In his article, “The Disappearance of Civil Trial in the United States,” Yale Law School professor John H. Langbein explored the factors leading to civil trials having all but “vanished.” He concluded that the largest single cause of the decline in the number of jury trials was the robust and extensive fact discovery promoted, if not mandated, by the adoption of the Federal Rules of Civil Procedure.
A recently published book chronicles the decades-long work of Hans Rosling, a social scientist and international professor of health. The book, “Factfulness,” published in the spring of 2018, reveals how human instincts and intuition lead the majority of people to see the world incorrectly.
In the 25 years since Ross Stoddard’s first program on mediation, he has conducted over 4,500 additional mediations. This highlights the growth of the mediation process in Indiana and in all other states.
Here is a quick look back at some interesting observations about mediation from journals and law review articles in 2017.
As the mediation process has evolved, one of the most significant changes is the trend in many jurisdictions, and among many lawyers and mediators, to dispense with the initial joint session. Perhaps because most of today’s litigators did not have experience with the pre-mediation settlement process, some of the fundamental factors and dynamics that make the joint session important in the settlement process are not evident.
The phenomenon known as the “vanishing trial” has been a topic of serious discussion, and in some quarters, serious concern, since statistics showing a marked decline in the number of criminal and civil trials were first reported in 2004.
The tendency for decision-makers to respond first with an intuitive (and often wrong) response has significant implications for both mediators and advocates.
The preamble to the mediation rule could have easily provided, as do the rules of golf, that the mediation rules are guided by the historical principles of the legal profession and the importance that mediation be conducted with integrity and in accordance with these principles.
Although mediation became the main thrust of the ADR Rules, mediation as now known was not the central feature of the rules originally proposed.
The recent Indiana Court of Appeals decision Jonas v. State Farm Life Ins. Co., ____N.E. 3d ______, 2016 WL 1248589 (Ind. Ct. App. 2016) highlights several issues concerning mediation and settlement in both state and federal courts.
Comments following the DirecTVdecision have been consistent: Unless Congress acts or the makeup of the court fundamentally changes, mandatory arbitration of consumer disputes and the corresponding limitations of some remedies (such as class actions) is here to stay.
A recent Indiana Court of Appeals opinion reaffirmed prior Indiana cases holding that settlement agreements, whether reached with or without mediation, are governed by the general principle of contract law and generally not required to be in writing.
The legal malpractice case of Cassel v. Superior Court of Los Angeles County, 244 P. 3d 1080 (2011), continues to ricochet through the California mediation community and court system, and the issue it raised is now headed to the Legislature.
Are statements, offers and demands made during a mediation admissible in a bad-faith case? This issue is presently pending before the 9th Circuit Court of Appeals and is being watched by many in the mediation community with the hope it will clarify to what extent exceptions will continue to be created to the mediation confidentiality statutes.
Mediation got an early and strong foothold in California in the late 1980s and that state has been an incubation site for several trends in the mediation process – some good, some bad and some perhaps a little ugly.
Attorney and mediator John Van Winkle discusses the difficulties that occur when mediation confidentiality provisions collide with long-established contract common law.
John Van Winkle writes that the incorporation of all or parts of the Uniform Mediation Act into the Indiana ADR Rule 2 covering mediation would bring clarity to the scope and extent of confidentiality in mediation.