Rodney L. Lewis | Polsinelli | September 24, 2019
Law and policy
Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?
Alternative dispute resolution (ADR) is a programme that encourages settlements outside the traditional enforcement process. ADR’s purpose is to help parties find mutually satisfactory solutions to their problem at a reduced cost (https://www.fec.gov/legal-resources/enforcement/alternative-dispute-resolution/).
Conciliation is an ADR method whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together to resolve any differences between the parties. In this process, after meeting with both parties the conciliator prepares a compromise that he or she feels is a fair disposition of the matter in dispute. Conciliation is used to avoid taking a case to trial. (https://definitions.uslegal.com/c/conciliation/).
Mediation is an informal negotiation assisted by an impartial third party (the mediator) that encourages disputing parties to craft their own solutions (https://www.adr.org/Mediation).Mediation models
What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?
In the United States, forms of mediation may be traced back to the country’s earliest history dating back to the dispute resolution methods used in Native American society. The concept of court-sponsored mediation was brought by the early settlers from England.
In the early 20th century, mediation expanded in response to disruptive labour disputes. Mediation was used as an attempt to avoid strikes and the disruption that ensued when talks between labour and management broke down. The earliest attempts at legislation relating to mediation occurred in the late 1970s and early 1980s.
Today, mediation is common in civil and administrative agency matters. Mediation is widely relied upon to ease the burden on the courts and as a means to more cost-effectively resolve disputes between the parties than litigation. The public policy benefits of reducing the backlog of cases on the courts’ dockets are substantial. Similarly, mediation reduces the cost of resolving a dispute because mediation is less expensive than the high cost of litigation.
Data on mediation is limited in some respects, specifically success rates, etc, because most mediations are confidential and results are generally not reported. The Office of Dispute Resolution of The United States Department of Justice on the Use and Benefits of Alternative Dispute Resolution in its Fiscal Year 2016 Report found a 75 per cent and 52 per cent resolution rate in voluntary ADR proceedings and court-ordered proceedings, respectively (see www.justice.gov/olp/alternative-dispute-resolution-department-justice).
Domestic mediation law
Are there any domestic laws specifically governing mediation and its practice?
In the United States there is no governing or regulatory body for mediation. Associations such as the American Bar Association and the American Arbitration Association provide standards that are well respected in the practice of mediation. Most states have individual laws governing mediation, which have evolved over time. There have been several attempts to develop uniform domestic mediation laws in the United States. Two notable statutes are described below.
In 1998, the United States Congress adopted the Alternative Dispute Resolution Act (www.adr.gov/pdf/adra.pdf), requiring all federal trial courts to implement ADR and granting judges authority to send a case to mandatory ADR procedures, including mediation.
Several states have attempted to coordinate their legislation by adopting the Uniform Mediation Act (UMA, www.uniformlaws.org/Act.aspx?title=Mediation%20Act) or adopting the state’s own mediation statute with similar provisions.
Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?
The United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Convention) on 20 December 2018. The Convention is an important step towards ensuring an efficient and harmonised framework for cross-border enforcement of settlement agreements resulting from mediation. A signing ceremony for the Convention was held in Singapore on 7 August 2019, and the Convention will come into force once it is ratified by at least three member states. It remains to be seen which member states will sign the Convention.
Incentives to mediate
To what extent, and how, is mediation encouraged in your jurisdiction?
Public policy in the United States favours mediation. Mediation encourages communities to settle disputes, maintains parties’ relationships after their disputes, and it allows for more appropriate remedies than adjudication. Some states require mediation of certain disputes, requiring mediation through state statutes or before a party request assistance from state institutions. Courts further encourage mediation by enacting statutes to protect the confidentiality of mediation procedures.
See Sarah R Cole at al, Mediation: Law, Policy & Practice app. A (2013-2014 ed. 2013) (cataloguing statutes from all US jurisdictions that contain ‘mediation’).
Sanctions for failure to mediate
Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?
Mediation is an effective method to resolve disputes but to be effective, all parties must participate in good faith. Generally, sanctions are not imposed for failure to participate in good faith in voluntary mediation, but the requirement of good faith participation in voluntary mediation is trending. Most court-mandated mediation requires parties to attend with settlement authority, submit a pre-mediation memorandum on their position, and participate in good faith. Although court-ordered mediation does not require settlement, sanctions may be imposed if a court concludes that the mediation was not conducted in good faith.
