Huerta Mediation provides mediation and arbitration services for businesses, individuals, and the legal community. For the past twelve years, Huerta Mediation has been helping lawyers and their clients find reasonable, confidential, and expeditious resolution of their business, employment, real estate, intellectual property, securities, tort, personal injury, and insurance cases.  This is achieved in part by providing parties the opportunity to be heard and understood, and by helping parties identify and define their risks in litigation and develop creative, interest based resolutions.

MAY 2010

CASES & RESOLUTIONS:

California Appellate Court Holds Mediation Confidentiality Should Not Block Clients' Ability to Prove Claims Against Attorneys

A California appellate court split over whether clients are prevented by California's strict mediation confidentiality provisions from using evidence from mediation against their attorneys. In Porter v. Wyner, the majority concluded that mediation confidentiality is only intended to shield communications between disputants and does not apply to communications between a party and that party's attorney. After a successful mediation yielded $6.7 million relating to the education of the Porters' autistic son, the Porters and their counsel Wyner & Tiffany disagreed over payment terms between them that were worked out during the mediation. The majority of the court concluded that such attorney-client communications are not covered by mediation confidentiality, so no exception is needed to rely on them. The majority reversed the trial court and concluded that a new trial is not required due to the California Supreme Court's strict view of mediation confidentiality in its Simmons v. Ghaderi decision. The majority concluded that the attorney-client privilege covers communications between attorneys and clients, which should not be trumped by mediation confidentiality to prevent clients from waiving their privilege. It would not matter even if the mediator or opposing party were present during the attorney-client communications. However, the dissent notes that the key conversation in issue only took place due to the mediation, and that while unchallengeable attorney malpractice during mediation raises policy concerns, it is up to the legislature and not the courts to provide a remedy. Porter v. Wyner, No. B211398 (Cal. App. 2d Dist. April 8, 2010)

Information from Mediation May Be Used to Convict Party in Maine

Maine's modest mediation confidentiality provisions permit statements and conduct in mediation to be used in a separate proceeding to convict a party to the mediation. In Maine v. Tracy, the Supreme Court of Maine concluded that a car purchaser was properly convicted of forgery for presenting a bill of sale marked “paid in full” during trial, when the purchaser had not made that claim during mediation but asserted only that a small payment had been made. Maine generally has not provided for mediation confidentiality, but a limited privilege that can be asserted by mediators took effect on January 1, 2010. However, statements in mediation are not inadmissible in proceedings with third parties or in other proceedings between the mediating parties that do not involve the subject matter of the mediation. Tracy also argued that his Fifth Amendment right against self-incrimination was violated because the mediator did not warn him that information from the mediation might be admissible in other proceedings. However, the Court expressly declined to require mediators in court-ordered mediations to warn against self-incrimination. Maine v. Tracy, No. Ken-09-357 (Maine March 25, 2010) (Subscription Required)

California Court Denies Sanctions Against Counsel Who Refused to Interpret Mediator's Communications to Their Clients

A federal district court in California declined to sanction plaintiffs' counsel for refusing to interpret so a mediator could present settlement offers and explanations directly to Spanish-speaking plaintiffs during a mediation which did not settle. The court rejected defendant's argument that plaintiffs' counsel did not mediate in good faith, noting that the mediation was not court ordered and there was no indication that direct communication would have resulted in settlement. The court suggested that if the mediator or the defendant felt that direct communication with plaintiffs was critical they should have ensured that an interpreter would be present during the mediation.
EEOC v. ABM Industries, Inc. , No. 1:07-cv-01428 (E.D. Cal. , March 3, 2010) (Subscription Required)

Massachusetts Appellate Court Enforces “Agreement in Principle” Signed at Mediation

