United Settles With Passenger

Perhaps in unexpectedly quick fashion, Plaintiff Dr. David Dao settled today with United Airlines after he was and randomly selected and removed from an oversold flight to make room for commuting crew members. His lawyers claimed he suffered a concussion, broke his nose and lost teeth during the ordeal. Dao can be seen hitting his head on an armrest and later with blood on his face in cell phone videos posted by other passengers on the flight. The company has since promised it will no longer use officers to forcibly remove paying customers from its flights. The incident occurred on April 9th and has caused a huge backlash against the airline on social media ever since. Early settlements are possible when both sides have problems. Typically, such lawsuits would take some time to reach a conclusion. There were some accounts of the passenger resisting and other things allegedly in his past that may have affected his ability to recover damages. Initially, United referred to Dao as "disruptive and belligerent," and praised employees for following "established protocols." United was obviously keen on mitigating public opinion damage after so much outrage by the traveling public was expressed online. Surely, this will be a future case study for public relations and risk management. In an official statement, United said they reached "an amicable resolution of the unfortunate incident that occurred aboard flight 3411. We look forward to implementing the improvements we have announced, which will put our customers at the center of everything we do." There is no shame in early resolution on either side and the deal is to remain confidential. Still, there will be plenty of speculation on whether the payment was large or small and if it even contained a non-monetary component, such as free future travel. See more here-- http://bit.ly/2qc5sCg and http://lat.ms/2qd4Z5D and http://cnnmon.ie/2qcRFy2

Happy New Year from Orlando Mediator!

It has been almost five years since this blog was created by Orlando Mediator, Lawrence H. Kolin, to explore issues and trends in dispute resolution. In that time, this weblog has become an officially-listed "Blawg" of the American Bar Association's ABA Journal. My full-time alternative dispute resolution (ADR) practice has continually evolved since first becoming certified in 2001 in Circuit-Civil and County mediation by the Florida Supreme Court. I have recently joined the prestigious national ADR firm, Upchurch Watson White & Max, known for facilitating reasonable agreements to resolve difficult issues. I continue to handle resolutions of complex cases in state and federal trial courts, as well as appellate mediation. Though litigation costs remain high, filings have slowly risen as the economy finally recovers, with early settlements still popular in business cases. Pre-suit mediation can be effective if the parties have enough information to evaluate their positions in the potential litigation. Another development has been the advent of electronic discovery in state courts and the struggle by judges and lawyers to get a handle on the necessity and expense of producing and exchanging data in proportion to the amount in controversy. Routine early mediation of these e-discovery issues by an experienced E-Neutral can actually help narrow the scope of electronically stored information (ESI) and return the focus of the parties to the merits of the case. I look forward to another great year of highlighting the current news and latest directions ADR is taking in the 21st Century. Thanks for joining me along the way!

E-Discovery Challenges Can Be Overcome Through Mediation

According to a recent article in Law Technology News by William Hamilton, Executive Director of University of Florida's E-Discovery Project, United States Magistrate Judge John Facciola of the District of Columbia-- with whom I've had the honor of serving together with as a panelist at last year's Innovate conference-- presented on coming changes at last week's Fall 2014 Distinguished Lecture. Judge Facciola opined that E-Discovery cooperation is designed to address the problem of asymmetrical attorney competence. Transparency, he said, is consistent with advocacy and competency. Failures often occur when less sophisticated practitioners make incorrect representations to the court and opposing counsel. A lack of transparency can be cover for incomplete preparation and research about the case and the relevant ESI. According to the article, Judge Facciola also said discovery disputes are a cry for help. As such, a new mode of case management that aggressively intercedes early in the case can address electronic discovery challenges. With aggressive case management, failure may be averted according to the judge. Similarly, E-Neutrals or mediators specializing in complex cases involving electronic evidence 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 the merits 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. As the wise judge said, “Litigation is about something—and it is not the back up tapes." The judge, who is retiring soon, emphasized that extraordinary costs of ESI litigation are driving small companies and the middle class out of the system, “I did not become a judge to be a hall monitor in a playground where only the rich can play.” The article appears here-- http://bit.ly/1rqJL9b and the full UF presentation is available here-- http://www.law.ufl.edu/academics/institutes/icair

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

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.” Podcast introduction: http://aceds.org/aceds-ediscovery-mediation-podcast-with-lawrence-kolin Listen to .mp3 here: http://aceds.org/sites/default/files/ACEDS%20Mediation%20Podcast%20with%20Neutral%20Lawrence%20Kolin.mp3

ENE - Early Neutral Evaluation

Perhaps because of the still struggling economy or the realization during the recession that the cost of litigation is not trivial, Early Neutral Evaluation (ENE) as a form of ADR has returned. This process, popular out West, is an offshoot of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment of the merits of the case by a neutral expert in an early "reality check" for clients and lawyers. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management planning. A confidential exchange of factual information can help facilitate settlement discussions, once requested by the parties. A neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel. Following presentations, the evaluator identifies areas of agreement, clarifies and focuses the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. The parties' formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but hopefully with the litigants better informed as to the risks, work still necessary and the monetary aspects of continuing on a track toward trial. A new publication from the ABA this year on ENE outlines the process - http://bit.ly/y49Y1u

Why did things go better out West?

Just as Florida ended its mandatory foreclosure mediation program, the Justice Department praised Nevada's foreclosure mediation program in a recent report saying it provides a road map for other states to follow in addressing the continuing fallout from the housing crisis. Nevada, much like Florida, has some of the highest numbers of foreclosure filings in the country. In the report, data recorded by program staffers shows that since that program started, 13,813 Nevada homeowners participated. Of those, nearly 3,900 homeowners obtained loan modifications that allowed them to stay in their homes. More than 2,000 others agreed to foreclosure alternatives, such as short sales. Much like Florida, remaining participants of failed mediations blamed lender required documents or representatives without authority to take action. A drop-off in filings following robo-signing scandals may have skewed success, as well. However, the Justice Department apparently evaluated how states addressed the foreclosure crisis and singled out Nevada's program for developing policies and procedures other states could implement. See article - http://bit.ly/wg9N7O

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: http://latimesblogs.latimes.com/dodgers/2011/11/dodgers-fox-head-to-mediation.html

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: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202524627002&A_changing_paradigm&slreturn=1