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Court Refuses to Compel Mediation When Party Seeks Determination on Merits
January 8, 2015
A motion to compel mediation by plaintiffs in a class action case was denied by a federal court due to defendants’ assertion that they would not settle because they desired a dispositive ruling from the court. The court noted that requiring mediation in this circumstance would increase attorneys’ fees pointlessly, but that the court would again determine whether mediation might be useful to the parties later in the case. Darrington v. Assessment Recovery of Washington, LLC, No. C13-0286-JCC...
January 8, 2015
A motion to compel mediation by plaintiffs in a class action case was denied by a federal court due to defendants’ assertion that they would not settle because they desired a dispositive ruling from the court. The court noted that requiring mediation in this circumstance would increase attorneys’ fees pointlessly, but that the court would again determine whether mediation might be useful to the parties later in the case. Darrington v. Assessment Recovery of Washington, LLC, No. C13-0286-JCC...
One Per Occurrence Limit per Policy Period or One Per Occurrence Limit . . . Period?
January 7, 2015
Liability insurance policies written on a per occurrence basis generally provide coverage for losses that occur during the policy period and arise out of an “occurrence.” In general (and subject to policy definitions) “occurrence” means not only a temporally discrete accident or event, but also “continuous exposure” to the same harmful conditions. Such “continuous exposure” may occur during more than one consecutive policy period and cause what is, for all intents and purposes, indivisible,...
January 7, 2015
Liability insurance policies written on a per occurrence basis generally provide coverage for losses that occur during the policy period and arise out of an “occurrence.” In general (and subject to policy definitions) “occurrence” means not only a temporally discrete accident or event, but also “continuous exposure” to the same harmful conditions. Such “continuous exposure” may occur during more than one consecutive policy period and cause what is, for all intents and purposes, indivisible,...
Initiating Litigation Isn’t Refusing Mediation If Other Party Hasn’t Sought It
January 7, 2015
A mediation provision in a real estate contract required a party who refused to mediate and then lost in litigation to pay the other party’s attorneys’ fees. A federal appellate court, however, concluded that there must be a request for mediation before there could be a refusal; simply filing the litigation was not sufficient to prove a refusal to mediate. Thus, since the defendant who prevailed in the litigation had not sought to mediate, the plaintiff had not refused and was not responsible...
January 7, 2015
A mediation provision in a real estate contract required a party who refused to mediate and then lost in litigation to pay the other party’s attorneys’ fees. A federal appellate court, however, concluded that there must be a request for mediation before there could be a refusal; simply filing the litigation was not sufficient to prove a refusal to mediate. Thus, since the defendant who prevailed in the litigation had not sought to mediate, the plaintiff had not refused and was not responsible...
First Circuit Uses Its Thesaurus and Denies Motion to Compel Arbitration
January 7, 2015
In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court's denial of plaintiff's motion to compel...
January 7, 2015
In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court's denial of plaintiff's motion to compel...
Arbitration Award Enforcement Practice Website and Arbitration Award Practice Blog
January 6, 2015
Last week Loree & Loree launched its Arbitration Award Enforcement Practice Website, which is designed to highlight the award enforcement and challenge services we offer as part of our arbitration and arbitration law practice (referred to in our website as our Arbitration Law, Practice & Procedure practice, but what’s in a name?). As part and parcel of that, the website also provides what we hope will be some useful general information about the Federal Arbitration Act and proceedings to confirm,...
January 6, 2015
Last week Loree & Loree launched its Arbitration Award Enforcement Practice Website, which is designed to highlight the award enforcement and challenge services we offer as part of our arbitration and arbitration law practice (referred to in our website as our Arbitration Law, Practice & Procedure practice, but what’s in a name?). As part and parcel of that, the website also provides what we hope will be some useful general information about the Federal Arbitration Act and proceedings to confirm,...
2014: The Year of Arbitrator Authority
January 6, 2015
A lot of interesting arbitration law was made this year, on topics from validity to vacatur, but the banner issue was arbitrator authority. SCOTUS announced that theme for the year with its BG Group decision in March and federal and state courts around the country ran with it. [Warning: this post is a doozy. Get comfortable. Like my cat in the picture.] Arbitrator Authority What did we learn about arbitrator authority? Well, SCOTUS reminded us in BG Group PLC v. Republic of Argentina that...
January 6, 2015
A lot of interesting arbitration law was made this year, on topics from validity to vacatur, but the banner issue was arbitrator authority. SCOTUS announced that theme for the year with its BG Group decision in March and federal and state courts around the country ran with it. [Warning: this post is a doozy. Get comfortable. Like my cat in the picture.] Arbitrator Authority What did we learn about arbitrator authority? Well, SCOTUS reminded us in BG Group PLC v. Republic of Argentina that...
Discovery for Mediation in California Doesn’t Make Data Confidential
January 6, 2015
Applying California law, a federal court concluded that data provided in discovery prior to mediation was not confidential...
January 6, 2015
Applying California law, a federal court concluded that data provided in discovery prior to mediation was not confidential...
Hard Data on ADR Practice
January 5, 2015
There may be some serious ADR practitioners who have not heard of Tom Stipanowich’s recent articles analyzing the results of the CCA survey on trends in commercial arbitration. And for those few folks, I copy Tom’s note to me, along with the links: We are pleased to announce the publication of two articles that present extensive new data on practices and trends in commercial arbitration, including results from and analysis of a groundbreaking empirical survey of perceptions and practices among...
January 5, 2015
There may be some serious ADR practitioners who have not heard of Tom Stipanowich’s recent articles analyzing the results of the CCA survey on trends in commercial arbitration. And for those few folks, I copy Tom’s note to me, along with the links: We are pleased to announce the publication of two articles that present extensive new data on practices and trends in commercial arbitration, including results from and analysis of a groundbreaking empirical survey of perceptions and practices among...
The Role of Emotions in Effective Negotiations
January 5, 2015
A simple view of negotiation presents a cold transaction between what one person has and what the other person is willing to pay for it. If the price is right, the deal gets done. As anyone who has recently bought a car or sold a house knows, however, negotiations are rarely so dispassionate. As soon as the checkbook comes out a flood of emotions comes out with it—fear, anxiety, competiveness, anger, annoyance—all of which can influence what either side is willing to accept. Emotions such...
January 5, 2015
A simple view of negotiation presents a cold transaction between what one person has and what the other person is willing to pay for it. If the price is right, the deal gets done. As anyone who has recently bought a car or sold a house knows, however, negotiations are rarely so dispassionate. As soon as the checkbook comes out a flood of emotions comes out with it—fear, anxiety, competiveness, anger, annoyance—all of which can influence what either side is willing to accept. Emotions such...
Early Neutral Evaluation
January 5, 2015
Early Neutral Evaluation (ENE), also referred to as case evaluation or early case assessment, is a fairly recent addition to the types of alternative dispute resolution techniques available to practitioners and the courts. Pioneered in the 1980s by Judge Wayne Brazil of the Northern District of California, ENE is an “informal process in which a third-party evaluator provides a non-binding evaluation of the matters in controversy, assists the parties in identifying areas of agreement, offers...
January 5, 2015
Early Neutral Evaluation (ENE), also referred to as case evaluation or early case assessment, is a fairly recent addition to the types of alternative dispute resolution techniques available to practitioners and the courts. Pioneered in the 1980s by Judge Wayne Brazil of the Northern District of California, ENE is an “informal process in which a third-party evaluator provides a non-binding evaluation of the matters in controversy, assists the parties in identifying areas of agreement, offers...
