Celebrating 25 Years of Mediating!

Hard to believe this month marks my 25th year serving lawyers and litigants as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and as a federal district court mediator. Back in the day, you had to be a Florida lawyer for at least five years before even becoming certified (much like a judge). I fondly recall my excellent training with former judge David Strawn, a pioneer in the field of mediation. I am still in touch with my mediation training classmates, some of whom are also mediating full-time, and one who took the bench and presided over our business court in Orange County. Through the years, this special field in the law has evolved and some rules have changed, but by and large the basics are the same, proving that our 3,000 year-old tradition of human dispute resolution still very much has a place as really the principal means to dipose of cases in the modern court system. Even with the seismic shift in our technique due to mediating lawsuits mostly online since the pandemic, online platforms are now second nature to judicial officers, practicing lawyers, parties and mediators. Courts continue using technology for online hearings, even though some are requiring physical attendance. This profession of attorney-mediators is now strongly represented by the Florida Bar ADR Section that has supported practitioners of mediation and arbitration for over fifteen years. At the time of state section formation in 2010, I also founded the Orange County Bar Association ADR Committee to deal with local issues in dispute resolution. The discourse among members of both organizations has never been higher, with committed practitioners engaged in changing the role of neutrals for the better through training and rules commentary. While I look forward to continued advances in online dispute resolution-- which does enjoy just as high a success rate in producing settlements-- I also enjoy good old-fashioned face-to-face negotiation! Schedule with me to settle something online or in person here-- https://www.nadn.org/lawrence-kolin

15 Years of Orlando Mediator

This month marks fifteen years since I began writing this blog to help keep the legal community abreast of the latest goings-on in mediation, arbitration and other emerging forms of dispute resolution. This blog has been recognized as an official ABA "Blawg" by the American Bar Association, voted as a finalist for The Expert Institute Best Legal Blog in the Legal News category, as top blawgs to follow by ADR Times and a current Top 5 Dispute Resolution Blog on Feedspot.com. My first entry had to do with arbitration as a process criticized by consumer advocates and that remains true today, though it is becoming utilized by more industries in contracts and is even being employed by courts under statutory processes, like nonbinding arbitration. Some things that have changed are the remote nature of these processes, especially since Covid. These changes advanced the use of then state of the art technology like Zoom, now comfortably utilized by professionals, parties and their counsel alike. We are getting past early days of the artificial intelligence boom and looking for ways to ethically use the power of AI as a settlement tool, while maintaining the human touch that has led to deals over the past 3,000 years of this profession. My alternative dispute resolution practice has continually evolved since first becoming certified in Circuit-Civil mediation in 2001 by the Florida Supreme Court and serving as a full-time neutral since 2010. Over that time, I have helped to bring about thousands of resolutions of multi-party complex cases in state and federal trial courts. I've also facilitated post-trial settlements with appellate cases pending in Florida's 5th and 6th District Courts of Appeal which are still the only DCAs to maintain formal civil mediation programs. Courts are extremely backlogged, so as litigation costs continue to rise, early settlements make sense in regular matters. Pre-suit mediation is trending beyond statutory requirements and can be quite effective if the parties have just enough information to evaluate their positions in the potential litigation. Mediation is essential to America's courts and remains the most popular of docket-culling measures. Thanks for your readership and attention to my musings and thought leadership about all things in modern-day peacemaking.

Will AI Settlements Spawn More?

