No blizzard could stop the Joint ADR Committee from holding its special CLE scheduled for January 22, 2016, in Williamsburg at the Annual Meeting of The Virginia Bar Association.
Our speaker, Professor James Coben of Minnesota, could not fly in because of the weather, but the show went on as a result of deft VBA staff maneuvers. Equipment was found and set up. Professor Coben appeared via Skype, and council member Jim Cosby “pushed the slides” and facilitated audience interaction. The program was really good and somewhat different.
Our presenter summarized the trends and themes he has noted in litigation in federal and state courts arising from mediations. His organization of the information allowed audience members who function as advocates or as neutrals to take away their own practice tips derived from a wish to avoid the litigation snares others have had to deal with.
One such takeaway is the importance of the mediator being very clear with parties in advance as to how the process will work and how the mediator will manage it. A party’s failure to observe the agreed-upon process and ground rules can, in the long run, work against the party that does so.
One case involved a party who lost control, invaded a caucus room and issued a challenge or threat to the other before leaving the mediation. When the shocked party in caucus eventually gathered its wits, it did exactly what the angry party suggested: it fired him. A later lawsuit by the fired individual for retaliatory firing was rejected by the court -- partly on the grounds that a party that does not adhere to the mediation framework set up by the mediator should not be rewarded for misbehavior.
What do you think?