Friday, December 30, 2011

Jurist tough on settling parties in mortgage crisis litigation

Last month, the Securities and Exchange Commission had to defend their proposed settlements to U.S. District Judge Jed S. Rakoff, who according to the Wall St. Journal is "No Mr. Nice Guy." The SEC apparently considers factors including losses suffered by investors as a result of the alleged wrongdoing in weighing how much the company benefited from the behavior and whether they will be hurt by a penalty. Judge Rakoff was skeptical why Citigroup's penalty is less than one-fifth the penalty paid by Goldman Sachs Group Inc. in its $550 million settlement with the SEC last year over a different mortgage-bond deal. Likewise, Judge Rakoff forced Bank of America and the SEC to come back with a 50-page statement and a higher penalty. He reluctantly approved the revised deal, quoting "the great American philosopher Yogi Berra" in a ruling. The judge says he saw in private practice how delays and gamesmanship made the American legal system too slow and expensive for the average person. See related stories at: and

Friday, December 16, 2011

With all troubles in EU, Germany backs mediation

German parliament, the Bundestag, voted unanimously this week in favor of a new mediation law to implement a 2008 European Union guideline for the use of mediation in civil and commercial conflict. The move gives new legal weight to mediation by creating a more defined role for mediators acting in tangent to a court proceeding. Just as in the U.S., there is apparently a long wait to get a day in court and, of course, the outcome is unsure, while the risk remains high. Mediators reportedly earn an average 250 euros an hour, but parties to disputes still save substantial court costs. See more on this international development that sounds an awful lot like what we have going on in our own backyard:

Monday, November 28, 2011

More sports mediation: Dodgers/FOX

Today begins a mediation between MLB's Los Angeles Dodgers and Fox Sports who have agreed to meet at the direction of U.S. Bankruptcy Judge Kevin Gross. As with many other recent entries on my blog, the mediation is judge-directed and early in the proceedings. Apparently, Joe Farnan, the mediator who previously negotiated a truce between the League and McCourt to sell the Dodgers, will conduct the mediation. It seems a November 30th hearing will proceed as scheduled under the current court order if a deal is not reached. The bankruptcy judge expressed interest in resolving the Dodgers case as soon as possible, so the team can prepare for the season. The Dodgers asked for permission to market their television rights as part of the team sale-- a move opposed by Fox as a contractual violation. Fox has asked the judge to dismiss the Dodgers from bankruptcy. In a pending collateral action, the Dodgers have sued Fox and Fox has sued the Dodgers. Judge Gross ordered both suits put on hold "pending the conclusion of the mediation." See posting by Bill Shaikin here:

Wednesday, November 23, 2011

NBA looking for NFL-type resolution in same Court

In apparent forum shopping, the NBA players refiled their federal antitrust lawsuit in Minnesota, seeking a settlement conference following the very same pattern of the NFL lockout. In the judge-directed mediation conducted by Magistrate Judge Arthur Boylan over several sessions with the NFL, full litigation was avoided and football season was saved. Billy Hunter is now telling NBA fans not to give up and to put pressure on the players and owners, though there has been no contact between the parties since talks broke off upon the NBA players' union dissolving. My earlier entry reported on the impasse that resulted from mediator George Cohen's efforts. See story here:

Saturday, November 12, 2011

Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases Recommends Changes

Though Florida’s mandatory mortgage mediation programs have likely fared better in achieving work-outs than statistics indicate, an Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases warns that a new wave of foreclosures will languish if additional resources are not provided to the courts. The group, created by Supreme Court Chief Justice studied results indicating that only 3.6 percent of eligible cases were actually settled in foreclosure mediation since December 2009 for homesteaded properties. Therefore, it is probable under the group's recommendations, that the mandate for a statewide managed mediation program will end, while allowing for circuits to opt in, under a potentially revised administrative order, to resolving cases in their own local programs. However, the group did say it was probably too early to conclude the mortgage mediation program was a failure and noted many difficulties were because lenders were reluctant to participate. “The public comments received provided evidence that servicers on a broad scale resisted providing representatives at mediation with full authority to settle and refused to consider more than a narrow range of settlement options, most of which were of little value to borrowers,” the report said. “Servicers had economic incentives not to settle and to keep foreclosure cases in limbo to avoid the expenses that accompany home ownership.” Apparently, a substantial number of cases apparently settled after an impasse was declared at mediation, probably because of the document exchange and counseling that occurred at mediation. This was evident in the Orange County program-- at least anecdotally-- and some permanent modifications were made after temporary agreements were reached at mediation, which is no longer an option, now that "no agreement" style orders are required. Pre-suit resolutions are also hard to develop data on to show success in lender - homeowner negotiations. Florida Bar News story: Read full report here:

Friday, November 11, 2011

Supreme Court of Florida Amends Mediation Appearance Rule

New language from the Committee on Alternative Dispute Resolution Rules and Policy filed by petition to amend rule 1.720 of the Florida Rules of Civil Procedure becomes effective on January 1, 2012. The revisions pertain to the requirements for the appearance of a party or a party’s representative at a mediation conference. The proposals were in response to the charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. This opinion linked below sets forth the changes and requires physical presence of a party unless otherwise stipulated in writing or excused by court order. A representative of an insurance carrier for any insured party who is not such carrier’s outside counsel is deemed to appear if that person has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation. Additionally, 10 days prior to appearing at a mediation conference, a notice shall be filed with the court and served, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative. Given the nature of the way things transpire today, a rude awakening could be in store for some litigants. See more in the decision and comments:

Wednesday, November 9, 2011

Mandatory Federal ADR Program Reduces Case Pendency and Encourages Early Settlement

The U.S. District Court for the Western District of Pennsylvania was once in the bottom of district courts for length of time to resolve civil cases and the amount of time to decide motions. However, that court now places in the top five percent due to the implementation of mandatory alternative dispute resolution (ADR). While the number of civil trials in the has not significantly decreased since mandatory ADR was initiated, what has decreased is time between filing and trial-- now less than a year. The program is judge directed, as opposed to being run out of the clerk's office or a separate staff. Under the procedure, lawyers have a duty to "meet and confer" prior to the initial case-management conference and to choose the form of ADR and a neutral. Litigants and lawyers are encouraged to reasonable, thoughtful and analytical in assessing cases rather than just digging into positions. According to the article below by Karen Engro, designer of the ADR program that was implemented there, cases are settling much earlier, before the deluge of discovery and motion practice. By requiring litigants to enter ADR prior to substantial discovery and the filing of summary judgments motions, the court has shifted the settlement time line substantially earlier in the litigation process. Engro reports mandatory ADR program is changing the settlement culture from settling on the courthouse steps to early resolution. More here, including statistics:

Friday, November 4, 2011

Inaugural "Aspects of ADR" Seminar

On November 11, 2011, the Alternative Dispute Resoution Committee of the Orange County Bar Association in conjunction with the Insurance and Technologies Committees, presents a unique seminar, where you will be exposed to a wide range of topics under the Alternative Dispute Resolution umbrella. Effective speakers and panelists in the areas of mediation, negotiation, advocacy within ADR and use of new technology will engage the audience and inspire spirited conversation on related topics. The seminar is not just geared to members who are mediators and arbitrators, but also to litigation practitioners whose clients utilize recognized ADR processes to resolve cases. Featured Speakers: Jay Cohen, Todd Smith, Bob Dietz, Caryn Diamond, Leslie Moore, Nancy Stuparich, Kimberly Homer, Liz McCausland, Phil Bonus Moderated by Lawrence Kolin, Founding Chair, OCBA ADR Committee Presentations: * Use of Technology in Making Effective ADR presentations – Old School v. New School * Understanding the Perspective of Insurers at Mediation * Potential Malpractice Arising from ADR * Keynote on Mediation Ethics by the ‘Dean of Mediators’ * Residential Foreclosure Mediation / Update on the RMFMP Fee: $45 (includes program and lunch) CLE approved - General 5.0, Ethics 1.0 - along with eligible CME for Certified Mediators, including Diversity 1.0 Registration: or 407-422-4551 x233 Location: OCBA Center, 880 N. Orange Ave., Orlando, FL 32801 URL:

Tuesday, October 25, 2011

ODR - Online Dispute Resolution

I listened to a live streaming broadcast on regarding Understanding the Benefits of Online Dispute Resolution. This show was produced for Cyberweek 2011 - the annual virtual conference dedicated to the innovations and developments of ODR by the Werner Institute at Creighton University via This show broadly discussed how online dispute resolution processes are used to deal with disputes. Some examples were the voluminous complaints associated with eBay customers and vendors. Other elements of the discussion were geared toward using technology to communicate with mediation participants and even software for moving the positions of the parties. While this may work well in some contexts, I find that the parties' physical presence is integral to the process and must occur in certain types of disputes. Face to face meetings with the help of the facilitator can be crucial in cases involving personal injury and small business. The broadcast outlined various forms of ODR processes, and the benefits and challenges to using virtual communications, including email and Skype. The show, hosted by Texas mediator, Pattie Porter, contained highlights from ODR experts in the field Dan Rainey, Colin Rule, and Noam Ebner. It appears we are increasingly utilizing technology in ADR, but perhaps not yet on the verge of virtual mediation. Some longtime services like CyberSettle have found success in limited areas, such as a computer-assisted system for settling insurance claims. However, for thousands of years, the personal interaction of the neutral third-party mediator working directly with the parties has been essential to the process and will likely remain a part of modern dispute resolution.

Thursday, October 6, 2011

Steve Jobs unsuccessful before death in personal appeal to end Samsung litigation

Samsung has been engaged in international patent wars with Apple over mobile devices, seeking injunctions in several countries regarding phones and tablets. Yesterday's death of Apple co-founder, Steve Jobs, may have ended any hope that CEOs (as the true decision makers in these disputes) could end them short of the courthouse. In fact, as Jobs lay dying, Samsung apparently filed two lawsuits in Europe to block the sale of the newly launched Apple iPhone 4S. While Jobs already personally tried to fix the situation by calling Samsung in an appeal to avoid a messy legal battle and to avoid a parts supply problem for Apple's iPad, he failed. This was not done under the formality of a confidential mediation which could have served to set parameters for negotiation and a process by which a facilitator could ease the tension between the parties, while working on achieving a creative solution that would benefit all in a post-PC and now post-Jobs era. Unfortunately, Jobs' death will eliminate at least one avenue to resolution that is utilized by mediators in their negotiation toolbox, which prevents the posturing of litigators and seeks direct dialogue between the head honchos-- face to face. Jobs' successor at Apple, Tim Cook, now might play a role in settling the ongoing technology dispute, but likely lacks the larger-than-life influence of Jobs. See story here:

Tuesday, October 4, 2011

NBA Tuesday - Perhaps these guys could just mediate?

Today's NBA lockout negotiations are expected to decide whether games will be lost this season and just how many. The path to sports labor peace leads to the bargaining table, not to a courthouse. Rather than a protracted court battle between owners and the players' union, nasty internal strife, not to mention no professional basketball (e.g., here in a town with the star center in his last contract year, playing in a new arena that was promised hosting an all-star game), the parties should mediate, just as the NFL did. Last month, NBA players' union members were worried enough about the possibility of agents pushing decertification that they had DeMaurice Smith of the NFL Players Association to speak to locked out basketballers about the pros and cons of dissolving a union, giving some background on what it was like with his players going through the lockout. Through negotiations and judge-directed mediation sessions, footballers and owners bargained before the NFL players' union suffered any judicial setback in the Brady v. NFL antitrust case, or worse-- if they won the case. Such a loss would have crippled the union's decertification threat in the future. A union win could have prohibited teams from collaborating on contracts. Another incentive to settle the matter now is that public opinion of sports leagues has bordered on critical in recent years; though die-hard fans will endure. Avoiding the surely negative effect of these monetary disputes as early as possible (especially in this down economy) may stop harm to morale and can be achieved in a less public way though the mediation process.

Thursday, September 22, 2011

Low rate of success leaves foreclosure program future in doubt

In a piece by the Palm Beach Post this week, Florida's almost two year-old mandatory foreclosure mediation program is under scrutiny by the state courts administrator because of its limited success. According to results presented to members of the state House Civil Justice subcommittee, there is only a 25 percent success rate statewide. Homeowner advocates and some mediators reportedly complained that banks are sabotaging mediations, so the program will be deemed a failure and removed from the already lengthy judicial process. Attorneys, judges and banks apparently continue to disagree over what the numbers really mean... Meanwhile, according to the Miami Herald, Governor Scott intends to remove the courts from the foreclosure process citing lack of court involvement in other states...