Federal Rule of Civil Procedure 16 includes a provision detailing possible sanctions for failure to participate in good faith in settlement conferences. A large percentage of states also have statutory requirements of good faith. For example, under California’s Fire and Marine Insurance Mediation Code Chapter 8.9 – section 10089.81, parties to a mediation proceeding are required to negotiate in good faith and ‘have the authority to immediately settle claims’. Many federal district courts and state courts have local rules that require good faith participation in mediation. Generally, failing to appear at the mediation, and blatant disregard for court orders is defined as bad faith participation. See Edward F Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required? SMU L. Rev. 2079, 2090-91 (1993). If a party feels the opposing party to court-ordered mediation has failed to participate in good faith, that party should file a motion with the court seeking sanctions.
Prevalence of mediation
How common is commercial mediation compared with litigation?
Owing to the confidential nature of mediation, there is a small sample size of reports comparing commercial mediation to litigation. Nevertheless, commercial mediation has grown due to an increase in state and federal laws that promote mediation through regulations. There has also been an increase in the use of mandatory mediation clauses in private contracts. Courts have encouraged mediation to decrease their dockets and because mediation is cost-effective, more efficient, and it allows parties to develop unique resolutions to their dispute. Accordingly, states such as Florida require most parties to mediate their disputes before a court will allow them to be put on their docket.
Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
There are several professional bodies for mediators in the United States. These groups include the American Arbitration Association, the Federal Mediation and Conciliation Service, the Nation Mediation Board, the Civil Mediation Council, the Chartered Institute of Arbitrators, the US Institute of Peace, the United Nations Department of Political Affairs and the Judicial Arbitration and Mediation Services. States have created their own recommendations and qualifications for candidates pursuing a career in mediation. Additionally, a mediator can practise in private settings in any state without being licensed, certified or listed. Mediator certification can also be obtained online through programs such as the National Association of Certified Mediators. Consequently, a person may pursue a career in mediation with a high school diploma and through successfully completing a mediation course.
There are also court-appointed mediators who must achieve a higher standard to pursue a career in mediation. Some states require mediator candidates to receive a JD from an accredited law school and pass their state’s bar exam. Others accept mediators with degrees in their specialisation, such as a master’s degree in social work for mediators pursuing a career in family mediation. Some states accept relevant work experience to serve as a substitute to degree requirements.
Various states require court-appointed mediators to participate in continuing professional development. For example, court-appointed mediators in Idaho are required to complete five hours of continuing mediation training every three years; Maryland requires mediators to complete four hours of continuing mediation education per year; Minnesota requires mediators to complete 18 hours of continuing mediation education every three years; Mississippi requires mediators to complete six hours of meditation-related training every two years; and New Jersey requires its mediators to complete four hours of continuing mediation training every year.
States also have implemented court rules or case law creating immunity for mediators. This immunity insulates mediators from most civil liability for wrongdoing during a mediation proceeding. For example, the Southern District of Indiana Alternative Dispute Resolution, Rule 1.3 provides, ‘To the extent permitted under applicable law, each Mediator shall have immunity in the performance of his or her duties under these Rules, in the same manner, and to the same extent, as would a duly appointed Judge.’ Additionally, several state mediation statutes and court rules have allowed for mediator privileges. The range of the privilege varies based on jurisdiction.
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
There is no governing or regulatory body for mediation nor is there a uniform regulatory scheme in the United States governing the practice of mediation. Mediators are not state-licensed and there is no one formal certification process, although mediators may be trained and certified by any number of educational or court-annexed bodies, and there is no legal restriction on using the title ‘mediator’ as there is protecting the title of doctor and lawyer. There are, however, standards of conduct for mediators promulgated by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution (see www.mediate.com/articles/model_standards_of_conflict.cfm). These standards include avoiding the appearance of conflicts of interest. The federal government has developed a Mediator Code of Professional Conduct (http://admin.fmcs.gov/assets/files/OGC/MediatorCodeofConduct.doc) for mediators employed by the Federal Mediation and Conciliation Service (FMCS). The FMCS is a federal agency that provides mediation services primarily in the area of collective bargaining.