Summary judgment was upheld by the Massachusetts appellate court enforcing an “agreement in principle” which was signed at the end of a lengthy mediation process, even though the parties were later unable to agree on the more detailed settlement agreement intended. The court explained that an intention to draft a more complete agreement did not mean that the agreement in principle was unenforceable, since it was complete, sufficiently definite and the parties intended to be bound when it was signed. The court bolstered its conclusions by noting the course of the mediation effort over thirteen months, the intensity and duration of the final mediation session involving senior party representatives, and the involvement of a recognized expert mediator.
Targus Group International v. Sherman, No. 08-P-113 (Mass. App. March 5, 2010)

Massachusetts Court Enforces Oral Mediation Agreement

The federal district court in Massachusetts enforced an oral agreement reached in mediation against an age discrimination claimant who changed her mind the morning after the mediation. The claimant refused to sign a written settlement agreement prepared by defendant which contained a seven day period for revoking consent (since it was an age discrimination case). The court noted that even though complainant could have backed out if she had signed the agreement, she could not back out of the oral agreement since no mention had been made about rescission. The court didn't believe any more time was needed to consider the settlement terms beyond the duration of the mediation. The opinion did not discuss mediation confidentiality. The court did note that it was appropriate for the mediator to evaluate the case.
Eswarappa v. Shed Inc. /Kid's Club, No. 06-11169 (D. Mass. February 18, 2010)

Lack of Mediation Settlement in Michigan Does Not Provide Basis for Imposing Attorneys' Fees

After an unsuccessful mediation conducted as required by a living trust agreement, the probate court held an evidentiary hearing and awarded post-mediation attorneys' fees to one side as sanctions for the other side failing to settle in mediation. The Michigan appellate court reversed because there was no court rule, contractual or statutory basis for attorneys' fees following mediation.
In re Hills Revocable Living Trust, No. 287285 (Mich. App. March 9, 2010) (Subscription Required)

Mediation Set to Address Access to SeaWorld Death Video

A Florida judge has ordered all interested parties to participate in mediation after granting a temporary injunction blocking release of video of a SeaWorld trainer's death by an orca. The mediation is expected to address privacy concerns along with the public's right to information. Mediation in similar cases has sometimes resulted in press inspection of imagery without public disclosure. SeaWorld video from an underwater camera and a camera in the park's Sky Tower are at issue.
CNN.com (April 6, 2010); CNN.com (March 26, 2010)

DOJ Mediation Eases Racial Tension in Florida Community

A routine traffic stop led to violence between police officers and a crowd in Lake Wales, Florida in November. After the local NAACP chapter began talks with the city, the U.S. Department of Justice began a mediation in December and reached agreement in March. DOJ used its new mediation program called City Site Problem Identifying and Resolving Issues Together (City SPIRIT). The Lake Wales agreement includes representation of African-American and other minorities in city government and budget decisions, as well as improving communications and cultural sensitivity through training programs.
News Chief.com (March 30, 2010)

Other Notable Cases and Proceedings

• Georgia appellate court affirms dismissal of litigation where plaintiff had not complied with mediation requirement in dealer contract. Houseboat Store, LLC v. Chris-Craft Corp. , No. A09A1815 (Ga. App. March 11, 2010) (Subscription Required)
• Plaintiff's failure to appear at trial because mediation not completed leads to dismissal of litigation, which is upheld on appeal. Maverick H. v. Givler, No. E2009-00253-COA-R3-CV (Tenn. App. February 24, 2010)
• The Federal Mediation and Conciliation Service assisted Major League Soccer and the Major League Soccer Players Union with their collective bargaining agreement, reaching a new five-year agreement five days before the season opener. The sides met all day and night for two straight days to close the deal and avert a threatened strike. Washington Post.com (March 20, 2010); ESPN.go.com (March 6, 2010)
• Mediation held at City Hall in Jakarta resulting in an agreement over Mbah Priok's grave, which will not be relocated, but the entrance gate and pavilion will be shifted to avoid disrupting the activities of ports and terminals. A commission will study a master plan and a further mediation session will be held to finalize a memorandum of understanding. Berita Jakarta.com (April 15, 2010); Berita Jakarta (April 16, 2010)
  
   

NEWS & INITIATIVES:

