request tolled all time limitations, including any appli-
cable statute of repose); Hurlburt v. OHIC Ins. Co., No. 02-0860, 2003 WL 115589
(Wis. App. Jan. 14, 2003), review denied, No. 02-0860 (Wis. 2003) (reversing dismissal
of medical malpractice lawsuit and finding that mediation request tolled statute of
limitations); Gabe Staino Motors, Inc. v. Volkswagen of Am., Inc., No. Civ. A. 99-5034,
2003 WL 22735379 (E.D. Pa. Nov. 14, 2003) (ruling that under state statute gov-
erning disputes between vehicle dealers and distributors, the statute of limitations is
tolled from service of a demand for mediation until the parties have met with the
mediator).
434. 99 Cal. Rptr. 2d 804 (Cal. Ct. App. 2000).
435. Id. at 809.
436. 224 F. Supp. 2d 54 (D.D.C. 2002). See also Mosley v. Mo. Pac. R.R. Co., 839
So. 2d 1218 (La. Ct. App. 2003), writ denied by 845 So. 2d 1055 (La. 2003) (refusing to
toll the running of an abandonment period where mediation did not take place before
the court and on the record).
437. Cristwell v. Veneman, 224 F. Supp. 2d 54, 59-60 (D.D.C. 2002).
438. 287 F. Supp. 2d 853 (W.D. Tenn. 2003).
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system until both the ninety-day Title VII filing period and the stat-
ute of limitations on the remaining claims had run by over two
years.”439
Aside from the intersection with the statute of limitations, medi-
ation participation was offered as an excuse for changed timing on a
host of procedural matters, including whether to:
• stay a trial date;440
• extend time for discovery;441
• suspend expert witness preparation;442
• accept late settlement offers under a prejudgment interest
statute;443
• permit amendment of a complaint;444
• dismiss a claim without prejudice;445 or
• delay forced sale of property.446
A number of cases considered whether mediation participation
results in waiver of certain claims or procedural rights.447 At least
discussions and court-ordered mediation does not estop defendant from seeking dis-
missal of a medical malpractice lawsuit based on plaintiffs’ failure to serve affidavit of
expert identification); In re Lance v. Melody, 108 Cal. Rptr. 2d 847 (Cal. Ct. App.
2001) (ruling that mother’s ex parte request for mediation of visitation dispute does
not constitute waiver of right to visitation hearing).
448. Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000); Tyler v. San
Antonio Elementary Sch. Dist., 253 F. Supp. 2d 1111 (N.D. Cal. 2003).
449. 789 So. 2d 73 (La. Ct. App. 2001).
450. 107 S.W.3d 910 (Ky. Ct. App. 2003).
451. Bryant v. Brownlee, 265 F. Supp. 2d 52 (D.D.C. 2003) (granting defendant
summary judgment on Title VII claims where, among many other things, plaintiff
complained that defendant did not provide sufficient time to prepare for mediation
and failed to participate in good faith, which, in plaintiff’s view, was evidence of hos-
tile work environment).
452. Roman v. Cornell Univ., 53 F. Supp. 2d 223 (N.D.N.Y. 1999) (failing to offer
mediation to a Hispanic employee is not evidence of unlawful discrimination).
453. Ribando v. United Airlines, Inc., 200 F.3d 507 (7th Cir. 1999) (rejecting fe-
male employee’s claim that she was subjected to a hostile work environment on the
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basis of sex where she was forced to appear before a mediation committee while simi-
larly situated male employees were not).
454. Lighton v. Univ. of Utah, 209 F.3d 1213 (10th Cir. 2000) (allowing employer’s
attempt to get a mediation agreement canceling employee’s contract and placing him
on probation to be offered as evidence in unsuccessful employment retaliation claim).
455. Young v. County of Fresno, No. F035660, 2002 WL 533657 (Cal. Ct. App. Apr.
10, 2002) (holding that termination of employee after she disclosed conflict of interest
involving a mediator insufficient to establish an impermissible retaliatory act).
456. 60 F. Supp. 2d 289 (D. Del. 1999), aff’d, 208 F.3d 206 (3d Cir. 2000) (granting
summary judgment for defendant employer).
457. Id. at 294–95 (rejecting plaintiff’s assertion that “because DuPont was re-
quired to have in attendance at mediation those with authority to settle the suit, that
these people must therefore have had the authority to fire plaintiff”).
458. 661 N.W.2d 533 (Iowa 2003).
459. Id. at 536.
460. 316 F.3d 280 (D.C. Cir. 2003).