Independent claims or causes of action against mediators for malfeasance is rare. Mediators do not need to maintain a professional liability insurance policy. Many mediation institutions include a waiver of liability clause for the organisation and its mediators in their contract with the parties. The conduct of a mediator is not under the same scrutiny as the conduct of an arbitrator, because the mediator may not make any binding decisions, unlike an arbitrator.
Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
A written agreement is not required for parties to enter mediation. However, it is wise to secure it in writing. A mediation agreement can be any document that evidences the intent on both sides to enter into mediation and to make a good faith effort to reach a settlement. A standardised mediation agreement form may not always be effective because different circumstances call for different expectations (https://www.mediate.com/articles/tsur.cfm; https://lawshelf.com/courseware/entry/mediation-structure).
How are mediators appointed?
When mediation is deemed appropriate and parties agree to mediate, courts will refer the parties to an approved mediator. Courts often provide the parties with a roster of mediators who meet basic standards and requirements. The parties then choose a mediator they deem is best fit to mediate their matter (https://legalstudiesms.com/learning/court-certified-mediator-qualification-requirements/).
Conflicts of interest
Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
Mediators are often required to abide by the Model Standards of Conduct for Mediators. The Standards require mediators to decline a mediation opportunity if they cannot conduct it in an impartial manner. Mediators are also obligated to disclose both actual and potential conflicts of interest that are reasonably known to the mediator and could raise a question about the mediator’s impartiality. Some conflicts of interests include when a mediator is asked to mediate a dispute between parties, where they have an interest in or an influential relationship with one of the parties participating in the mediation, or if the mediator was previously an agent or representative of one of the parties. Mediators are required to disclose all circumstances likely to create a presumption of bias. Upon receipt of such disclosures, the parties may choose to waive such conflicts and proceed with the mediation. If a party disagrees as to whether the mediator shall serve or if the mediator’s conflicts of interest might reasonably be viewed as undermining the integrity of the mediation, the mediator shall be replaced. Failure to disclose conflicts of interests may result in sanctions and penalties. (https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf).Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
Mediation is usually charged by the hour. The cost of mediation fluctuates around the country, but the rates are minute in comparison to the costs associated with litigation. Rates typically reflect mediator’s background, training, education and experience. Some mediators decrease their rates as they book more hours, while others choose to charge a flat fee. Private mediators also offer sliding-scale services, the method of fee charging used by most court-appointed mediators. Under the sliding-scale method the fees are based on client income. (https://settlethedispute.com/cost-of-mediation-lawsuit; https://www.thumbtack.com/p/cost-of-mediation).
Counsel and witnesses
Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?
It is not uncommon for parties to be represented by lawyers in commercial mediations, but often parties represent themselves while accompanied by their lawyers.
In some instances, parties may choose to seek out or otherwise agree on a respected expert in the subject area of dispute to provide a more informed settlement (https://www.barlowrobbins.com/resources/what-is-commercial-mediation).
Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?
Organisations such as the American Arbitration Association and the American Bar Association publish guidelines for mediation procedures. These procedures are subject to modifications by the parties. A typical mediation hearing begins with the parties making a mutual agreement to mediate. Parties may also provide brief statements on the nature of their dispute and include comments on the relief they wish to seek. Before the mediation, parties also negotiate their expectations of the mediator involved. Parties will also negotiate and inform one another on who will be representing their side of the matter whether it be themselves, counsel or another representative. After the parties agree on a mediator, they wait for the mediator to clear himself or herself of any conflicts. The parties also exchange any and all materials they deem relevant and necessary for the purpose of finding a resolution to the issues at hand. Once the mediator and the parties are in mediation, the mediator is often authorised to conduct separate meetings and other communications with the parties or their representatives at any time. However, the mediator may not impose a solution on the parties, he or she may only attempt to help the parties reach a satisfactory resolution to their dispute. When the mediator and the parties have caucuses and plenary sessions, the goal is to get as much information for a resolution to come into fruition.T
olling effect on limitation periods
Does commencement of mediation interrupt the limitation period for a court or arbitration claim?
Commencement of mediation does not interrupt or toll the limitation period for a court or arbitration claim. A request for mediation may be made concurrently with the filing of a complaint (https://www.constructionrisk.com/2019/02/filing-a-mediation-demand-does-not-toll-statute-of-limitations-for-filing-suit/).
