Supreme Court invites comment on numerous rule changes
The Indiana Supreme Court is seeking comment from the bench, bar and public on several proposed amendments to various Indiana court rules.
Alternative Dispute Resolution
Articles
Law Student Outlook: Thoughts on mediation, negotiation and other forms of ADR
Despite our continued interest in litigation, we are here to report that we certainly like what we have found in and are open to future possibilities in alternative dispute resolution. We have also come to recognize that just because our interests lean toward litigation does not mean that we will not encounter and utilize skills such as negotiating that maybe are not seen as being traditionally within a litigator’s area of expertise.
Reversal: Small claims courts cannot order mediation, ADR
Parties cannot be ordered to participate in alternative dispute resolution in small claims proceedings, the Indiana Court of Appeals ruled Thursday, reinstating a dog-bite case that an Indianapolis judge had dismissed after litigants refused to participate in court-ordered mediation.
Taking a seat at the table: Women neutrals underrepresented in some fields
In the field of alternative dispute resolution, diversity appears to be making fewer gains than in the legal profession as a whole. A 2018 article in the ABA Journal reported that, generally, studies show women comprising around 20% of the national ADR field. Similarly, American Bar Association Resolution 105 calls dispute resolution “arguably the least diverse corner of the profession.”
French: Predicting mediator’s agenda key to success
Mediation results in a settlement more than 85% of the time. However, getting to “yes” is hard work — especially for the mediator. While we lawyers do a great job of advocating in mediation, we could do more to make the process more productive, and perhaps improve the likelihood of settlement, by focusing on developing the mediator’s agenda in advance of mediation.
Rudolph & St. Pierre: Anyone worried about attorney-client privilege in mediation?
Your client wants to bring a nonparty friend/significant other/family member to mediation, but you worry that the presence of a nonparty will allow opposing counsel access to the substance of your mediation-related communications with your client. Is this worry justified?
Brown: It’s never too late to learn, especially from fellow mediators
Although I’ve been at this law thing for a while and have mediated cases over the last 10 years, I always find value in hearing about the experiences and strategies of others who have accumulated the awareness and wisdom of playing peacemaker on a regular basis.
Lewinski: Challenged to “Locke” into a property rights resolution
In the curriculum for business ethics that I teach to students at Butler University’s Lacy School of Business, we cover John Locke and his notion of private property rights – natural rights that existed for each individual in the state of nature. Locke contended that men left that state of nature, in part, because the challenge of enforcing those rights led to a state of war. In more than 30 years of real estate litigation practice, I have seen what often looks like that state of war play out between litigants.
Restorative justice mediation fosters accountability, lets victims be heard
Mediators who work in restorative justice programs around Indiana say the program allows offenders and victims the chance to see each other as human, and perhaps increase accountability and understanding.
Neutral Corner: Why did trials ‘vanish,’ and what is the lesson for mediation?
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.
In labor arbitration class action, 7th Circuit asks, ‘What happens next?’
A wage and hour lawsuit that would have followed precedent became a case of first impression in the 7th Circuit Court of Appeals with a ruling that held that while employers can prohibit class action arbitration, the district court, not the arbitrator, answers the questions about what can be arbitrated.
New Notre Dame research effort boosts private law program
Notre Dame Law School students interested in the area of private law now have a chance to further their studies with assistance from a research program introduced last week.
Construction attorneys say contract disputes remain most common
Of all of the things that can go wrong during a construction project, a contractual dispute is the most likely problem. A recent report found that such disputes take, on average, 18 months to resolve — an increase over 2016.
Collection agency’s extensive delay waives arbitration right
The 7th Circuit Court of Appeals affirmed the denial of a collection agency’s delayed motion to compel arbitration when it found the agency had inadequate explanations for its delay and had waived any right to arbitrate.
COA sends houseboat dispute to arbitration
A dispute between the purchasers and supplier of a Daviess County houseboat must go to arbitration after an Indiana appellate panel determined a trial court ruling did not overrule an arbitration clause signed by both parties.
Justices expand online CLE, CME credit hours
Lawyers and judges can now take twice as many hours of continued legal education through online programming per three-year period after the Indiana Supreme Court amended an existing rule to education requirements. Similarly, mediators will not be denied credit for digital programs under an amendment to continuing mediation education requirements.
Not lost in translation: Mediation with non-English speakers
When parties arrive for mediation and extend their hands in greeting, James Browne understands the cultural differences that can be conveyed in the handshake. Browne, partner at Goodin Abernathy LLP in Indianapolis, has been a registered mediator since 2010 and offers bilingual mediation services.
COA: Arbitration agreements in investment case enforceable
After a married couple that filed a complaint against their retirement investors for significant decreases in investment funds appealed a trial court order to compel arbitration, the Indiana Court of Appeals concluded arbitration agreements between the parties were enforceable and subject to the Federal Arbitration Act.
IU McKinney professor launches arbitration center for international businesses
Through SmartArb, professor Emmert hopes to provide a cheaper, more efficient method of dispute resolution for international businesses through arbitration rather than litigation. SmartArb responds to a need identified by the developing World Trade Center-Indianapolis.
Attorneys, arbitrators: #MeToo isn’t changing employment arbitration agreements
The national movement to bring awareness to sexual harassment has stirred a conversation about how workplace harassment claims are resolved. Many victims’ rights advocates have spoken out against arbitration procedures mandated through employment contracts, saying the process is designed to silence victims and keep them out of court.