A federal judge presiding over a class action earlier this summer said Anthropic made fair use of many authors' work to train its AI, but said the company violated copyright law by saving pirated books to a central library not necessarily used for AI training. That proved to be too many potential liabilities facing Anthropic, which just settled before an upcoming trial in December. Likewise, in the case against Eleven Labs, the defendant allegedly copied the voices of plaintiffs without consent and removed technical protections and copyright management notices from audiobooks in order to train their models. A stipulation staying the case was filed pending settlement. Legal scholars are wondering if these settlements facilitated by mediators signal how the industry will navigate the dozens of similar lawsuits pending nationwide. While settlement details remain confidential pending court approval, the timing reveals essential lessons for AI development and intellectual property law. With almost fifty other pending cases, Professor Edward Lee opines an increased probability of settlement (with which ChatGPT agrees), though they involve different companies, different types of works, various judges, and potentially enough variety in the training of the AI models to matter. Meta’s use of copyrighted works to train Llama was considered a fair use, even where Meta had obtained those works from piracy websites. However, the Meta decision was solely based on the record before the court and not a broad holding that all of Meta’s actions were fair use as to all possible plaintiffs, with other parts of the decision less favorable to the defendant. With those fair use precedents, some defendants in the other cases could feel they have decent defenses in their litigation. Anthropic was in "a unique situation," according to Professor James Grimmelmann, with as much as $1 trillion in piracy damages at stake in its worst-case scenario. "It's possible that this settlement could be a model for other cases, but it really depends on the details," he said to Reuters. Reportedly, Professor Chris Buccafusco was surprised Anthropic chose to settle, saying Anthropic was "in a position of decent strength" because of its fair-use determination, despite the piracy decision. The fate of the pending generative AI lawsuits could hinge on fair use, a still-evolving concept that no court had addressed in the cases until June. He also said Anthropic's settlement removes an early opportunity for a federal appeals court to consider fair use and issue a decision that would be binding on other cases and likely send the issue to the U.S. Supreme Court (where a bad precedent might ensue). See more here-- https://tinyurl.com/ydkynvmp and https://tinyurl.com/527phxkw and https://tinyurl.com/yn5rdruz and https://tinyurl.com/2z7nfwps and https://tinyurl.com/ayaswu8s

Celebrating 20 years as Mediator!

This month marks my 20th year as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and a federal district court mediator. Back in the day, you had to be a Florida lawyer for five years before even becoming certified (much like a judge). I fondly recall my training with former judge David Strawn, a pioneer in the field of mediation. I am still in touch with my mediation training classmates, some of whom are also mediating full-time and even one who took the bench and now serves our business court division in Orange County. Through the years, this field of law has evolved and some rules have changed, but by and large the basics are the same, proving that a 3,000 year-old tradition of dispute resolution has a place as a means of diposing of cases in the modern court system. This year in particular has been a seismic shift in our technique due to the immediate need for a solution to continue mediating lawsuits during a pandemic. Zoom and other existing commercial online platforms became a lifesaver for most practicing lawyers and mediators. Courts seem destined to continue using technology for online hearings and my colleagues anticipate scheduling of virtual mediations well beyond the Covid-19 crisis. A massive backlog of cases has ensued requiring even more dispute resolution. Our profession as attorney-mediators has never been more strongly represented than by the Florida Bar ADR Section which is now over a decade old. At the time of section formation in 2010, I also founded the Orange County Bar Association ADR Committee to deal with local issues in dispute resolution. The discourse among the members of both organizations has never been higher with committed practitioners engaged in changing the role of neutrals for the better. While I look forward to continued advances in online dispute resolution-- which does enjoy a high success rate in producing settlements-- I also long for a return of good old-fashioned face-to-face negotiation! Schedule with me here-- https://www.uww-adr.com/biography/lawrence-h-kolin