461. Id. at 287.
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a claim for which damage relief can be granted.462 The Ohio Su-
preme Court has ruled that neither the school district offering a me-
diation program, nor the teacher mediator presiding at a mediation
between high school students, is entitled to claim statutory immunity
for alleged failure to report known or suspected abuse disclosed by a
student-participant in mediation.463
The California Court of Appeals found no cognizable claim for
negligent infliction of emotional distress based on allegations that a
party brought an attorney to a mediation session in violation of pre-
arranged ground rules and because he “appeared for a brief few
seconds and then abruptly departed, refusing to participate.”464
However, in Overturf v. University of Utah Medical Center,465 the
Utah Supreme Court ruled that by holding a secretive mediation in
which a settlement to distribute funds to other heirs was reached, the
University of Utah could be held to have “cooperated, colluded, and
connived with the other heirs to deprive plaintiff of her rightful share
of compensation for her daughter’s wrongful death.”466
Finally, there were claims of harm caused simply by being in me-
diation or, conversely, being denied the opportunity to mediate. In
Groover v. Huntington Marina Ass’n,467 the participation of a condo-
minium association in mediation was offered as evidence of breach of
duty to act aggressively on behalf of individual owners. The court
held that mediation was “consistent with the public policy against
‘unproductive litigation’ and favoring private dispute resolution.”468
In Gamble v. Dollar General Corp.,469 the Supreme Court of Missis-
sippi affirmed dismissal of a claim for fraud based on alleged conceal-
ment of relevant insurance coverage during mediation, where the
detriment to the moving party was framed as loss of opportunity for a
successful mediation and an unfair opportunity for the concealing
party to measure strengths and weaknesses of the moving party’s
case in mediation. According to the Gamble Court, redress for such
non-disclosure claims should have been sought under court discovery
462. Martin v. Howard, 784 A.2d 291 (R.I. 2001). But cf. Korfmann v. Kemper
Nat. Ins. Co., 685 N.Y.S.2d 282 (N.Y. App. Div. 1999) (permitting action for damages
on alleged breach of agreement to mediate).
463. Campbell v. Burton, 750 N.E.2d 539 (Ohio 2001).
464. Uhrich v. State Farm Fire & Casualty Co., 135 Cal. Rptr. 2d 131, 144 (Cal.
Ct. App. 2003), review denied (Sept. 24, 2003).
465. 973 P.2d 413 (Utah 1999).
466. Id. at 415 (remanding to permit amendment of wrongful death action com-
plaint to include claim for collusion).
467. No. G030003, 2003 WL 122788 (Cal. Ct. App. Jan. 15, 2003).
468. Id. at *4.
469. 852 So. 2d 5 (Miss. 2003).
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C. Insurance Cases
X. LESSONS LEARNED
Although our focus has been on the minute details, stepping back
and reflecting on the five years’ worth of litigated mediated issues
leads us to several conclusions about the state of the mediation pro-
cess, and leads us to make several recommendations for statute or
rule reform. In addition, we offer some “best practice” suggestions to
help readers avoid having one of their own cases end up among medi-
ation case law updates in coming years.
Ins. Co., No. Civ. A. 3.98-CV-1263-B, 1999 WL 293877 (N.D. Tex. May 4, 1999) (grant-
ing summary judgment for defendant insurer for indemnification sought on mediated
settlement because there was no obligation to defend).
475. 705 N.E.2d 956 (Ill. App. Ct. 1999). See also Gray v. State Farm Mut. Auto.
Ins. Co., 734 So. 2d 1102 (Fla. Dist. Ct. App. 1999) (remanding to determine whether
the insured waived insurer’s obligation to pay uninsured motorist claims by failing to
object at mediation); Ruddy v. State Farm Mut. Auto. Ins. Co., 596 N.W.2d 679 (Minn.
Ct. App.1999) (ruling that an insured did not forfeit an uninsured motorist claim by
settling the underlying negligence claim with the tortfeasor in mediation); McDole v.
Alfa Mut. Ins. Co., 875 So. 2d 279 (Ala. 2003) (foreclosing claims for alleged bad faith
to pay uninsured motorist benefits where payments made by the self-insured em-
ployer pursuant to a mediated settlement meant that the employer was not
“uninsured”).