Enforceability of mediation clauses
Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?
Dispute resolution clauses providing for mediation are enforceable. In many instances, the subject matter of a contract is governed by a state statute, which automatically mandates parties to mediate a dispute. For example, federal or state labour laws may require parties to mediate their dispute if they have issues over their labour contracts. In private contracts, where there is no overriding federal or state law governing the contract, the dispute resolution clause will be subject to ordinary contract principles. Accordingly, parties will have to produce sufficient evidence to show that there was a contract according to their state law, which may include showing that there was an agreement and that the terms of the mediation clause were mutually agreed upon. Basic contract defences apply to dispute resolution clauses. Thus, a court will not enforce an unconscionable mediation clause in an agreement. In Garrett v Hooters-Toledo, the Northern District of Ohio applied Ohio law on unconscionability and found that a mediation clause in an agreement was unconscionable because it required an employee to travel from Ohio to Kentucky to participate in a mediation. Garrett v Hooters-Toledo, 295 F. Supp. 2d 774 (N.D. Ohio 2003).
Courts may order various remedies to a breach of mediation clause in an agreement. Parties seeking specific performance of a mediation clause will need to show the predicates for specific performance, such as an absence of an adequate remedy of law. Courts may also enforce a mediation clause under the Federal Arbitration Act, allowing parties to bypass proving the elements necessary to achieve relief through specific performance. Like any breach of contract claim, a party may seek damages if the other party breaches a contractual duty to mediate. The damages can include attorney’s fees and costs for having to compel arbitration. Additionally, parties may waive the mediation clause in an agreement if they file for relief in court concerning a topic that would have been subject to mediation under the governing agreement. Courts have struggled with determining whether there is harm when a party breaches a contractual duty to mediate because mediation may not always lead to a resolution.
Confidentiality of proceedings
Are mediation proceedings strictly private and confidential?
In the United States, mediation proceedings are meant to be strictly private and confidential. Confidentiality is the cornerstone of mediation because it enables parties to discuss openly the elements of their case without consequence. Confidentiality of mediation proceedings have been assured by operation of law and by agreement. Specifically, most states have statutes mandating the confidentiality of mediation proceedings. Some states’ statutes are more expansive than others. For example, Indiana Code, §4-21.5-3.5-27 provides that mediations are confidential and privileged, and the confidentiality of the procedure cannot be waived by the parties. However, Nebraska Revised Statutes, §25-2914 allow parties to agree in writing to waive confidentiality.
Moreover, many states have legislation that recognises a qualified mediation privilege modelled after the Uniform Mediation Act (UMA). The UMA provides that mediation communication is not privileged if a party seeking discovery can show that ‘the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in a criminal proceeding . . . or in a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation’ Unif. Med. Act §6(b). Additionally, some states have adopted the UMA with modifications, while other states have created their own mediation privileges that are either absolute or qualified. For example, Indiana’s Alternative Dispute Resolution Rule 2.11 provides for an absolute mediation privilege. On the other hand, the Central District of California has not extended its mediation privilege to documents that were going to be offered for a purpose other than to prove a claim or defence (Milhouse v Travelers Com Ins Co. 982 F.Supp.2d 1088, 1105 n. 10 (C.D. Cal. 2013)).
Federal courts have also implemented local rules to protect the confidentiality of mediation proceedings. The Alternative Dispute Resolution Act, section 652(d) states that ‘each district court shall, by local rule . . . , provide for the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications’. Federal courts with diversity jurisdiction (28 U.S.C. §1332) may disregard the local rules implemented by the federal courts, and instead may apply the state law statutes pursuant to Federal Rules of Evidence Rule 501. For example, in the unpublished decision of Pac Marine Ctr, Inc v Philadelphia Indem Ins Co, 2015 WL 1565362, Case No. 1:13-CV-00992-AWI (E.D. Cal. Apr. 8, 2015), the district court relied on California law to rule on mediation confidentiality. In addition to state statutes or court rules that expressly rule that mediation communications are confidential, pre-written rules and the parties’ own contractual mediation provisions can ensure the confidentiality of a mediation proceeding. For example, the Judicial Arbitration and Mediation Services adopted its Rule 11 to guarantee the confidentiality of mediation proceedings.