Post-Trial Mediation Ordered For Water Wars

Attorneys for Florida and Georgia tried the decades-long Water Wars case between them before a U.S. Supreme Court assigned Special Master late last year. A ruling was expected following the filing of post-trial briefs of each state. Florida seeks to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. The dispute focuses on the river basin which drains almost 20,000 square miles in western Georgia, eastern Alabama and the Florida Panhandle. The Chattahoochee and Flint rivers meet at the Georgia-Florida border to form the Apalachicola, which flows into the bay and the Gulf of Mexico beyond. Maine resident and Special Master, Ralph I. Lancaster, Jr., previously advised the states to settle out of court rather than live with a costly decision he has stressed neither will like. The states already mediated the case with a mediator whose name was strangely kept secret by an order. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but now has ordered the parties back to a post-trial mediation this month. Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. The Special master has encouraged the sides meet in a good faith effort to reach a framework for settlement of this equitable apportionment proceeding. He cites a precedent for controversies between states, quoting a 1942 case for the proposition that "The Supreme Court has 'often expressed' its 'preference' that, where possible, states settle their controversies by ‘mutual accommodation and agreement.’” Counsel for the states are to submit a confidential memorandum to him by January 26, 2017,“setting forth a summary of the parties’ settlement efforts.” See article here-- http://bit.ly/2iVDc3K and docket with case management order here-- http://bit.ly/2aMQVJH

Secret Water Wars Mediator

A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot has set a trial in his home state of Maine, where attorneys for Georgia and Florida agreed to begin arguments on Halloween. In the meantime, each side stated they continue to pursue settlement of the federal lawsuit Florida filed under the Supreme Court's original jurisdiction, seeking to push Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier, back to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Ralph I. Lancaster, Jr., the 86-year-old veteran Supreme Court appointee, has repeatedly advised the states to settle out of court rather than live with a costly decision he stresses neither will like. The states chose a nationally known mediator whose name, oddly enough, has been kept secret by Master Lancaster’s order. Recent status reports filed by the attorneys indicate meetings between the mediator and high level state officials were continuing before trial. The parties reportedly participated in multiple one-on-one telephonic discussions with the mediator; exchanged further confidential mediation proposals; and met face-to-face in Atlanta with the mediator. Except to hear progress reports, Master Lancaster wants no part of the mediation process. He denied Florida’s suggestion to talk with the mediator, saying “'I have no intention of invading (the process) or influencing or discussing with the mediator anything that's going on.'" See news item here-- http://bit.ly/2apC4l5 and docket here-- http://bit.ly/2aMQVJH

New Federal Rules Amendments Now Effective

Last week, the long-awaited Federal Rules of Civil Procedure amendments became effective without changes to the proposed language by Congress. These rules importantly pertain to discovery of Electronically Stored Information or ESI-- a concept first introduced into the FRCP in 2006. The changes are essentially outlined as follows: Rule 1: The very first rule now specifies that both the court and the parties should interpret the rules to secure just, speedy and inexpensive outcomes. Rule 4: Plaintiffs now have only 90 days to serve a defendant after filing the complaint. Of course, courts may still extend the time for service upon a showing of good cause. Rule 16: Conferences set under this rule are now 90 days after service or 60 days after an appearance by a defendant, whichever is earlier. Rule 26: Scope of discovery substantially changes, requiring that discovery requests be proportional to the needs of the case, as opposed to just reasonably calculated to lead to the discovery of admissible evidence. Courts may now allocate discovery costs. Parties are to discuss preservation of evidence in their discovery plan and may serve document requests before the scheduling conference, having been considered served at the first Rule 26(f) conference. Rule 34: Responses to production requests now must state with specificity the grounds for objecting and whether any responsive materials are being withheld on the basis of that objection. Rule 37: The proverbial Safe Harbor relating to preservation obligations now lessens a court's power to impose sanctions for failure to preserve information, merely allowing ordering so-called curative measures based on a finding that a party is prejudiced from spoliation of evidence. More severe sanctions, such giving an adverse inference or entering default judgment, are permitted under proposed Rule 37(e)(2), but only after finding a party acted with intent to deprive another party of the information’s use in the litigation. Of course, despite a new emphasis on cooperation and proportionality, continuing E-Discovery skirmishes are expected. The use of confidential mediation for the resolution of such disputes by E-Neutrals is encouraged if the parties and counsel cannot settle the entire matter. E-Neutrals are mediators specializing in complex cases involving electronic evidence who can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of risks and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. Getting back to the merits is the goal of this process and these new discovery rules. Until there are orders applying these amendments and some new FRDs reported, it remains to be seen how they will impact litigation in the federal courts. See more on this development here-- http://www.bna.com/new-rules-civil-n57982064088/ and https://www.law.cornell.edu/rules/frcp

