April 2015
 

COURT ADR NEWS

In California, Mediation Confidentiality Bars Malpractice Suit

In California, the 2nd District Court of Appeal held that the state’s mediation confidentiality statutes prohibited a party from bringing evidence of his own representative’s malpractice because the alleged bad advice was given during a mediation session. In Amis v. Greenberg Traurig LLP et al., the plaintiff accepted a mediation agreement in which he and other shareholders assumed a $2.4 million corporate debt. The plaintiff said his counsel had not explained that the shareholders would likely not have had personal liability without the mediated agreement. The 2nd District affirmed a lower court judgment that because of confidentiality no evidence from the session was admissible. The court expressed sympathy with Amis’s assertion that mediation confidentiality was not intended to protect attorneys from malpractice claims, but said that this “seemingly unintended consequence” must be corrected by the Legislature, not the courts.

Nevada Bankruptcy Court Adopts Mortgage Modification Mediation Program

The United States Bankruptcy Court for the District of Nevada has announced uniform procedures for its Mortgage Modification Mediation Program. The program applies to all real estate involved in Las Vegas Chapter 13 bankruptcy filings, including both commercial and residential. The goal of the program is to facilitate communication between debtors and lenders, in the hopes of encouraging them to finalize an agreement under court supervision. 

March Named “Mediation Month” in Virginia

The governor of Virginia declared March to be “Mediation Month” in honor of the work done by courts and other conflict resolution centers. Mediators from the courts and state institutions handled 15,000 disputes last year, with thousands more conducted by conflict resolution centers and law firms. The Virginia Association for Community Conflict Resolution and the Virginia Mediation Network hosted several educational events, promoted steps to help citizens “Talk It Out” to resolve disputes and hosted several free seminars during the month.
 

THIS MONTH AT RSI

Inquiring Minds Ask the Court ADR Resource Center

This month, our Resource Center Director Mary Novak talks about the questions RSI receives

On CourtADR.org, thousands of resources are available to anyone who would like to learn more about dispute resolution in the courts. Occasionally, however, someone needs more information on a particular subject. In that case, we invite our visitors to send us their inquiries on specific questions. Over the years, we’ve been impressed by the breadth of questions that we’ve received; we never know the next question that may be around the corner.
 
Inquiries have led us to explore many interesting subjects. We have looked at everything from the types of mandatory civil mediation programs that exist across the country, to what the research has to say on ADR efficiency in the courts. Our inquiries range from questions we know on the spot, to complex requests that may take some effort to answer.
 
While inquiries are only a small part of the work that we do through our Resource Center, we are glad to offer help to our visitors. By using our services, we know the information we provide helps many of our visitors to further the field of court ADR. 
 

RESEARCH REVIEW

Research on Lawyers in Mediation: Are They a Help or a Hindrance?

by Jennifer Shack, Director of Research 

Over the past few years, I’ve summarized several studies that looked at the effect of lawyer presence on mediation outcomes and party experience of the process. I’ve brought them together here to elucidate similarities and differences in their findings.
 
In 2010, Roselle Wissler pulled together findings from previous studies. Her analysis revealed that lawyers provided some moderate advantages. If they prepared their parties in advance, the parties were more likely to settle and to have positive assessments of the mediation. (However, not all attorneys prepare their clients.) She also found some evidence that parties who were represented had better outcomes.  She found little evidence of attorney representation having a negative effect on outcomes.
 
However, Wissler did find that attorney presence overall had a possible negative effect on the probability of settlement, although this could be an artifact of the cases themselves. Two other studies came to different conclusions. Jean Poitras’ study of workplace disputes in Quebec concluded that lawyer presence had no effect on settlement, while Oren Gazal-Ayal and Ronen Perry found a strong relationship between representation and settlement in their study of small claims mediation in Israel. In that study, those cases in which both parties were represented had the greatest likelihood of settling. Cases in which neither party had an attorney were least likely to settle.
 
What about participant experience? With the exception of the greater satisfaction of parties who were prepared by their attorneys (noted above), Wissler found some evidence that attorney presence led to the parties participating less and being less satisfied with the amount they participated. This is the conclusion that Tamara Relis came to in her study of medical malpractice mediation.  Relis looked at what happened in the mediation process when attorneys were present. She found that the attorneys tended to take control and focus more narrowly on legal issues. Through interviews with both parties and lawyers in 64 cases, she found that lawyers and parties inhabit “parallel worlds,” with the lawyers’ needs and perspectives of the dispute being very different from those of the parties.
 
These conflicting findings point to the need for more research on how attorneys affect mediation outcomes and the experience of the parties. Because there has been so little research on this topic, differences in the case type, geography and study methodology of these studies magnify the differences in their findings. 

RSI Publications at Your Fingertips
Research and writing has always been a central activity at RSI. Much of our work has been collected on our organization’s web page, AboutRSI.org. The News & Publications page has an index of dozens of studies, articles, program evaluations and even books written or co-written by our staff.

RSI Board Of Directors

Hon. Morton Denlow (ret.), President
Terry Moritz, Vice President
Prof. James J. Alfini
Marc Becker
Rajive Chadha
Hon. Allen S. Goldberg (ret.)
Mitchell Marinello
Raven Moore
Hon. Stephen Pacey (ret.)
Hon. Judith Rice
Brian Roche
Hon. Karen G. Shields (ret.)
Hon. James Sullivan (ret.)

RSI Staff

Susan M. Yates, Executive Director 
Kimberly Ackmann
Bridget Crawford

Shawn Davis
Olga Kordonskaya
Kevin Malone
Mary Novak, Editor
Jennifer Shack

SUPPORT RSI


RSI is a non-profit organization that strengthens justice by enhancing court ADR systems through expertise in program development, research and resources. 

NEWS & UPDATES


Northwestern Students Volunteer for RSI

Two LLM students from Northwestern University Law School spent much of their Spring Break week volunteering for RSI. Ying Li and Xiaoling Liu both spent many hours researching topics of future interest to RSI. We thank you both very much for all of your hard work!

FROM OUR BLOG


Does It Matter If Your Home Loan Is Owned by Fannie Mae or Freddie Mac? RSI Is Set to Find Out

Jennifer Shack discusses the foreclosure mediation program evaluation she is conducting.

Family Law Arbitration Act

Susan Yates explains a newly proposed structure for arbitration of family matters being drafted by the Uniform Law Commission.

Chicago-Area Settlement Week

Announcing a special event to be held throughout the Chicago area from June 1-5.

Connecticut Evaluates Mortgage Foreclosure Mediation Program

Shawn Davis reports on a Connecticut study of six years of foreclosure mediation data.

HOW CAN WE HELP?


How Can We Help You? RSI offers a clearinghouse of information on CourtADR.org and also responds to requests for information. Do you have a question about court ADR?
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RSI thanks JAMS and the JAMS Foundation for their support of this publication.

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