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July 11, 2020
Victoria Pynchon’s Settle It Now blog is on my daily list, and a recent post brought to our attention an interesting study on whether, by certain objective standards, attorneys get in the way of mediators’ work.
The use of technology in Alternative Dispute Resolution processes has been widely discussed: the spread of communication technology, the introduction of Regulation from the European Union….
I love the ABA Section of Dispute Resolution annual conferences. They always put on a wide array of wonderful sessions and it’s a great time to connect with friends, old and new. As in the past, I am listing some sessions that particularly intrigue me.
My posts typically deal with insights I’ve gained in my career as a mediator. That said, mediation is what I do. It’s not who I am. I’m a son, a husband, a father, a grandfather, a friend, a lawyer, a partner, a Christian — and so many other things, in addition to being a mediator. In that regard, you’re the same as I am. The many different hats you wear in life contribute to who you are, and what’s genuinely important to you.
One of the issues before the Court is particularly interesting: Whether a delegation clause vesting in an arbitrator questions of arbitrability of a claim has the effect of removing from a court any power to determine whether the court has jurisdiction to grant a motion to compel arbitration.
The Supreme Court has granted certiorari to review the decision of the 1st Circuit in Oliveira v. New Prime, Inc. (No. 15-2364, May 12, 2017). One of the issues before the Court is particularly interesting: Whether a delegation clause vesting in an arbitrator questions of arbitrability of a claim has the effect of removing from a court any power to determine whether the court has jurisdiction to grant a motion to compel arbitration.
JAMS Rule 11(b) provides: “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought ? shall be submitted to and ruled on by the Arbitrator.
Most of my readers are lawyers. Many of you are litigators — for whom mediation has become a preferred tool for resolving most of your cases. Typically, I’m assuming, you see mediation as a process where you can confidently come together with other parties involved in litigation, call a timeout, and determine if the parties can reach an agreement to resolve the case. This is how I’m asked to lead mediations about 95% of the time.
I would say all of those cases were ripe for mediation at the time I was asked to mediate them. How can that be? Simple. In each case, the attorneys/parties had the right information, and a strong enough desire to settle, in order to make good decisions. Could those cases, which were further into the judicial process, have been resolved sooner? Possibly. But in retrospect, I don’t think they were ready until we mediated them.
“Joint sessions are a waste of time,” said the judge conducting a mediation in which I was representing one of the parties. In that mediation I was asking for a joint session, but the judge still blocked us from doing one because the other side would not agree….
Thanks to Loyola Prof. Imre Szalai for bringing to our attention the interesting Ninth Circuit decision in Breazeale v. Victim Services, Inc., holding that disputes between a putative criminal defendant and a private company contracted by a prosecutor pursuant to a criminal diversion process are not subject to arbitration.
Regardless of the hat I’m wearing at the time — mediator, litigator, friend, brother, husband, father, and now grandfather — I struggle with the desire to be right. Always right. I recently read a post on the Mediate.com blog by Loraine Segal entitled The Seductiveness of Being Right. St. Augustine, a pillar of the early church, regularly prayed “Oh Lord, deliver me from the lust of always vindicating myself.” Can you identify with this? The desire to be right truly is seductive, and it’s not helpful.