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2. Confidentiality
476. See Thompson, supra note 122; Coben & Thompson, supra note 183. R
477. Welsh, supra note 2, at 86–92. R
478. See Thompson, supra note 122, at 553 n.261 (citing examples of states which R
have adopted the rescission approach, including: CAL. INS. CODE § 10089.82(c) (West
2003) (providing a three-day cooling-off period for unrepresented parties in earth-
quake insurance mediations); FLA. STAT. ANN. § 627.7015(6) (West 2003) (allowing an
insured in a property insurance mediation three days to rescind a mediated settle-
ment agreement); MINN. STAT. § 572.35(2) (2002) (providing a 72-hour cooling-off pe-
riod in debtor/creditor mediations); MINN. STAT. ANN. SPECIAL R. OF PRAC. FOR
FOURTH JUDICIAL DIST. 2.7 (West 2002) (providing a seventy-two-hour right of rescis-
sion of a mediation agreement in conciliation court).
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state to state, and even from court to court). Parties needing more
specific legal advice can and will seek it from their lawyers. The mes-
sage for lawyer representatives in mediation is more complex. One
logical response is to strategically withhold sensitive information. Of
course, this response is directly at odds with the mediator’s goal of
candid, full disclosure. In fact, parties often turn to mediators pre-
cisely because the informational poverty caused by adversarial bar-
gaining presents a significant barrier to settlement.486 A better
approach, though certainly not fool-proof,487 is to contract for confi-
dentiality protections beyond those offered by state or federal statute,
court rule, or common law.488
Second, mediators should always use an agreement to mediate
that is executed by all participants. The signed agreement helps en-
sure that there are mutual expectations regarding critical issues such
as who participates, when mediation ends, the role of the mediator,
the extent of confidentiality, and any special conditions negotiated
regarding the binding nature or enforcement of mediated settle-
ments. Given court reluctance to sanction for breaches of confidenti-
ality, parties should contract for liquidated damages or other
remedies if breach is anticipated to be a significant concern. A signed
agreement to mediate is also helpful as a “triggering mechanism” for
statutory confidentiality protections.489 Finally, the agreement can
also serve as the formal contract outlining the terms and conditions
486. See Robert A. Baruch Bush, What do We Need a Mediator for?: Mediation’s
“Value-Added” for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1, 8 (1996) (noting that
“strategic concealment” is logical but inevitably results in less than optimal
outcomes).
487. Although no case in our five-year database explicitly refused to enforce party
contractual agreements to provide more confidentiality than provided by law, as a
general principle courts are not necessarily bound by party stipulation on the law.
See generally Stipulation of Parties as to the Law, 92 A.L.R. 663 (1934).
488. See HAROLD I. ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A
PROBLEM-SOLVING PROCESS, § 5.13, 212–15 (NITA 2004).
489. For example, parties can invoke the confidentiality protections of the Uni-
form Mediation Act in several ways, including where “the mediation parties and the
mediator agree to mediate in a record that demonstrates an expectation that media-
tion communications will be privileged against disclosure.” UNIF. MEDIATION ACT
§ 3(a)(2). Moreover, at least one state, Minnesota, has a statutory scheme to protect
mediation confidentiality that on its face only applies if mediation is conducted pursu-
ant to an agreement to mediate. Minn. Stat. § 595.02, subd. 1(l) (“A person cannot be
examined as to any communication or document, including worknotes, made or used
in the course of or because of mediation pursuant to an agreement to mediate.”).
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490. The Model Standards of Conduct for Mediators was created in 1994 and ap-
proved and adopted by the American Arbitration Association, the American Bar Asso-
ciation’s Section of Dispute Resolution, and the Association of Conflict Resolution. In
April 2005, a joint committee of representatives from those organizations completed a
systematic revision of the standards, which are pending for approval by the drafting
organizations.
491. MODEL STANDARDS OF CONDUCT FOR MEDIATORS (Apr. 2005), Standard
VIII(A)(2).
492. MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994), section VIII.
493. Reporter’s Notes, Apr. 10, 2005, section V(E), http://moritzlaw.osu.edu/dr/
msoc/pdf/reportersnotes-april102005final.pdf (“For a complex case that comes to a
mediator through his or her law firm, best practice consists of making a firm-wide
conflicts check at the pre-mediation phase. By contrast, for a mediator of an interper-
sonal dispute administered by a community mediation agency who is charged with
mediating the case immediately upon referral, making an inquiry of the parties and
participants at the time of the mediation regarding potential conflicts of interest may
be sufficient.”).
494. MODEL RULES OF PROF’L CONDUCT R. 1.12(a).
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a. That the mediator’s role is not to provide them with legal rep-
resentation, but rather to assist them in reaching a voluntary
agreement;
b. That a settlement agreement may affect the parties’ legal
rights; and
c. That each of the parties has the right to seek the advice of
independent legal counsel throughout the mediation process
and should seek such counsel before signing a settlement
agreement.502
Fifth, all mediation participants should better anticipate that
rights and interests of third parties are often implicated by mediation
discussions and settlements. Mediators are not, in our view, over-
stepping their bounds by actively encouraging parties and their rep-
resentatives to consider the third-party impact of mediation
deliberations. Given the myriad ways that third-party impact cases
routinely appear in the database—insurance disputes, class actions,
public policy challenges in family cases—deliberate attention to third
party consequences should be a litmus test for effective mediator
practice. And as noted above in the statute/rule reform recommenda-
tions, special treatment of confidentiality is likely in such cases—a
matter that should be discussed, rather than assumed.
