Mediator Mallory Stevens sends the provocative summary of a recent meeting of the World Mediation Organization, via Maria Volpe’s ListServe (reproduced with Ms. Stevens’ permission): Read more »
The Ninth Circuit, and California courts in particular, have been very strict in maintaining the confidentiality and inadmissibility of statements made during mediation. Two recent cases have allowed such statements to be admitted, on interesting grounds. An Arizona District Court decision allowing mediation statements was affirmed by the Ninth Circuit on grounds of both federal law of evidence and theory of waiver. And a California District Court permitted evidence of mediation statements to be presented to a jury on notions not only of waiver, but of due process.
(Tip of the hat to Clinton Burke, Jacob Glasser and J.D. Hoyle, whose summaries of these and other cases appear in the Summer 2014 issue of Dispute Resolution Magazine.) Read more »
The Unified Court System of the State of New York is considering a modification to its Rules that would require attorneys to include in their letters of engagement reference to the ADR options and resources available at the courts’ web site.
The proposal (available here) is subject to public comment until September 8 at email@example.com. The suggestion may be a unique one.
I know that Colorado has an ethical requirement that its attorneys advise clients of alternatives to litigation, and of course many states have court-annexed programs either encouraging or requiring mediation of litigated cases. But I am unaware of a Court Rule requiring attorneys to give notice of the availability of ADR in the course of their being engaged.