Adoption of Mediation Being Considered by Russian Parliament

Detailed proposed regulations to establish mediation as a dispute resolution procedure were introduced in the Russian Parliament in March. Mediation has not previously been a part of Russian law. The proposed regulations would rely on voluntary mediation between parties to a dispute and would provide for confidentiality. The regulations would also establish quality standards for mediation services and some integration of mediation with arbitration and litigation.
Mondaq.com (March 22, 2010) (Registration Required)

Italian Legislation Would Mandate Mediation Prior to Litigation

Legislation introduced in Italy would require mediation prior to litigation in civil and commercial disputes, including insurance and medical malpractice. Compulsory mediation is limited to four months and must be conducted by independent professional groups registered with the Italian Ministry of Justice. If mediation is not successful, either party may then file suit, but litigation costs may be awarded or withheld depending on whether the outcome of litigation differs from proposed settlement terms. The legislation, which would take effect in March 2011, is intended to provide cost savings and help streamline Italy's overburdened judicial system.
Mondaq.com (March 22, 2010) (Registration Required)

Other International Mediation Developments

• Jamaica willing to mediate dispute with U.S. over extradition of strongman to U.S. on drug and firearms charges. Jamaica Observer (March 14, 2010)
• Ireland could save up to € 200 million per year by using mediation rather than litigation in state legal matters, according to a study based on over 400 Freedom of Information requests. Irish Times (March 6, 2010)
• Elder mediation training expanding scope of services in Ireland. Irish Times (March 23, 2010)
• Pakistan's Karachi Centre for Dispute Resolution, with assistance of the World Bank's International Finance Corporation, sponsors Women Mediation Week for female litigants. Trading Markets (March 13, 2010)
• Non-governmental organization in Nigeria trains women in mediation and conflict transformation. AllAfrica.com (March 17, 2010)
• Minister of Justice of Rwanda urges Senate to establish local Committees of Mediators to expand mediation capacity and rebuild trust and harmony. All Africa.com (April 21, 2010)
• South Africa's new King III code for the first time requires corporations to consider alternative dispute resolution rather than just litigation. TimesLive.co.za (March 21, 2010)
• Lawyers in South Africa should recommend mediation to clients or they may have their fees limited. IAfrica.com (March 1, 2010)
• Hong Kong's Secretary for Justice emphasizes greater use of mediation as key feature of Civil Justice Reform. Stock Markets Review (April 17, 2010)
• Hong Kong Practice Direction 3.3 provides for voluntary mediation in shareholder and related disputes, in addition to PD 31. HerbertSmith.com (January 7, 2010)
• Singapore seeks to resolve ethnic and religious differences through mediation. ChannelNewsAsia.com (March 5, 2010)

Greensboro Launches Landlord-Tenant Mediation Program

The city of Greensboro, North Carolina is working with the Conflict Studies and Dispute Resolution Program of the University of North Carolina at Greensboro to launch a program to resolve disputes between landlords and tenants. The Landlord-Tenant Dispute Program has been developed with input from stakeholders. The program is intended to reduce litigation, but depends on both sides voluntarily agreeing to participate.
Digtriad.com (March 30, 2010); Greensboro Press Release

Washington State Moving to Extend Agricultural Mediation Program

Legislation is moving forward in Washington state to extend to 2015 the agricultural mediation program which began in 1987. The bill authorizes $7.5 million per year, but less than $4.5 million has been appropriated for the current fiscal year. Washington is one of 32 states which participates in the Certified State Agricultural Mediation Program, administered by the Farm Service Agency of the U.S. Department of Agriculture, which helps farmers resolve disputes with lenders and others in order to avoid litigation, appeals, bankruptcy and foreclosure, and may occasionally deal with rural housing, development and even civil rights.
AgWeek.com (March 8, 2010); USDA Agricultural Mediation Program