Thursday, September 8, 2011

Big enough guns with full authority?

In a pending patent infringement case between Oracle and Google, the judge recently ordered the parties to identify "top corporate executives" to participate in mediation. It seems the litigation is now focused on who those folks would be, with Oracle now complaining that none other than Google Android's very developer is not good enough! Google offered to send SVP Andy Rubin of mobile to meet Oracle President Safra Catz to resolve Oracle's patent lawsuit over Java code incorporated into Android. Oracle objects that Rubin is not senior enough to make the decisions needed for a successful mediation and claims he actually caused problem in the first place by infringing. In an unusual move involving the court in mediation participants before the conference, a letter was written to the judge, complaining of Google's corporate representative choice. It seems reminiscent though not a corollary of Apex-type deposition fights. Should a judge be in charge of what decision makers attend mediation or does that necessarily affect self-determination of the parties? Is a party's designated representative even subject to challenge in a seemingly premature manner, when the mediation has not even commenced and no issue on authority has been properly raised? See story:

Sunday, August 28, 2011

D.C. Mediation ?

This article comes a little late in the summer of discontent in Washington. Harvard Lecturer David Hoffman's term for the malaise affecting Congress is "PTID" or Post Traumatic Impasse Disorder.

He cites to an example of two siblings fighting over an orange in Fisher & Ury's classic negotiation book, Getting to Yes. Their mother solves the problem by cutting the orange in two-- but one of them wanted only the rind to bake a cake; the other wanted only the pulp to make juice. Both could have had the functional equivalent of the whole orange if they had communicated about their interests.

Hoffman references diplomat L. Michael Hager's proposal to create a politically neutral service for legislative mediation, akin to the nonpartisan Congressional Budget Office. Precedent exists for such an agency in the Federal Mediation and Conciliation Service, whose success in mediating major labor conflicts, he says, suggests that its mandate could be expanded to handle legislative impasses.

Even Fed Chairman, Ben Bernanke, weighed in this weekend on the dysfunctional Congress from a conference in Jackson Hole saying,"“The country would be well served by a better process for making fiscal decisions.”

Thursday, August 25, 2011

Why do cases often settle late in the afternoon? Hmm...

Decision fatigue is common to many fields, but I would posit that it is particularly found in complex or lengthy mediation negotiations. Breaks for food and respite are usually built into the day and prevent coercion and false imprisonment claims from arising in the context of a court-ordered conference.

Though skeptics point out that our brain’s overall use of energy remains the same regardless of what a person is doing, there can be no doubt that we experience depleted energy affecting willpower during the process of mediation. Does this in fact prevent self-determination in reaching settlements? Must there be an end other than adjournment or terminating the session which provides an ethical safety valve while preventing buyer's remorse?

The New York Times Magazine article below addressing this phenomenon is worth a read in general, but seems to provide pertinent insight to alternative dispute resolvers on why folks might do what they do when the hour is late...

Thursday, August 18, 2011

"It ain't over till it's over"

The NFL lockout lawsuit spawned a claim by retirees which wasn't quite resolved in the bigger deal between the league owners and players.

During a case management conference, Judge Nelson quickly suggested talks with Magistrate Judge Arthur Boylan, who brokered the original agreement that ended the lockout but did not settle the retirees' still-pending lawsuit.

Judge-directed settlement talks have been a theme of the recent negotiations in this litigation. In motivating the claimants to settle, she hinted that the case would be difficult likening it to "pushing a rock up a hill."

However, rather than ordering mediation, she told the three sides to sit down with Boylan for informal talks. Subsequently, lawyers for all sides said the discussions produced no agreement or date for additional mediation.

Perhaps a formal order of referral to mediation would have made them take things more seriously? The next scheduled hearing is not until September 15th.

See more at:

Sunday, August 7, 2011

America's Cup dispute is electronic not maritime

A mediation will be conducted this week in the dispute involving Team New Zealand arising out of the 34th America’s Cup protocol which mandates that teams’ content should be consolidated on the official website.

Team New Zealand’s position is that teams should be free to host its own internet sites, and that the present restriction on independent sites hinders commercial teams from raising funds. Allegations are that the rule could contribute to some teams not making it to San Francisco due to insufficient funding to mount an effective Cup challenge.

