Monday, August 25, 2014

Mediator to Oversee Bank of America Settlement

A law professor and mediator will oversee billions in consumer relief for struggling borrowers as part of the settlement by Bank of America with the federal government. Veteran dispute resolver, Eric Green, will give or withhold credit on mortgage modifications and home loans for low income borrowers. Green served as mediator on various Bank of America cases. In 2011, a federal judge approved a $410 million settlement in a class-action lawsuit involving some 13 million customers affected by debit card overdrafts. That suit claimed the bank processed its debit card transactions from highest to lowest dollar amounts in order to maximize fees customers paid. That settlement sparked criticism because it gave some customers only a fraction of what they paid. Of this new record $16.65 billion settlement, $9.65 billion will be in cash payments to various federal agencies and six states, with the rest in consumer aid. The Department of Justice is restricted from overseeing Green, who will provide quarterly reports. Bank of America has until summer 2018, to provide the relief. Interestingly, Green did not play a role in the terms or in mediating the settlement. If the mediator determines Bank of America has not complied by the deadline, the bank would be required to make cash payments equal to its shortfall. That money would go to organizations that provide housing counseling and foreclosure prevention. See stories here-- and

Friday, August 15, 2014

Federal Judge Orders Investigation of Arbitral Awards

Interestingly, a federal judge has ordered an investigation into why a municipality consistently loses arbitration cases with officers who are appealing discipline. U.S. District Judge Thelton Henderson opined that an arbitrator's recent decision overturning the termination of a the City of Oakland police officer videotaped tossing a tear gas grenade into a crowd of Occupy Oakland protesters struck at the heart of a reform he oversees. The judge maintains reversal of appropriate discipline at arbitration undermines the very objectives of a court-sanctioned reform effort following a police brutality scandal a decade ago. Reportedly, of the last fifteen arbitration cases by police officers challenging punishments, discipline was revoked in seven cases and reduced in five others, leaving only three wins for the city. Judge Henderson's unusual order apparently gives wide latitude to study every facet of the police department's investigation of officers and how the City Attorney's office prepares arbitration cases. The investigation will include a review into whether the city is getting adequate legal representation for arbitration hearings, whether it is selecting qualified expert witnesses and whether it should change the process for selecting arbitrators. It will also investigate the police department's discipline process, which officers have claimed is biased against them. See story here--

Monday, August 4, 2014

Met Mediation

The U.S. Federal Mediation and Conciliation Service (FMCS) is facilitating negotiations with the Metropolitan Opera, the American Federation of Musicians, and the American Guild of Musical Artists. In a tactic I have employed successfully in the past, the parties retained an independent financial analyst and highly regarded industry expert, to conduct a confidential study of finances in an effort to help reach new labor agreements. As a result, the Met will further extend the contracts for approximately a week to allow for the completion and evaluation of the report. FMCS, consistent with its practice, will not comment during this period, due to the highly sensitive nature of these discussions and confidentiality of this process. Sometimes using facts and figures within the confines of mediation makes the parties more comfortable with coming to a deal instead of arguing with CPAs in a courtroom. See more here-- 

Friday, August 1, 2014

FL Supreme Court Limits Senior Judge Mediators

Twenty years ago, the Supreme Court of Florida authorized senior judges to serve as mediators in a new Code of Judicial Conduct, despite concerns about the propriety of a senior judge acting as both a mediator and an assigned senior judge. Last month, following proposed amendments published for comment that would have prohibited dual service, the court again decided to allow senior judges to continue to serve as mediators in light of significant opposition to the proposed prohibition. However, the Court chose to add new limiting provisions, such that Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge. Additionally, mediation firms affiliated with judges are required to follow the same prohibitions on advertising and promotion that are imposed on judges. A potential exists that senior judges serving as paid mediators could be seen as exploiting their judicial position or lending the prestige of judicial office to advance the private interests of a judge or a mediation firm with which that judge may associate, or otherwise running afoul of the Code of Conduct. These amendments to the Code of Judicial Conduct, Rules for Certified and Court Appointed Mediators, Florida Rules of Civil Procedure, Rules of Judicial Administration, Rules of Juvenile Procedure, and the Florida Family Law Rules become effective on October 1, 2014 and are seen as additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business. See full opinion here--