Update on Home Foreclosure Mediation

• Maryland has passed legislation requiring mediation between homeowners facing foreclosure and mortgage lenders, at the option of borrowers. The legislation builds on existing reforms by requiring lenders to work directly with homeowners on loan modifications. The program takes effect on July 1, 2010 and details are still being worked out. Washington Post (April 15, 2010); Loan Safe.org (March 17, 2010)
• Outagamie County, Wisconsin judges have begun a program to encourage mediation prior to foreclosure. Foreclosure summonses must include information on the program. Lenders who do not cooperate risk not having their foreclosures approved. Outagamie is the third county in the state to use the program, which was developed by Marquette University Law School, and three other counties may begin programs. PostCrescent.com(February 25, 2010)
• The Vermont House passed legislation requiring mediation between lenders and homeowners prior to home foreclosure. One challenge is a shortage of trained mediators, but the Vermont Bar Association is setting up a training program for lawyers interested in providing mediation. Business Week (March 19, 2010)
• Three banks have filed suit to block the foreclosure-mediation ordinance of Providence, Rhode Island, arguing that the city is preempted by state law on foreclosure. The ordinance was the first of its kind in the state when adopted in September; a similar foreclosure-mediation ordinance has since been enacted in Cranston. Projo.com (April 10, 2010)
• Florida's new statewide mediation program to resolve foreclosure cases more quickly has moved slowly in the months since the Florida Supreme Court's order. The program is running in only four of the state's 20 judicial circuits – and three of the four already had foreclosure mediation programs. Logistical issues are a challenge, including the requirement that each program be run by a non-profit organization which is politically and professionally neutral and has resources sufficient for a high case volume. Bradenton.com (March 31, 2010)

The Nevada Supreme Court is considering a third set of rule changes since its Foreclosure Mediation Program went into effect last July. Among other things, the proposed changes would extend mediation timelines from 90 to 135 days, allow price opinion letters in place of appraisals, permit postponement of mediations upon agreement, and generally limit mediators to no more than three mediations a day. LasVegasSun.com (March 4, 2010)

JANUARY 2010

CASES & RESOLUTIONS:

California Court Shields Mediation from Scrutiny with Absolute Quasi-Judicial Immunity

A California appellate court concluded that a mediator was shielded by absolute quasi-judicial immunity regardless of whether he was mediating or arbitrating in Phillips v. JAMS (Cal. App. 2d Dist.).  The mediator had agreed in a previous mediation settlement to make a binding decision for the parties if future disputes arose.  The mediator tried to mediate a subsequent dispute, in the midst of which he felt he was being abused by aggressive counsel and announced he could no longer be impartial and was not going to make a binding decision, even if the parties could not reach a mediated resolution.  Litigation followed, but the appellate court affirmed summary judgment dismissing claims against the mediator and his sponsoring organization, concluding that litigation is not allowable against those providing dispute resolution services which are connected to the judicial process.  The court held that “[a]ll functions integral to the dispute resolution process are shielded by absolute immunity.”
Phillips v. JAMS (Cal. App. 2d Dist. January 28, 2010)

New York Court Sanctions Party for Rigidity in Mediation

A bankruptcy court in New York imposed penalties for mediating in bad faith on a party the court found to be rigid and obstructionist during court-ordered mediation.  The court recognized that of course parties cannot be forced to settle and may take a “no pay” position.  But mere attendance without active participation is not sufficient for good faith.  Sending representatives who would not consider the risks involved and who could only repeat a mantra that they would pay nothing renders mediation futile and forms the basis for penalties for obstruction of the mediation.  Party representatives must have full authority to settle; having to telephone for additional authority is not sufficient.  The offending party did ultimately make a settlement offer, but only after the threat of sanctions, and the offer was considered to be insincere by the mediator and other party.  Under the mediation rules of the court, mediators are required to report incidents of bad faith mediation, and are permitted to provide information under the court’s confidentiality provisions. 
In re A. T. Reynolds & Sons, Inc., No. 08-37739 (U.S. Bankr. S.D.N.Y. February 5, 2010)

