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.