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--http://bit.ly/1smUJB2 

Apple and Google Bury the Hatchet

Apple and Google settled all smartphone patent litigation between last week, dismissing their cases before the U.S. Court of Appeals for the Federal Circuit. Interestingly, the settlement does not include a typical cross license of respective patents. Steve Jobs once called Android a "stolen product." Apple was unable to slow Android's growth to the majority of new mobile phones sold. In 2010, Motorola preemptively accused Apple of infringing several patents, including one essential to how cellphones operate on a 3G network, while Apple said Motorola violated its patents to certain smartphone features in 2011. U.S. District Judge Richard Posner dismissed that case in 2012 shortly before trial, saying neither company had sufficient evidence to prove its case. Last month, the appeals court gave Apple another chance to win a sales ban against Motorola. Google acquired Motorola Mobility in 2012 and recently agreed to sell its handset business to Lenovo, while keeping the vast majority of the patents. Google may have been encouraged to settle with Apple after regulators in the U.S. and Europe criticized the company for the legal strategy it employed with Motorola's patents. Motorola had pursued injunctions against Apple products based on patents that regulators said it was required to license to Apple. Apple's incentive to keep fighting the Motorola suit may have been diminished by the pending sale to Lenovo. See stories here-- http://on.wsj.com/1pbg90S and http://reut.rs/1p0pjgL and cases 2012-1528 & 2012-1549 at http://www.cafc.uscourts.gov

NCAA Concussion Case Mediation

Just as the NFL settles its concussion case with former players, the NCAA is reportedly entering a mediation with former Eastern Illinois players on November 1st. Retired federal jurist, Layn Phillips, is expected to be the mediator and is known for helping the NFL and NFLPA reach a recent settlement in that dispute. Plaintiffs are seeking money damages, as well as long-term medical monitoring by the NCAA and stricter concussion guidelines. Since the lawsuit was filed two years ago, the NCAA hired a chief medical officer to address the concussion issue. Attorneys for plaintiffs are still seeking class action certification for the lawsuit potentially affecting thousands of players. The NCAA's case was damaged by discovery of emails and information showing that less than half of NCAA schools require a player to see a physician post-concussion. NCAA chief legal officer, Donald Remy, has stated the association is willing to consider reasonable mediation options that address student-athlete health and safety concerns. The NCAA still faces lawsuits in the O'Bannon licensing case, from Coach Paterno's family, and on appeal regarding investigation of former USC assistant coach Todd McNair. See story here-- http://cbsprt.co/1fzXEQ6 and NCAA site commentary on concussion management-- http://bit.ly/18XKJq9

NFL Helmet Maker Mediation

Last month, before the start of the NFL regular season, thousands of former players settled with the National Football League over concussion-related suits for $765 million. However, the apparent amicable resolution to their case doesn’t mean litigation is over. NFL helmet manufacturer Riddell and former players are continuing talks because the deal doesn’t include Riddell. While those negotiations remain confidential by order of the federal judge to "refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process,” the proposed settlement between the NFL and some 4,500 former players awaits court approval and a determination on fees. In a prior order, the presiding judge, Hon. Anita Brody, expressed her belief that "the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.” Riddell may remain exposed following a state jury verdict this year in Colorado, determining that Riddell failed to adequately warn a former football player about the dangers of concussions, resulting in a $3.1 million damages. In this federal matter, Riddell had argued their case should be heard separately from the case against the NFL, but a motion to sever was never granted before ordering the Riddell defendants into the global mediation. See articles here-- http://bit.ly/1fXmCX8 and http://bit.ly/15hvyFk

Diamonds are Forever; What's in a slogan?