Federal Judge Orders Early Mediation in Airliner Crash

The federal judge managing the roughly three dozen lawsuits filed after the February 2009 crash of Continental Connection Flight 3407 has ordered mediation to begin by mid-June and assigned the cases to four local mediators.  Both sides say they welcome mediation but wonder whether it is being ordered too soon, as depositions are not expected to begin until summer.  Plaintiffs’ lawyers strongly assert that this is a punitive damages case, which impacts resolution.  However, the lead plaintiffs’ attorney notes that he tried the last major aviation liability case, which was the 1992 trial of the Lockerbie crash, and that every case since then has settled.
Buffalo News.com (January 7, 2010)

Mediation Agreement Aims to Calm Racial Tensions in City

Two years after a gunman killed the mayor, other city officials and police officers during a council meeting in suburban St. Louis, the U.S. Justice Department mediated an agreement that is intended to improve relations between the black and white communities and begin to heal racial divisions.  The agreement, which contains tangible programs and steps by the city, is seen as hopeful progress by many, while others are concerned by the city’s failure to fully admit that a racial problem exists.  A follow up meeting has been scheduled to try to further reduce tensions.
STL Today.com (January 22, 2010); Fox 2 Now.com (February 9, 2010)

Other Notable Cases and Proceedings

• Court-ordered mediation between the telephone company FairPoint Communications and the Maine Public Utilities Commission was delayed by the inability of the Maine PUC staffer to bind the agency despite the court’s requirement that representatives must have complete authority.  The agency is seeking to modify the court order to permit a public hearing before any tentative settlement is voted on by the PUC commissioners.  WSJ.com (January 22, 2010)
• Although Ohio’s federal court-conducted mediation program is voluntary, the court requires each participating party to have a representative attend in person who has authority to agree to the last offer or demand made.  Jack v. Allied Systems, Case No. 3:05-cv-125 (U.S. S.D. Ohio January 7, 2010)
• A federal magistrate imposed $6,000 in costs and expenses on companies which failed to send representatives with adequate settlement authority to mediation in a dispute over 55 trees that a pipeline company cut down to keep roots from impacting the underground pipe.  The companies have backed out of mediation and intend to litigate the $300,000 claims against them by the city and local school district.  PDDnet.com (January 12, 2010); Helenair.com (January 13, 2010)
• Even though counsel moved to withdraw prior to mediation, counsel was jointly liable with the client who failed to appear at mediation for the time of both the mediator and opposing counsel.  George W. Park Seed Co. v. DHL Express, Civil Action No. 8:08-1993-WMC (U.S. D.S.C. January 5, 2010)
• Mediation was improperly ordered by court where the statutory requirement mandates a hearing within a short time period on the merits of a personal protection order.  Moreover, court-imposed mediation may not be appropriate when domestic violence or stalking is alleged.  Baker v Holloway, No. 08-007173-PH (Mich. App. January 26, 2010)
• Appeal dismissed due to parties’ failure to engage in appellate mediation.  Alba v. Passage Realty, Inc., No. 14-09-00304-CV (Tex. App. January 7, 2010)
• Mediator sued party for cancellation fee for not proceeding with mediation, but appellate court affirmed summary judgment dismissing case because party had not agreed to cancellation term which was unilaterally sent out by mediator after parties agreed to mediate.  Levin Law Group v. Sigmon, No. 14-08-01165-CV (Tx. App. January 21, 2010)
• Mediation settlements are especially unsuited for rescission based on unilateral mistake.  Rachid v. Perez, No. 08-1210 (Fla. App. January 20, 2010)
• After 17 years of litigation, six months of mediation resulted in a tentative agreement by the state of Utah to pay $33 million to a class of 8,000 Navajos for mismanagement of an oil royalty trust fund created in 1933.  Deseret News.com (January 6, 2010)
• Failure to specify the width of road paving in mediation settlement leads to breakdown and litigation over “normal city standards.”  James v. City of Russellville, No. 2080881 (Ala. App. January 8, 2010)
• New York town objects to mediators selected to resolve environmental claims against General Motors bankruptcy estate due to their lack of subject matter expertise in light of the complexities of environmental science.  WSJ.com (February 8, 2010)
• Los Angeles City councilwoman planned to mediate dispute between the Port of Los Angeles and company seeking to open $50 million shipyard, but recused herself after revelations of campaign contributions from company.  Daily Breeze.com (February 10, 2010)
• Four years after talks to settle lawsuit for $2 million broke down, Tuomey Healthcare System and the federal government have agreed to mediate.  Tuomey alone has spent over $4 million on legal fees in the case.  The Item.com (January 6, 2010)
  