Team New Zealand is also sailing in the Volvo Ocean Race and the Extreme Sailing Series as well as the America’s Cup, and therefore, wants more than a Cup consolidated site.

See more here:

Sunday, July 24, 2011

Nationally, not many Foreclosure Mediation programs succeeding

Approximately 25 foreclosure mediation programs now exist in 14 states, but it is believed by some that they are not be as helpful to troubled owners as originally touted, such as in Maryland.

Unlike here in Orange County, FL, Prince George’s County, MD had only 56 successful home loan modifications before this summer through that state’s mediation program in an area devastated by the foreclosure crisis. A majority Black area heavily targeted by sub prime lenders in the boom years, that county is now staggering under the weight of abandoned homes and plummeting prices. One borrower reports to NBC that the mediation process there was a "gimmick" just to go through the formalities before desiring to foreclose.

Fortunately, here in Orlando under the program administered by the Orange County Bar Association, the lenders have been more serious on the whole about negotiating work-outs with owners who have demonstrable income and seek to stay in the home. Some HAMP modifications have been seen in the mediations conducted locally with qualified loans.

On the whole, however, there are troubled areas as mentioned above in Maryland and in diverse states like Nevada and New Hampshire (where in more than 100 cases, only 14 have reached settlements: ).

Sunday, July 17, 2011

Impasse on Deficit/Debt Ceiling Talks - What will be the Silver Bullet?

Given the stakes in 2012, the public perception of the outcome of these negotiations is important to both sides as campaign season arrives. This battle has been called by seasoned pundits "political theatre" and many believe that the result is inevitable - a deal will proceed before default occurs.

The question is what will it look like and who will take credit for the victory? So far the old familiar positional bargaining has taken place with well worn excuses for not giving in to compromise which will be required of both sides in the end. A looming deadline of August 2 has been placed before the parties as a motivator, though some have questioned whether that is even a drop dead date.

Will there be an element of the negotiation that provides a silver bullet-like end to the stalemate and summons the political will of those involved to make a deal? At this point, The White House has exhausted its influence without imprimatur and it appears there is no real facilitator present to help the Congress reach a decision.

See latest headlines -

Tuesday, July 5, 2011

A moment on the Casey Anthony Trial

Well, this afternoon proved the old adage we mediators use in talking to the parties about the unpredictable nature of jury verdicts, is true. You can't begin to guess what happens in the deliberation room no matter what side of a case you are on, nor how many years of experience in the law you might have.

That is the genius of self-determination in the mediation process. The parties get to decide their own fate and do not rely on the whim of folks picked from a voter or driver list.

Thankfully, our civil justice system has avenues for resolution before the jury trial. Though criminal plea bargains are reached in the majority of state cases, mediation is not a recognized method of achieving them. Perhaps, one day, that will be explored to alleviate the public expense of a trial such as this.

In looking at the murder charge acquittal today, I am reminded of the law school lessons in criminal law from Maimonides, expounding on Exodus 23:7 ("the innocent and righteous slay thou not") and Blackstone, Franklin and the others ("it is better that a hundred guilty persons go free, than to put a single innocent one to death.").

At least I can use today as a lesson in the jury system and hope that those for which I serve as a neutral facilitator continue to save themselves thousands of dollars in attorneys' fees and avoid the risk of an unpredictable result or jury verdict.

Monday, July 4, 2011

Retired NFL Players Seek Inclusion In Mediation

The unusual goal of a newly filed complaint is to have Judge Nelson, under whose orders the existing lawsuit's mediated negotiations are being held, instruct the mediator, the league and the current players to allow representatives of the retired players to be active participants in the negotiations.

The latest class-action complaint is aimed against the teams, the league, the players named in the Brady v. N.F.L. lawsuit and DeMaurice Smith, the head of the N.F.L. Players Association. It asserts that the sides are violating antitrust laws by negotiating settlement terms that improperly encompassed the rights of retired players in the time since the N.F.L.P.A. renounced its union status. Namely, it alleges the are conspiring to depress the amounts of pension and disability benefits to be paid.

Apparently, lawyers for the present players e-mailed to attorneys for retired players stating they would negotiate issues like the salary cap and free-agency rules, while lawyers for retired players would be allowed to suggest retired-player issues in connection with proposals before the mediator, Magistrate Judge Arthur Boylan.

