Business Conflict Blog

Two recent court decisions have bubbled through the cyber-community of ListServes and blogs.  Both address attorney disqualification — one in the context of a mediation and the other in the context of an arbitration.  The latter is featured here and the former will be described in a subsequent posting.

In Northwestern National Insurance Company v. Insco, Ltd, 11 Civ. 1124 (SAS) (S.D.N.Y. October 3, 2011), the court granted a motion  to disqualify the law firm of Freeborn & Peters LLP from continuing to represent its client Insco in an ongoing arbitration.   In deciding the motion the court (a) found that it, and not the arbitration Panel, was the proper forum for such relief, and (b) determined that Freeman’s solicitation, receipt, study and use of approximately 130 e-mails between the Panel members, some containing deliberations of the Panel, was an egregious breach of its ethical duties, meriting disqualification. Read more »

Tags: Arbitration, Courts

In New Jersey, the Superior Court Appellate Division recently approved for publication a decision in which a party to a mediation successfully sought to enforce a settlement agreement reached orally but not commited to writing during the mediation.  The objecting party had claimed that (a) the New Jersey Rule pursuant to which the mediation took place required a writing in order for the settlement to be enforceable, and (b) the purported agreement was the product of coercion by the mediator.

Of particular interest, the party seeking enforcement “supported the motion with a certification of their attorney and the mediator,” who also was deposed and testified at the hearing.

Of even more particular interest, the parties in this General Equity action selected a retired (and unnamed) Superior Court Judge as mediator.  The trial judge on the motion found his former colleague’s testimony “highly credible.”  Imagine that!

Read more »

Tags: Courts, Mediation

Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.  On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.

Denying that he had “anything new to say to experienced mediators,” Brazil instead posed the questions: What can mediators contribute to shaping the future?  How does court-mandated mediation fit in our system of justice?  Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations? Read more »

Tags: Courts, Public Policy

The Supreme Court has ruled (again) that state laws purporting to condition the enforceability of arbitration agreements on grounds not ennumerated in Section 2 of the Federal Arbitration Act are themselves unenforceable on Supremacy grounds.  I teach that principle in my class using Southland v. Keating, and now I can use this more recent case.

Many smarter and more sophisticated students of arbitration law will provide commentary on the AT&T Mobility decision, but I was struck by an article in the same day’s New York Times noting that, after waiting nine years, the family of Mark Bavis, a passenger on one of the planes that rammed into the World Trade Center, is about to go to trial in its wrongful death suit against United Airlines and other defendants.

What’s the link?  Both claimants were offered full reimbursement for their loss.  Both rejected the offer — not because they thought it inadequate, but because they wanted to prove something other than damages. 

What is it that Americans seek, in the expensive, protracted and uncertain world of the courts, when they don’t seek damages for their injuries, but proceed with the horrors of litigation litigation anyway?

Read more »

Tags: Arbitration, Courts, Public Policy