Airline Antitrust Mediation

The U.S. Justice Department agreed to go to mediation along with American Airlines and US Airways to try and resolve the government’s lawsuit seeking to block the proposed merger of the two airlines. The case is headed to trial this month in federal court. The parties agreed to a mediator “suggested by the court,” which is a bit unusual. The Justice Department contends the planned merger would create the world’s largest airline, thereby reducing competition and leading to higher fares. U.S. District Judge Colleen Kollar-Kotelly, who presided over the Microsoft antitrust case, is overseeing the litigation and has said in prior orders that she encourages the use of alternative dispute resolution. Though American has been in bankruptcy for two years, the parent company AMR was set to exit court protection by merging with US Airways when the federal government and a group of states sued to block the deal. If the U.S. prevails in stopping the merger, it has been reported that re-organization will have to start anew, causing disruption among creditors. See more at http://bit.ly/1axsR2f and in case 13-cv-01236 U.S. v. US Airways Group, Inc., U.S. District Court for the District of Columbia.

New AAA Rules in effect for Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators under these new rules should be better equipped to control modern discovery and the costs associated with the advent of electronic discovery. They may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. See AAA rule changes here-- http://go.adr.org/LP=307 and summary http://bit.ly/16z6r3i

Mediation Week 2013

This week has been proclaimed by Governor Scott as Mediation Week in The State of Florida. In his proclamation, the governor stated, “Court programs use mediation to effectively and efficiently resolve disputes.” For the past couple of decades, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation becomes more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. Many jurisdictions are celebrating this week in conjunction with the American Bar Association's Mediation Week. This ABA initiative is cognizant of efforts in institutionalizing mediation as one of several appropriate dispute resolution processes, and one particularly utilizing self-determination of the parties. The American Bar Association puts out a toolkit of useful ADR materials you can find here-- http://www.americanbar.org/groups/dispute_resolution/resources/mediation_week_toolkit.html

Washington needs a Mediator!

Indulge me for a moment on the crisis facing our nation. In a dozen years of mediating, I've seen this play many times. The parties have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, a mediator is necessary. As the late Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. God Bless America.

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

Detroit Deals by Multiple Mediators?

The mediation of the largest municipal bankruptcy in U.S. history utilizes judges as mediators to negotiate the most difficult disputes in trying to resolve billions in Detroit's bond and pension obligations. Proposed restructuring of obligations sparked outrage from city retirees whose pensions and benefits could be cut drastically. Hon. Gerald Rosen, Chief Judge of the U.S. District Court for the Eastern District of Michigan, was charged with overseeing confidential mediation, along with mediators of Judge Rosen's choosing. Judge Rosen appointed other mediators from the judiciary. Bankruptcy judges often utilize mediators as a way to bring together parties in private who might find it difficult to reach a consensus through a more open court process. The city and dozens of creditors launched negotiations this week in hopes of striking deals that could speed the Detroit bankruptcy case. Almost a hundred lawyers representing city pension funds, unions, retirees, the state and bondholders attended the first joint mediation session at federal court in downtown Detroit. Judge Rosen reportedly urged creditors to “Open your minds to areas where we can reach agreements.” Rosen was joined by his colleagues, including several judges from across the country. Negotiations will continue in the weeks ahead before all parties return to Detroit for additional talks next month. Portland based U.S. Bankruptcy Judge Elizabeth Perris will mediate a dispute between the city and bondholders; U.S. District Judge Wiley Daniel of Colorado was assigned to talks involving retirees; U.S. District Judge Victoria Roberts will handle mediation with unions, including the UAW and the American Federation of State, County and Municipal Employees; and Retired U.S. Bankruptcy Judge David Coar of Illinois will mediate disputes involving the Detroit Economic Growth Corp. and Downtown Development Authority. All agreed the future of the region is at stake. See news item here-- http://bit.ly/1aLDPCv

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