Sixth, given the significant body of duty to mediate and sanctions
opinions raising issues of attendance and authority, mediators and
lawyers should be particularly aggressive in insisting that decision-
makers with clear settlement authority be present throughout the
entire course of mediation. Partial satisfaction of this obligation is
particularly problematic. Like therapy, where the most work gets
done in the final five minutes of a 30-minute session, seasoned
mediators and mediation advocates know that the closing moments of
mediation are often the most fluid and productive. Accordingly, the
departure of a decision-maker at the eleventh hour should leave eve-
ryone in the room concerned. Rather than push to close the deal,
time might be better spent negotiating the appropriate place and
time to resume a mediation with all in attendance. In some jurisdic-
tions, phone participation may not be enough.
Seventh, all involved parties should be aware of the potential for
disconnect between the informal outline of agreements reached at
mediation and the promised delivery by lawyers of formal settlement
documents at some future point. The best option is to finalize settle-
ment documents in their entirety at the mediation table. If that is
502. Id.
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not possible, at the very least, parties should reach agreement on the
consequences for failure to generate formal documents (e.g., no agree-
ment; the informal outline becomes enforceable; a return to media-
tion). However, parties would be well advised to think twice before
resorting to one increasingly common solution to drafting problems—
having the mediator switch roles to arbitrate resolution. This hybrid
ADR process raises the specter of an ethical challenge.
Eighth, one of the most common post-mediation drafting
problems is the text of releases. The database is full of opinions
where lawyers agreed to use “standard” releases only to thereafter
litigate both the nature of claims covered and extent of release.
Mediators would be doing a particularly good service if they “reality-
tested” with vigor on this issue. If releases are really mere formali-
ties, counsel should come to the mediation with standard form re-
leases to be filled out and signed at the mediation.
Ninth, if a mediated settlement by design leaves open issues for
court decision, seek clarity on the nature of anticipated court review.
Attorneys’ fees are a common sore point. Are you asking the court to
simply determine the amount of fees to be awarded, or looking for a
decision on whether there was a “prevailing” party entitled to fees?
Finally, parties should be especially thoughtful in the drafting of
pre-dispute clauses. Including a mediation obligation in a multi-step
clause or conditioning attorneys’ fee awards on mediation participa-
tion gives the other party a legal right that courts are likely to up-
hold. Accordingly, creating the contractual obligation is unwise
unless honoring it will really be in one’s best interest.
CONCLUSION
503. Much to the chagrin of our families, coding is underway for 2004 and 2005
mediation cases.
504. See Menkel-Meadow, supra note 159, at 9 (“[W]e are beginning to see the R
development of case and statutory law and, dare I say, a ‘common law’ or ‘jurispru-
dence’ of ADR.”). See also Press, supra note 1, at 59 (“In Florida we have seen the R
development of a common law of mediation.”).
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1. Case number:
2. Year:
3. Jurisdiction:
4. Case Citation:
5. Published Opinion: Yes No
6. Level of Court: Trial Trial/Appellate
Intermediate Appellate Supreme Court
7. Type of Case: PI K/Com Family Law
Employment Estate Malpractice
Tax/Bankruptcy IDEA Other
8. Subject Matter Code:
A. Enforcement Yes No
B. Sanction Yes No
C. Duty to Mediate Yes No
D. Confidentiality Yes No
E. Ethics/Malpractice Yes No
F. Med/Arb Yes No
G. Fees Yes No
H. Cond. Precedent Yes No
I. Other Yes No
9. Confidentiality
A. Mediator Evidence: NK/NA Testified Mediation
Evidence
B. Mediation Communications: NK/NA Oral Written
C. Privilege or Rule Raised: NK/NA Upheld
Upheld in Part Not Upheld
10. Sanctions
A. Sanctions Granted: Yes No NK/NA
11. Enforcement Sub-Issues
A. Agreement in Court Order: Yes No NK/NA
B. Agreement Enforced: Yes No
Modified in Part Remand NK/NA
C. Contract Issues Raised:
i. No Agreement
a. No Meeting of the Minds Yes No
b. Agreement to Agree Yes No
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