Accordingly, the confidentiality of mediation proceedings is not implied, in the absence of an express rule or agreement. Parties should expressly agree that the mediation proceeding is confidential, prior to the mediation, if they want to warrant the confidentiality of the mediation proceeding. Nevertheless, in certain circumstances courts may disregard confidentiality provisions and permit confidential information to be disclosed. For example, the US District Court for the Southern District of New York Rule 83.8(d) states that ‘Documents and information otherwise discoverable under the Federal Rules of Civil Procedure shall not be shielded from discovery merely because they are submitted or referred to in the mediation.’ Additionally, courts may allow confidential mediation communication if there is:
waiver; consent; finding that the process was not mediation; finding that the provider of evidence was not a mediator; finding that confidential information was not actually disclosed or that there was insufficient evidence to establish whether confidential information was disclosed; concluding the evidence was offered for a permissible purpose; or concluding the evidence was not material or its introduction constituted harmless error.
James R Coben, Peter N Thompson, ‘Disputing Irony: A Systematic Look at Litigation About Mediation’, 11 Harv. Negot. L. Rev. 43, 66-67 (2006).
The UMA also carved out exceptions to confidentially that include communications concerning ongoing criminal activity or plans to commission a crime, proving or disproving a claim of professional conduct against a mediator, plans to inflict bodily injury, and a waiver of the privilege by the parties (UMA §6(a)). While courts may allow confidential mediation communications in hearings, many jurisdictions have established rules sanctioning parties for breaching confidentiality. For example, the District Court of Appeals in Florida found that a trial court was proper in imposing sanctions on a plaintiff who knowingly and wilfully violated an agreement and pertinent statute and rule (Paranzino v Barnett Bank of S Fla, NA, 690 So. 2d 725 (Fla. Dist. Ct. App. 1997)).
What is the likelihood of a commercial mediation being successful?
Although statistics are not made public owing to the confidential nature of mediation proceedings, the general consensus on behalf of many respected entities is that mediation has a high success rate overall because parties participate in an environment where they can freely and confidently resolve their legal and factual disputes in front of a neutral third party. Some entities, such as the Department of Justice, have created a statistical summary of case reports across the United States of cases in which a private mediator conducted an ADR process. The results of the data show that in 2017, voluntary ADR proceedings had a success rate of 75 per cent. Court-ordered proceedings, on the other hand, had a success rate of 55 per cent. Additionally, the Financial Industry Regulatory Authority reported that 242 (89 per cent) of its mediated cases were settled (https://www.finra.org/arbitration-and-mediation/dispute-resolution-statistics#mediationstats; https://www.justice.gov/olp/alternative-dispute-resolution-department-justice).
Must a settlement agreement be in writing to be enforceable? Are there other formalities?
Mediation settlement agreements do not need to be in writing to be enforceable. However, the rules for settlement agreements vary from jurisdiction to jurisdiction and may require settlement agreements to be in writing to be enforceable. A rule requiring settlement agreements to be in writing works in tandem with the rules providing mediation confidentiality. An executed agreement allows courts to use its powers to enforce the written terms of an agreement or to determine whether the written terms of an agreement have been violated, without requiring the court to inquire into the confidential communications leading to the written agreement. Mediation privilege rules also preclude the enforcement of oral settlement agreements by effectively excluding evidence of conversations that created the oral agreement. For example, the UMA does not address oral mediation settlement agreements, but it addresses qualified privilege, which makes oral agreements impossible since mediation conversations that lead to an oral settlement agreement are privileged (UMA § 6(a)(1)). In addition to a written requirement, some jurisdictions require settlement agreements to be signed by the parties and sometimes their attorneys, and the settlement agreement may have to be read on the record.
In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?
Meditation settlement agreements are subject to the same rules as contracts. Accordingly, mediation settlement agreements may be challenged through traditional contract defences that include no meeting of the minds, mistake, fraud or misrepresentation, duress, undue influence and unconscionability. Settlement agreements may also be subject to technicalities unique to mediation, including issues arising as to whether the agreement was signed by the proper parties, whether the agreement was in writing, or whether the written agreement was the final agreement. For example, California Evidence Code, §1123 requires that a settlement agreement include language stating that the agreement is admissible or that it is enforceable to be admitted into court. Other challenges include standard issues of interpretation or performance, claims of unfair process or public policy concerns, and the impact on third parties.