   

NEWS & INITIATIVES: 

Payment of Settlement Funds to Charities Gaining in Both Popularity and Scrutiny

Settlements in class action lawsuits are requiring payments to charities at triple the rate in the past, according to a recent study, which is raising concerns when the charities are unrelated to the litigation or have some connection to the defendants or the judge approving the settlement.  Judicial review is pending of a proposed $9.5 million settlement by Facebook of litigation over sharing personal information.  Objections have been raised in the Facebook hearing to the entire settlement amount funding a foundation to promote privacy rights apart from the 30% going to plaintiffs’ counsel.  In part, concerns are related to Facebook having a role in creating the foundation’s bylaws and input on a board member.  However, the trend of settlements going to charity may continue as legislation was introduced in Ohio earlier this year encouraging judges to use these types of arrangements.
WSJ.com (March 2, 2010)

Federal Office Mediates Disputes Between FOIA Requesters and Federal Agencies

Freedom of Information Act disputes are now being mediated by the Office of Government Information Services (OGIS), which was created within the National Archives and Records Administration and officially began work in September 2009.  In its first months, OGIS has begun work on about 40 disputes.  OGIS, which will have a staff of six, is working with a contractor to add online dispute resolution and is seeking to provide more transparency into matters it is mediating.  In addition to directly resolving disputes, OGIS is tasked with providing suggestions for FOIA improvements.  OGIS also plans to provide mediation training to FOIA officers in federal agencies to reduce the number of disputes that arise from the roughly 600,000 FOIA requests made each year.
Federal Computer Week (January 14, 2010); OGIS Website

Concerns Raised over Determining “Bad Faith” in Texas Balance Billing Mediations 

Mediators are concerned over provisions in new Texas legislation which would require them to report parties who act in “bad faith” in mediations involving balance billing.  The new legislation allows insured patients to mediate whenever they would have to pay over $1,000 for services of out-of-network doctors received at in-network hospitals.  In an effort to compel serious mediation efforts, the law includes a requirement for reporting bad faith conduct, without providing standards.  The Texas Department of Insurance is drafting rules to implement the statute, which is to take effect in September 2010.  Mediators hope to get the bad faith reporting requirement adjusted in the regulations in order to maintain neutrality.
Dallas Morning News (January 26, 2010)

Mediation Available for Online Gaming Disputes

An inspection and certification agency for online gaming operators, eCOGRA, certifies that online casinos are safe and fair sites, in part by mediating disputes and ensuring that players’ issues are adequately addressed by the online casinos.   The agency received over 800 mediation requests in 2009, and reported that valid mediation requests were up 14% over 2008.
Casino Advisor (January 15, 2010)

Hong Kong’s Practice Directive on Mediation Takes Effect

Hong Kong’s Practice Directive 31 (PD31) on mediation went into effect on January 1, as scheduled in the Civil Justice Reform adopted in early 2009.  PD31 requires counsel to explain mediation to parties and file with the court in each litigation a statement that the party is willing to mediate or why it is not.  Further, PD31 sets up a process by which either party can propose mediation and receive a response from the other party within fourteen days.  If mediation is unreasonably refused, the court potentially can impose litigation costs on the unreasonable party.
Clifford Chance (January 7, 2010)