U.S. District Court Judge John Adams of Ohio ordered Sterling Jewelers Inc. and Zale Corporation into mediation in a diamond advertising lawsuit. Sterling, a unit of Signet, sued Zale last fall, alleging Zale's advertisements for the Celebration Fire diamond as "the most brilliant diamond in the world" were false and misleading. Sterling, based in Akron, said its tests found that its own diamonds are as glittery as those sold in Zales. In the lawsuit, Sterling demanded that Zale's advertisements be pulled. However, multimillion-dollar ads remained in place throughout the winter holiday shopping season and the court denied Sterling's request to pull them. At a preliminary injunction hearing earlier this year, the judge said that Sterling had not shown that it would suffer financially, even if it could prove that Zale's boast of the most brilliant polished diamond in the world was false. In accordance with the referral to mediate, both parties have until April 10th to review, confer and appoint court approved federal mediators and must come to agreement by May 2nd. Sometimes a mediation following a TRO, which is like a mini-trial, is more productive, as the parties have seen a preview of the court's reaction to claims and defenses and are ready for a self-determined solution. See stories here-- http://bit.ly/13QA3b1 and http://bit.ly/11WJgJP and http://on.wsj.com/11VSx7J

Mediations On The Waterfront

From the west coast of Florida to the West Coast, mediations have been ordered in two brewing waterfront controversies. Here, a lawsuit threatens to delay St. Petersburg City Council's allocation $5.4 million to begin work on a new pier. Circuit Judge Amy Williams ordered the city and a citizens group to mediation to come up with ballot language in a claim against the city that seeks a public referendum on the $50 million project. Also at issue is whether to save a 40-year-old inverted pyramid sitting on the 90-year-old pier structure. The city council voted 7-1 in 2010 to demolish the Pier-- a landmark structure on the downtown waterfront since it was constructed in 1973-- after engineers determined the 1,000-plus pilings undergirding it are coming to the end of their useful life. Meanwhile, in Los Angeles, both sides in the strike crippling the ports of L.A. and Long Beach have agreed to federal mediation. Workers belonging to the International Longshore and Warehouse Union went on strike last month against an employer group of shipping lines and terminal owners, causing most cargo container terminals at the nation's busiest seaport complex to shut down. The union says the employers transferred work from higher-paid union members to lower-paid employees. The employers dispute that claim, saying they offered the workers full job security and generous wage and pension increases. Mediation will surely produce sink or swim results in these disputes. See news items at bit.ly/YFiesD and lat.ms/RzxCne

50th Anniversary of the Middle District of Florida

Tonight in Orlando, The Historical Society of the United States District Court for the Middle District of Florida held a 50th Anniversary Dinner sponsored by members of the Middle District Bar and the Historical Society through the Bench Bar Fund. Senior U.S. District Judge George C. Young was in attendance and said it was his first event outing in many years. Geographically the Middle District of Florida (FLMD) stretches over 350 miles from the Georgia border on the northeast to south of Naples on Florida’s southwest coast. Three of the six largest metropolitan statistical areas (MSAs) in the state, namely, Tampa, Jacksonville and Orlando are within the district. The Clerk’s office headquarters is centrally located in Orlando with additional divisional offices in Tampa, Jacksonville, Fort Myers and Ocala. Demographically over 10 million people, more than 57% of the state’s population, reside within the district. Fifteen of the twenty most densely populated counties in the state are in the Middle District. In all, thirty-five of Florida’s sixty-seven counties make up the Middle District. Florida’s population has increased by about three million each decade since 1970 and now stands at approximately 19 million permanent residents, a 171% increase over the 1970 estimate of 6.8 million. Additionally this state, and the Middle District in particular, is a primary tourist and convention destination adding millions of visitors to those numbers. The Middle District of Florida remains one of the busiest federal district courts in the nation. I am proud to be a member of the MDFL bar and federal certified mediator roster. Read more at: flmd.uscourts.gov and see my alternate site: http://mdfl.tumblr.com/