A mediator can be called to give evidence regarding a mediation or an alleged settlement. A mediator may be called to give testimony in cases where parties are trying to enforce an oral agreement arrived at during mediation. In a study conducted by James R Coben, a professor and senior fellow at Mitchelle Hamline’s Dispute Resolution Institute, researchers found that a significant number of hearings alluded to testimony or affidavits from mediators. The substance of the mediators’ evidence included testimonies regarding the parties’ attendance, the quality of the parties’ participation, the parties’ factual admissions, the issues that were or were not discussed, the mediators’ factual assertions, the mediators’ valuation of their cases, the mediators’ proposals, the mediators’ understanding of settlement terms, the parties’ understanding of settlement terms, and coercion and duress allegations (James R Coben, Peter N Thompson, ‘Disputing Irony: A Systematic Look at Litigation About Mediation’, 11 Harv. Negot. L. Rev. 43, 59-61 (2006)).
Federal courts have implemented local rules that vary in terms of a mediator’s obligations towards confidentiality. For example, Missouri Annotated Statutes, §435.014 states no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the arbitration, conciliation or mediation. Similarly, the US District Court for the Southern District of New York Procedures of the Mediation Program, 1(a) and (d) state that mediators do not have to take part in related disputes in which the mediator served, but the mediator is also not required to produce documents used during the mediation.
Enforceability of settlements
Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?
The rules for enforcing mediated settlement agreements vary based on jurisdiction. Generally, mediated settlement agreements are enforced under the same rules as general contracts and can be enforced in a court of general jurisdiction by beginning a lawsuit. Some states may expedite enforcement of mediated settlement agreements by treating the agreements as arbitral awards in summary proceedings. Other states may impede enforcement proceedings of settlement agreements by implementing rules created by legislatures and rule makers who have crafted specialised rules governing the enforcement of settlement agreements. For example, some jurisdictions may require formalities as a precondition for enforcing mediated settlements. In Minnesota, a mediated settlement, if in writing, must explicitly state that the agreement is binding, that the parties were advised in writing that the mediator has no duty to protect the parties’ interests or to inform them about their legal rights, that signing the settlement agreement might adversely affect their rights, and that they should consult with an attorney before signing or if the parties are uncertain of their rights. Similarly, Colorado Revised States §13-22-308 provides that a mediated agreement is not enforceable unless it is reduced to writing and approved by the parties and their attorneys, presented to the court as a stipulation and approved by the court.
Stays in favour of mediation
Duty to stay proceedings
Must courts stay their proceedings in favour of mediation?
Parties engaging in mediation may petition the court for a stay of the proceedings. The court has discretion on whether to grant a stay and the grant of stay is highly dependent on the circumstances of the case. A court may be reluctant to grant a stay if, in the court’s view, a delay would have an effect on its schedule. Consequently, courts may reason that maintaining its pretrial schedule is the best way to incentivise settlement from the parties. In situations where the court grants a stay, the stays are typically only long enough to give the parties a reasonable opportunity to complete the mediation process. This situation is different from enforcing an arbitration agreement, where the Federal Arbitration Act requires a court to stay its proceedings in favour of arbitration.
Other distinctive features
Are there any distinctive features of commercial mediation in your jurisdiction not covered above?
We are not sure beyond what is already covered.
Update and trendsOpportunities and challenges
What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?Opportunities and challenges 25 What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?
The trend in commercial, administrative and consumer disputes is towards more mediation and less full-bore litigation. This is due to a focus on reduction of risk and an increased focus on early and efficient resolution of disputes. While trial takes months or years to adjudicate an issue, mediation can allow for an immediate resolution. As the costs to prosecute or defend lawsuits to judgment continue to increase, mediation will continue to become a more attractive method of dispute resolution.
Courts are also recognising this trend. By the end of this year, New York state courts are set to have a system in place to require that civil litigants participate in presumptive or required mediation, as part of an effort to continue reducing backlogs in the judiciary. Although such systems already exist in some state courts in New York, the new initiative will mandate presumptive mediation and ADR statewide. The purpose of the initiative is partly to provide an avenue for litigants to resolve legal matters more efficiently and at a lower cost.