Other International Mediation Developments

• Association of Arrears Mediators founded in the U.K. by five leading mortgage and loan arrears mediation companies.  My Introducer.com (January 21, 2010)
• Armenia’s Financial System Mediator reports success in its first year of mediating between financial organizations and customers.  Armenia Now (January 25, 2010)
• South Africa’s Commission for Conciliation Mediation and Arbitration (CCMA) caseload is increasing steadily to over 140,000 cases in fiscal year 2008-09.  Busrep.co.za (February 8, 2010)
• India’s Bangalore Mediation Centre has a settlement rate in excess of 60% and plans to expand its mediation model of using experienced lawyers rather than judges as mediators.  Express Buzz.com (January 25, 2010); Hindu (January 28, 2010) (Subscription Required)
• China has resolved hundreds of cross-Straits lawsuits involving Taiwan businesses and residents since opening the first court for such cases in March 2009, with 80% of cases settled through mediation.  CRI English.com (February 13, 2010)
• Significant movement toward mediation in New Zealand seen in both civil and criminal justice systems, such as dispute resolution provisions in the Financial Service Providers Act which take effect later this year.  Scoop (January 14, 2010)
• World Bank’s IFC helps establish mediation in the Solomon Islands through workshop for court and consulting with other groups.  Finchannel.com (January 23, 2010)

Update on Home Foreclosure Mediation

• Members of Congress from Ohio, California and Florida in February introduced the Foreclosure Mandatory Mediation Act, H.R. 4635, as companion legislation to S. 2912.  The federal legislation would require mandatory mediation by lenders of loans with federal guarantees or federal insurance.  The required one-time mediation would involve both the mortgagor and a housing counseling agency and would be paid for by the lender.  Federal Information & News Dispatch (March 3, 2010) (Subscription Required)
• While the Florida Supreme Court ordered each of the 20 circuit courts in the state to establish its own foreclosure mediation process, only three circuits have complied with the order to date.  Florida was hit with an additional 296,000 foreclosure filings in the last quarter of 2009, pushing the number of pending foreclosures to 456,000.  Jacksonville.com (February 13, 2010)
• Nevada judges have stated publicly that they will not impose loan modifications even if lenders do not negotiate in good faith in mediations.  RGJ.com (January 24, 2010)
• New Hampshire has begun a Foreclosure Mediation Program which is voluntary for homeowners and free to both borrowers and lenders.  The program is being funded by grants from several sources.  Nashua Telegraph (January 18, 2010); Foreclosure Mediation Program
• Lenders attempting to foreclose on primary residences on the Big Island of Hawaii must now notify borrowers of their right to mediation by serving a mediation notice along with other documents.  Star Bulletin (January 21, 2010); Judiciary Press Release (January 20, 2010)
• Providence, Rhode Island has mandated a foreclosure mediation process, and the City Council is seeking to add a $2,000 fine for banks or lenders who fail to attempt to renegotiate mortgages with homeowners before filing a deed of foreclosure.  Projo.com (January 25, 2010)
• Maryland’s governor is pushing for the emergency legislation he introduced to institute a mandatory foreclosure mediation program in the state, and would like lenders to support the plan.  Lenders remain concerned about anything that would slow down the foreclosure process.  Maryland looked to South Carolina’s foreclosure prevention efforts, which require a showing that borrowers are not eligible for modification under the federal Home Affordable Modification Program prior to foreclosure.  Governor O’Malley Press Release (February 16, 2010); Daily Record (January 18, 2010)

 
Lawrence Huerta

HUERTA MEDIATION
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Mediation Quote:

“Empathy requires good listening skills and the ability to demonstrate an understanding of the other side’s needs, interests, and perspectives, without necessarily agreeing.  Assertiveness requires the ability to state clearly and confidently the interests and perspectives of one’s own side.  A good negotiator has to do a lot of both, no matter how strong the emotions or how high the stakes.  This can be surprisingly difficult.”