NYTimes to mediate with Newspaper Guild

The New York Times and the Newspaper Guild of New York will mediate to hammer out a contract according to Arthur Sulzberger Jr., the paper's publisher, who broke the news to staff in an email (though there was apparently some dissatisfaction that the reporters were scooped on the story about the coming mediation). This attempt at ADR comes after employees staged a brief walkout and representatives for management walked out of a negotiating session. One correspondent praised the development, explaining to his colleagues that a mediator listens to both sides, leaning on each of them to give "bit by bit until a deal is reached." Officially, the company and the union have agreed to mediation "in order to maximize the potential of reaching a new collective bargaining agreement.” The chosen dispute resolver, primarily an arbitrator, Martin Scheinman, supposedly broke up a bar fight once by convincing one combatant his cue stick was too expensive to smash upon another. The Guild says it proposed Scheinman and tells members “A mediator cannot force a settlement, but instead uses persuasion to try to bring the parties to agreement. A mediator generally does not come up with his own proposals, but rather tries to push the parties closer to their respective positions. Neither side is bound by the mediator’s suggestions or proposals." According to the internal communication, "the union proposed Sheinman not because he’s pro-union but because he’s said to be super-smart. He’s a private mediator – he is paid by both sides to try to bring them to a deal. There are Federal mediators too, but the one assigned to this area apparently is not respected much." It seems there may be internal discord among NYT digital and print contract members, all of whom need to vote to approve a new deal. See stories http://huff.to/RjfNTW and http://bit.ly/W6veDD

Mediation ongoing in NFL Referee Dispute

Last weekend's failed negotiations between NFL Commissioner Roger Goodell and locked-out NFLRA game officials could not have been more evident than in Monday Night Football's botched calls. The ongoing labor dispute between owners and officials may have given refs more leverage than anticipated due to fan and commentator outrage, not to mention the football players. A league memo by general counsel told the officials' union and a federal mediator who joined talks Sunday that it is prepared to make reasonable compromises on economic issues in exchange for operational changes the league believes will improve the quality of officiating. However, the biggest economic sticking point is a traditional pension plan for existing officials, which the league wants to eliminate and replace with a 401(k) plan. The memo said the officials’ most recent offer includes a make-up bonus for lost wages from the lockout and a reduction in disciplinary authority over officials. See http://nyti.ms/UsWGIf and listen http://www.npr.org/2012/09/25/161729675/calls-grow-for-nfl-to-settle-dispute-with-refs

Bankrupt Cali Cities and Mediation

With 15 percent unemployment since the recession and a foreclosure rate among the state's highest, San Bernardino is likely to become the third California city to file for bankruptcy this year. Stockton filed for bankruptcy June 28 after months of mediation apparently failed to yield an agreement between the city and its creditors, including bondholders and labor unions. Mammoth Lakes, a small ski resort town, filed for bankruptcy last week due to a $43 million legal judgment against it. Unlike Stockton and Mammoth Lakes, however, whose financial problems were well-known before those cities filed for bankruptcy, San Bernardino Mayor Patrick Morris claims he didn't know about the awful financial situation until a few weeks ago. Under a California law passed this year, cities must hire a third-party mediator to negotiate with employee unions and creditors before filing for Chapter 9 bankruptcy protection. However, cities can avoid the mediation process if they instead declare a fiscal emergency, which San Bernardino plans to do. The U.S. Bankruptcy Judge overseeing Stockton's bankruptcy, Elizabeth Perris, just appointed her judicial colleague, Christopher Klein, to mediate that case and ordered the city and its creditors to meet next month. On the city's first day in court last week, Judge Klein said that for the Stockton bankruptcy to be successful, the city will need to propose "a consensual plan of adjustment." See stories at - http://www.mercurynews.com/top-stories/ci_21064706/stockton-bankruptcy-judge-appoints-mediator-orders-meeting and http://nyti.ms/S842kT

Did mediation save Triple Crown?

