A recent U.S. District Court opinion has tested the ethical rules barring mediators from representing a party in a subsequent matter that is "identical" or "substantially related" to the mediated matter. It found that, at least in the case before the court, that test had not been satisfied and the...
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...
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...
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...
For many years, the New Jersey Court Rules have empowered certain judges to issue Orders of Referral to Mediation. Administered by the state's Administrative Office of the Courts, the New Jersey mediation program was way ahead of its time and has prompted tens of thousands of civil mediations. The program is about...
Thanks to Paul Lurie's remarkable list-serve, we have a draft of Tom Stipanowich's paper from the 2010 Fordham Conference, titled "Revelation and Reaction: The Struggle to Shape American Arbitration." Concentrating on two of what Stipanowich predicts with be a new "trilogy" of formative Supreme Court arbitration decisions, Stipanowich places both Stolt-Neilsen v....
Recently this blog featured a post about a mediated settlement agreement that was enforced because it was memorialized in a written document containing the agreement's essential terms. Here we have the obverse: A case that was decided in the same month -- July 2010 -- in which a mediated settlement agreement was held unenforceable...