Robert Mnookin, Bargaining with the Devil: When to Negotiate, When to Fight (Simon & Schuster 2010) at 134

Other Cases & Resolutions:

Lehman Brothers bankruptcy judge is requiring creditors to participate in mediation of disputed claims.  The mediations will take place in New York, but parties may be able to participate by telephone.  Mediation of claims picked for mediation must begin in 60 days and be completed 120 days after they begin.  BusinessWeek.com (April 22, 2010)

Fort Wayne and Indiana Michigan Power officials are continuing with mediation even though their 35-year lease agreement has expired and four full days of mediation have not yet resolved the dispute.  In 1975 the city’s electric power grid was turned over to Indiana Michigan Power to serve the city’s customers and make payments to the city.  The dispute centers on what the city should get back since much of the equipment has been replaced.  Journal Gazette (February 28, 2010)

On the eve of mediation last year, Cantor Fitzgerald increased its damages claims from $100 million to well over $1 billion for lost profits from the September 11 World Trade Center attacks in which two-thirds of its staff died.  Defendant American Airlines is seeking to have the federal court reject the increase as a disguised wrongful death claim.  The Australian (February 28, 2010)

Mutual claims of false advertising and deception over product performance were settled in mediation by Star Brite Distributing and ValvTect Petroleum, ending federal litigation in Florida.  TradeOnlyToday.com (March 15, 2010)

The Catholic Diocese of Wilmington and its creditors committee of alleged victims of priest sexual abuse have asked for a mediator in the Diocese’ bankruptcy.  The bankruptcy judge directed the parties to attempt to agree on a mediator and a mediation process.  News ok.com (April 19, 2010)

Mediation is scheduled between an altar server, 12 parishioners of a Catholic church and the bishop, after the altar server complained to the Ontario Human Rights Tribunal that he was asked to quit due to his sexual orientation.  Northumberland Today (April 8, 2010); Standard-Freeholder.com (April 10, 2010)

The Erie County Attorney has agreed to mediate with the U.S. Department of Justice over suicide prevention issues at jails in the New York county, after failing to get a federal lawsuit against the county dismissed.  Public Broadcasting.net (April 25, 2010)

County officials and residents have agreed to extend mediation of a years long controversy over whether to expand a jail in downtown Brunswick, Georgia.  GPB.org (April 2, 2010)

A school district reached settlement in mediation and will pay $140,000 to two parents who sued after their third graders were required to sing “In God We Still Trust.”  The school also promised not to sing the song in the future.  WOKV.com (March 23, 2010)

Resident’s $10 million lawsuit against Clarke County School Board for being told to stop speaking at a public meeting was sent to mediation.  NVdaily.com (April 6, 2010)

The ethics trial of a Nashville judge has been postponed to first try mediation.  NewsChannel5.com (March 8, 2010)

The court dismissed a third amended breach of contract claim among former law partners over class action fees, but ordered mediation in similar pending cases and encouraged mediation in another.  Madison Record (March 9, 2010)

A federal magistrate in Guam will hold a mediation in chambers over inaccessible sidewalks in an Americans with Disabilities Act case.  Kuam.com (April 5, 2010)

A dispute over frozen embryos between the donor couple and the recipient couple is going to mediation.  St. Louis Globe Democrat (April 14, 2010)
Mediation over birth defects caused by negligent clean up of a steel works is under way between Northamptonshire and 16 families.  BBC News (April 13, 2010)

England’s Premier Rugby plans to mediate a dispute between Saracens and Northampton, which both claim they signed star Soane Tonga’uiha.  Guardian.co.uk (April 1, 2010)

Coalcorp Mining settled its dispute with AES Gener S.A. in mediation, resulting in the termination of litigation and arbitration and payment of $5.5 million among other terms.  RTTNews.com (March 16, 2010)

The sinking of the ex-HMAS Adelaide in southeastern Australia, which police predicted would bring 50,000 spectators, has been postponed indefinitely, and pro- and anti-scuttling parties have agreed to mediate.  The delay was due to allegations that PCBs and other toxic substances were leaking from the former navy frigate.  Many have waited ten years for the sinking, which is expected to become a popular dive site.  Express-Advocate (March 25, 2010)