Certainly, these developments will impact the pending NFL suits and may even influence the NBA litigation.

See report at:

Wednesday, June 29, 2011

Potential for Mediation in NBA dispute - will it go any better than NFL?

The professional basketball players' union filed a complaint with the federal government’s National Labor Relations Board accusing the league of bargaining in bad faith. Typically, a ruling can take 30-60 days. NBA owners are accused of “circus bargaining” or never substantively changing offers during negotiations.

In football, NFLPA elected to de-certify so that its players are no longer part of a union and thus the NFL has no right to carry on a lockout without violating anti-trust laws. That case is in the hands of the Eighth Circuit. That appellate court may rule that the players’ de-certification is little more than a bargaining tactic.

No mediation has been set in the NBA matter. However, in the NFL case, the district judge-directed mediation by a federal magistrate judge came with many marathon conferences, but did not yield a settlement. The parties are currently supposedly engaged in direct talks, perhaps signaling that process was not thought to be as productive. Certainly, the NBA will be watching the NFL and only fans stand to lose.

Thursday, June 23, 2011

Facebook mediation agreeement upheld

The brothers Winklevi have found that there must be an end to litigation.

According to the story, a California court ordered the parties to mediate the dispute, and they signed an agreement in which the Winklevosses would give up ConnectU for cash and a share in Facebook stock.

The Winklevosses later tried to pull out of the deal, alleging that Facebook had undervalued its stock, thus rendering the agreement as having been procured fraudulently.

A judge ruled against them and forced the settlement to go through, but the Winklevosses appealed.

U.S. 9th Circuit Court of Appeals Chief Judge Alex Kozinski, ruled against them.

"At some point, litigation must come to an end," Kozinski concluded. "That point has now been reached."

The brothers will not to appeal their case to the U.S. Supreme Court. most productive way for mobile blogging. BlogBooster is a multi-service blog editor for iPhone, Android, WebOs and your desktop

Friday, June 17, 2011

More Judge-directed mediation; this time in NYC

Judge-directed negotiation, is seen by President Obama's administration as offering states a way to curb liability expenses that have sharply increased health care costs nationally. Getting judges involved earlier, more often and much more actively in pushing for settlements, is touted as the crucial ingredient.

In New York, an expanding program started under a federal grant bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals.

This article reports that malpractice costs have been at the center of the debate about health care expenses (and tort reform) for decades, with some states enacting legislation to limit awards. But the lawsuits have been difficult for judges to control, partly because the cases can go on with little judicial involvement for years, pushing up legal expenses and solidifying positions. The judges in this program keep 'em talking...

Thursday, June 9, 2011

Interesting look at mediation by our neighbors to the north: judge-led mediation

Mediator Louise Otis, who was just awarded the highest legal honor in Quebec, apparently introduced and implemented a voluntary judicial mediation program offering litigants the possibility of meeting with a judge to resolve their civil, commercial or family disputes – claimed to be the first such system at the appellate level in North America.

Says former Judge Otis, "A judge has to apply the law, but a judge mediator can discuss options for solutions with people and this is the difference. I really think that 90 per cent of all conflicts should be resolved through a useful dialogue, constructive dialogue well guided by a private mediator or a judge mediator. If not, our judicial system will lose legitimacy."

She calls it a living laboratory because it is an integrated hybrid system of justice, where mediation and formal adversarial systems stand side by side. Wait-- I thought that's what we have here in Florida?! I suppose the judicial aspect is more formal in Canada, though are judges are capable and often do act to prompt resolution between the parties if at all possible. This is particularly apparent in the Complex Business Litigation Division in Orlando during case management conferences which require attendance of the litigants.

Read more about Montreal's judge-led mediation programs:

Monday, May 23, 2011

NFL and Players reach impasse for now

It seems the parties, and mainly the league, are humoring the Magistrate Judge Boylan by merely participating in the court-ordered mediation process, while really holding out for potential leverage in negotiations potentially to be gained by a ruling forthcoming from oral arguments next week. This is a typical tactic seen in "bet the company" type litigation. Surely, an appeals court ruling can change the tide (and likely the season) and will provide either a stimulus for continued talks or the outright victory for one side. However, the lawsuit is still pending before U.S. District Judge Nelson, and the legality of the lockout has essentially become the fight for now, with both sides arguing over whether Judge Nelson has jurisdiction in the case, and over irreparable harm.