This week, a federal mediator settled a labor dispute at Belmont Park that threatened I’ll Have Another’s chance of winning thoroughbred racing’s first Triple Crown in more than 30 years. New York's Governor Cuomo urged both sides to reach agreement in a dispute over maintenance and starting gate workers at the racetrack. About 150 union members at NYRA’s tracks have been working without a contract for over a year after the previous contract was given a one-year extension. The workers authorized a strike to begin today, a day before the running of the Belmont Stakes, the final jewel in the Triple Crown. Now it's up to I’ll Have Another to become the first horse to win the coveted crown since Affirmed in 1978, so place your bets. See stories - http://nyp.st/LzPb0M and http://wapo.st/JIY58t UPDATE Noon 6/8: Guess not - would-be champion scratched from race - http://therail.blogs.nytimes.com/2012/06/08/ill-have-another-scratched-from-belmont-ending-triple-crown-bid/

Moses or Solomon?

A federal judge ordered mediation with a magistrate judge in a lawsuit about whether the Ten Commandments can be displayed at a Virginia high school. U.S. District Judge Urbanski of Roanoke ordered the school board and the unnamed student and parent into mediation to see if a compromise can be reached over the biblical display. It's been reported that the judge suggested a deal could be made where the first four of the Ten Commandments are left off the display. This is unusual in cases of this type, which are typically all or nothing. For instance, in a pending Florida case, the Eleventh Circuit Court of Appeals recently heard arguments regarding Dixie County's Ten Commandments, where litigants are fighting over whether or not a six-ton model of the Ten Commandments in front of the county courthouse is unconstitutional and whether an anonymous plaintiff has standing in that matter. In the VA case, the judge issued a protective order allowing the parent and student involved in the case to remain anonymous during the suit which apparently came to fruition by a mutual agreement due to the threat of hostility by the community. The case involves a four-foot tall display of the Ten Commandments first hung on school walls following the Columbine school shooting in 1999. The display was taken down over a decade later by school officials, after receiving complaints, and replaced with a copy of the Declaration of Independence. In 2011, the Ten Commandments display was replaced following a backlash from parents and pastors. The display was then removed again after a month by school officials for no stated reason, prompting students to walk out of classrooms in protest. Will the tablets be split down to six, remain at ten or will there be none at all? See stories http://bit.ly/IYrWcx and http://bit.ly/JlIsaa

Megaupload Mediation

Controversial file-sharing services called cyber-lockers allow users to upload files to a server, which provides remote and secure storage of user content. Megaupload's users share their files with others and are encouraged to contribute content, which is often copyrighted. Services like this offer free limited access and further unrestricted use for a fee. U.S. District Judge Liam O'Grady recently directed lawyers from both sides of an Eastern District of Virginia case involving data which has been managed by service provider Carpathia Hosting since Megaupload was dismantled by authorities earlier this year to engage in mediation sessions in order to resolve the matter of archiving or deleting the information which had been stored by Megaupload users. The ruling temporarily preserves the infringing data which Carpathia claims it has had to spend as much as near $10K per day to maintain. Because the site went dark and Megaupload is no longer paying for server upkeep, but files are potential evidence of pirating, the hosting company wants relief while millions of legitimate users worldwide still want access to their data. In ancillary proceedings in New Zealand, Kim "Dotcom" Schmitz, the founder of controversial website, has been awarded back some of his previously confiscated fortune after it was revealed that a search warrant obtained by authorities was illegal. He and a number of the company's executives face extradition to America for trial. The issue of mediating litigation holds and preservation of evidence and related costs is a hot one in terms of ESI. This case brings to mind some recent entries of mine on E-Discovery mediation, as well as cost shifting and judge-directed ADR. It will be interesting to see if the rights of third-parties are respected in the process. See recent news items here: http://bit.ly/IAWczE and http://bit.ly/JaIn4E and http://bit.ly/Js8KG1