Nearly every legal function has transitioned to a virtual format during the COVID-19 pandemic, and mediation is no exception. But the concept of online dispute resolution was gaining traction even before “coronavirus” was an everyday word.
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When the ugly weed of hate and division sprouted at the Bloomington farmers’ market last summer, it highlighted deeper conflicts in the college town and launched a community-wide mediation to address longstanding issues of discrimination and bigotry.
Recent data suggests owners, architects, contractors and others involved in the construction process are gravitating toward alternative dispute resolution. Mediation, in particular, is emerging as a preferred – and in many cases, required – option.
The legal guardian of an elderly woman housed at a Carmel assisted living facility could not convince the Indiana Court of Appeals on Tuesday that she should not be compelled to arbitration after bringing breach of contract and negligence claims against the facility for allegations of sex abuse.
The Indiana Supreme Court is seeking comment from the bench, bar and public on several proposed amendments to various Indiana court rules.
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.
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.
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.”
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.
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?
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.