Additionally, the league was granted an extension to respond to the players' briefs in the "Tom Brady vs. NFL" antitrust lawsuit. The response was originally due this week, but will instead be pushed to June 6th.

The new date is noteworthy because it is three days after the appellate argument mentioned above, to determine if the lockout should be lifted.

The NFL's brief was filed on May 9, with the players' coming in last Friday. The NFL now has two weeks to craft a response.

Thursday, May 5, 2011

MSPRC Complications in Mediated Liability Settlements

Since last fall's new October 1st liability settlement reporting deadline for providers, problems facing institutions and insurance carriers not knowing the amount of a Medicare reimbursement before settlement have become worse. Since Congress passed the Medicare, Medicaid and SCHIP Extension Act (MMSEA), litigants have scrambled to interpret the impact on the resolution of liability claims. Sanctions for non-compliance imposed by Section 111 of the MMSEA include fines of $1,000 per day. This provides an impetus for both the plaintiffs and defendants to actively engage the Centers for Medicare and Medicaid Services (CMS) regarding implementation of this law. When the Medicare Secondary Payer Recovery Contractor (MSPRC) has been notified of a claim, it will issue a “Rights and Responsibilities” (RAR) letter informing the beneficiary of his or her responsibilities to Medicare. Within 65 days from the RAR letter, the MSPRC automatically issues a "Conditional Payment Letter," which contains the amount Medicare paid for medical claims related to the case. However, it is not until after MSPRC receives notice of a settlement, judgment, or other payment that it calculates the final reimbursement amount and issues its “Demand Letter.” Originally, conditional notice was issued when MSPRC learned of a settlement without the plaintiff having notified it. Notifying Medicare of a case early in the litigation process should speed conditional amount information. If MSPRC is notified of settlement, but the beneficiary or representative never received an initial Medicare lien amount, a conditional notice will issue first. This slows the process and can complicate settlements at mediation due to not knowing the true amount of the Final Demand.

For more detailed information on liens, see Medicare's website:

Friday, April 29, 2011

Federal Arbitration Act Preempts State Law Limitations

This week in AT&T MOBILITY LLC v. CONCEPCION ET UX. the U.S. Supreme Court held that the Federal Arbitration Act (FAA) preempts state contract law limitations on the enforceability of arbitration agreements.

Justice Scalia authored a 5-4 opinion on April 27, 2011 in which the Court ruled that California's classification in consumer contracts of collective-arbitration waivers as unconscionable is preempted by the FAA. According to the Court, nothing in the FAA suggests an intent to preserve state rules standing as an obstacle to the accomplishment of the FAA’s objectives. As a result, businesses may continue enforcing individual arbitration agreements in contracts with employees, consumers and others. This opinion upholds enforceability of arbitration provisions and class action waivers in employment and consumer contracts.

The couple who filed a class action against AT&T for various violations of California’s consumer protection statutes challenged arbitration pursuant to a wireless service contract containing express class action waiver. The U.S. District Court and the Ninth Circuit Court of Appeals held that the class action waiver was unconscionable because it was contained within a contract of adhesion, involved small amounts of damages and bilked large numbers of consumers out of small amounts of money. However, the Supreme Court reversed, opining that states may not place conditions upon the enforceability of arbitration.

Monday, April 25, 2011

Business Litigation "Pre-nups" and E-discovery Mediations

Mediators assist clients in pre-suit negotiations involving complex litigation all the time, but the focus at that juncture in a case is usually on damages and avoiding expenses that will be encountered if actual court litigation ensues. Attorneys who understand the importance of limiting downstream litigation costs should consider alternatives to what I call Mutually Assured Destruction, or pushing the nuclear E-Discovery button in a litigation where perhaps the amount in controversy does not justify the great expense of full-blown data discovery of this nature. Litigation "pre-nups" can include an E-discovery component, confidentially resolving issues of scope with binding agreements-- as well as mediation on the substantive issues-- before resorting to actual litigation. Legal authors in this field, Alison O'Neal Skinner and Mary Mack, have recently advocated taking advantage of these processes early in a case and believe a confidential exchange of proposals on how to create a workable E-discovery plan increases the chances of reaching mutual solutions. ( So next time you are thinking about/encountering the scorched earth discovery plan, try this approach first!

