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A Very Recent Practice Tip to Consider

Posted By Administration, Thursday, February 11, 2016

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.

James Coben, speaker at VBA's 126th Annual Meeting Jan. 21-23, 2016, in WilliamsburgOur 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?

Tags:  litigation arising from mediations  practice tip  Professor James Coben  The Virginia Bar Association  VBA 

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Comments on this post...

Deborah Blevins says...
Posted Friday, February 12, 2016
This reminds mediators to never take for granted one of the basic skills we are to bring to the table: setting ground rules.
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Jeanne F. Franklin says...
Posted Tuesday, April 26, 2016
Absolutely. For some reason it can be an easy step to skip over in the course of remembering everything else during preparation and opening joint session.
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