Tuesday, April 19, 2011

While one pair attempts to settle, the other wants deal undone

As discussed, NFL players and owners today resume talks (pending a ruling from Judge Nelson on the lockout) after being together for longer than nine hours last Thursday in the Minneapolis courtroom chambers of federal Magistrate Judge Arthur J. Boylan. The mediation recessed Friday after more than four hours. The hiatus in talks followed reports that last week's talks were "tough" and included a large amount of "fence-mending" and even "homework" for the participants...

On the other hand, the Olympic rowers and would-be Facebook creators, the "Winklevi" are seeking a rehearing en banc to undo their $65 million (now worth $200M) settlement with Facebook, after being told no by a three judge appellate panel in San Francisco...

In either case, there must be some finality to the litigation so the parties can move on! Hopefully, for football fans, continued mediation is successful and for fans of the self-determination process, the prior Facebook settlement agreement is upheld in the absence coercion or fraud.

Friday, April 15, 2011

NFL Players, League giving ADR another try to reach end zone

Mediation resumes in NFL, players dispute

Meeting again to negotiate and sworn to secrecy about specifics of the court-ordered mediation, neither the league nor players provided much insight about where they're at in their dispute over the division of $9 billion in the sports business. As mentioned in my prior post on this case, Judge Nelson is a stickler for settling difficult cases and the court has indicated it wants to continue with everyone talking...

Tuesday, April 12, 2011

Sometimes an apology is all that is needed

Former Talking Heads lead singer David Byrne's federal lawsuit in the Middle District against former Governor of Florida and U.S. Senate candidate Charlie Crist for use of the hit song "Road to Nowhere" in the 2010 campaign was resolved with a simple You Tube apology. I spoke with attorney for Gov. Crist, Brian Moes last year about the allegations which included copyright infringement. I also spoke with Gov. Crist last month about the importance of early mediation and stressed the impact of the high profile decision makers getting together in the room, without the posturing of lawyers, to settle their differences. This case was also being used to expose a larger practice of artists' intellectual property rights being trampled upon during political campaign season by both inexperienced and veteran advertising organizations in media spending. In the end, a potentially valuable claim went away with a message to would-be violators and a humble apology seen at the link below.

Wednesday, March 30, 2011

NFL Lockout - Mediation in the spotlight

Though the NFL and the NFLPA agreed to an ultimately failed initial mediation, at least the primary problem of this negotiation, the lack of trust between the two sides, was exposed. George Cohen, a highly experienced federal mediator with a background in sports, apparently found no flexibility in the preliminary search for common ground.

Now, Judge Nelson, a recent Obama appointee, in charge the National Football League players’ lawsuit against the NFL, may use her reported skill in resolving disputes to urge players and owners to settle their emotionally charged conflict over billions in annual revenue. Judge Nelson's decision, whether or not to enjoin the lockout, is going to affect enormously the leverage on either side. She spent ten years as a Magistrate Judge reportedly strongly encouraging parties to settle their disputes over the complaints of eager trial lawyers...

Thursday, March 3, 2011

U.S. Supreme Court will hear Arbitration matter next term

A scam targeting law firms is heading to the high court to determine when businesses waive their right to arbitration in consumer litigation. In the past, the U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency. Plaintiff lawyers argue arbitration clauses are unfair to consumers and are just a way for banks to short-circuit class action lawsuits. The case claims Citibank’s actions run contrary to the high court’s prevailing philosophy on arbitration. Oral Argument will be set during court session beginning next fall.

-- Daily Business Review, Miami

Tuesday, January 25, 2011

Finally, a TV show about a mediator

Fairly Legal debuted last week on USA network. While suffering from some of the same flaws as normal legal television dramas, it was at least humorous and endeavored to show the difficulties one has when dealing with positional bargaining. Of course, the ethical rules are stretched a bit and the profession is portrayed unrealistically in that we are really helpful in clearing dockets, not adverse to the court system (unlike the judge in the show who cuffs the female protagonist in contempt for being late to report her settlement). Nonetheless, bringing attention to alternative dispute resolution is never a bad thing! Here's a link to one review: