A Requirement Without Consequence? Federal Circuit Mediator Conflict Disclosure Case

The Federal Circuit recently handed down its decision in the CEATS v. Continental case.  If I were teaching Mediation this year, I’d spend some real time on it.

Quick summary (oversimplifying for purposes of clarity here): Mediator appointed to patent case.  Case didn’t wind up settling, and it proceeded to trial.  After jury verdict, losing party discovered that the mediator had a prior relationship with the prevailing party.  Losing party seeks FRCP 60(b) relief.  Court says, “Yes, mediator should have disclosed the relationship, but no, relief from judgment is not available.”

Lots in there worthy of time and consideration.  How did the court come to cite and apply things like the Model Standards of Conduct to this mediator?  What, if any, consequences could there be for failure to disclose?  (Private liability, as I’ve written previously, here, unlikely to be successful.)  If the presence of a subsequent jury trial stands as evidence of a cure of any alleged prior mediator misconduct, what incentives does that create within mediation?  Does the conflict rule applied to judges and arbitrators make sense for mediators?  Etc.

 

MM

Deliberations, Interrupted

Last week, the Washington Supreme Court reversed a conviction in State v Lamar on the grounds that jury deliberations must be “full and complete.”  The StoelRives blog noticeofappeal.org summarizes the case this way:

In State v. Lamar, the trial court reconstituted the jury with an alternate midway through deliberations after one of the original jurors became ill.  The trial court did not instruct the reconstituted jury to begin deliberations on all aspects of the case anew but, rather, directed the 11 original jurors to bring the alternate “up to speed” and resume deliberations from that point. Even though Lamar did not object to this instruction at trial and all members of the reconstituted jury reported that they voted to convict when polled, the Supreme Court reversed, holding that the failure to issue a new deliberation instruction was a manifest error affecting a constitutional right and that prejudice was presumed because inherent in the right to a unanimous jury verdict is the right to have a verdict based on full and complete deliberation.  The trial court’s instruction, which the jury was presumed to follow, directed otherwise.  Accordingly, there was no assurance that the verdict was based on required deliberation.

My interest in the case is not so much from the jury deliberation perspective or the constitutional rights presumed to attach to the role of juries (although both are interesting).  Instead, the case makes me wonder what we know (and mostly don’t know) about the impacts of adding new parties to negotiations.

MM

 

Sunshine in Litigation Act reintroduced

From this morning’s National Law Journal: Federal lawmakers have renewed legislation that would require judges to consider the public’s interest before agreeing to seal court records about products liability lawsuits with companies.  Sen. Richard Blumenthal, D-Conn., and Sen. Lindsey Graham, R-S.C., introduced the Sunshine in Litigation Act of 2014 in the Senate this month. Rep. Jerrold Nadler, D-N.Y., introduced a similar bill in the House in April.

The “sunshine” imagery is, of course, complicated.  Exactly nobody involved in litigation would describe it as “sunshiny” in the “great to wake up and realize I’m basking in” sense.  And my pre-coffee read of the article had me misunderstanding things in this way.  It is, instead, about the circumstances under which courts would be permitted to maintain certain records and settlements under seal.

On quick skim, the presumption against protective orders and the public health/safety information sharing pieces look familiar.  I see in the sponsors’ public statement that they also seek to

Increasing the efficiency of courts. Where the legislation requires disclosure, the information learned will be shared among those with similar cases, increasing court efficiency by avoiding duplication of discovery battles in every new case.

I don’t know what that looks like, and so I’ll be interested to watch that.

MM

 

Congratulations to Professor David White (Seton Hall)

David White (Seton Hall) was recently named Clinical Professor of the Year at Seton Hall (announcement here) and also accepted a civilian appointment to NYPD Police Commissioner Bill Bratton’s “Reengineering 2014” team.  The group will critically examine many facets of the NYPD’s day-to-day operations and offer recommendations for process re-design.

Bravo David!

MM

$5.15B Environmental Settlement in Anadarko / Kerr-McGee

For those law school ADR Evangelists looking for opportunities to woo colleagues from other doctrinal disciplines, the Anadarko / Kerr-McGee settlement yesterday should have you scrambling to talk with your faculty colleagues in Environmental Law and in Bankruptcy.

My short (and admittedly potentially still not as well-informed as it should be) version is this:

Kerr-McGee, an Energy & Chemical company, had among other things in its portfolio, considerable environmental damage associated with its nuclear fuel, wood creosote, and rocket fuel.  At some point, Kerr-McGee spun off a company called Tronox, which incurred many of those environmental liabilities.  Not terribly long after that, Anadarko Petroleum bought Kerr-McGee.  Tronox fell into bankruptcy.

A trust representing the U.S., about a dozen states, and some tribes, sued Andarko and Kerr-McGee, and they argued that Andarko and Kerr-McGee should assume the responsibility for the Tronox portfolio of environmental liabilities.  The US Attorney involved called it a “corporate shell game” aimed at avoiding liability.  And that argument won the day.

The settlement is larger than the BP Settlement (although without the publicity). It includes $4.4B in various settlement trusts around the country.  Pretty DOJ graphic available here.

””

Anadarko stock prices “soared” on news of the $5.15B settlement, as there had been speculation that it could reach far higher.

The National Law Journal story is available here.  Reuters here. NYT here.

MM

National Law Journal on “Sue and Settle” Cases

Article posted this morning and available here.  First three paragraphs below. As an aside, the environmental attorney cited in the article is an Oregon Law alum.  The more important questions this article raises relate to the availability of attorney fees in a wide range of contexts in which fee-shifting is an important settlement dynamic.

MM

—-

 

When the Center for Biological Diversity sued the U.S. Forest Service in Colorado in 2012 for violating the Endangered Species Act, government lawyers didn’t put up a fight.
Rather than answering the complaint, U.S. Department of Justice lawyers promptly settled the case, involving the greenback cutthroat trout — Colorado’s state fish — and handed the center a victory. As part of the deal, the government agreed to pay the center’s attorney fees — $40,000 for work by two in-house lawyers that, at least on paper, consisted mainly of filing a notice of intent to sue, a complaint and motions for extensions of time.The award was justified because the case was so complicated, the Justice Department said. But the suit also gave the government what Timothy Ream, one of the lawyers for the center, termed “political cover” to ban all-terrain vehicles from trails that cross four miles of a creek that’s the only place in the world where the fish live.In some ways, the case looks like a classic example of “sue and settle.” In recent years, business groups and landowners have alleged that federal agencies are settling environmental suits on sweetheart terms as a means of back-door regulation, then paying attorney fees to help fund another round of suits.
Still, a closer look at this case and similar others shows that “sue and settle” cases are rarely as simple as they seem.  …

“Maryland Agrees to Mediation to Resolve College-Desegregation Ruling”

From this morning’s Chronicle of Higher Ed (here).

The state of Maryland and lawyers representing historically black colleges have agreed to mediation after a federal judge ruled this month that the state had failed to fully desegregate its public higher-education system. The ruling stemmed from a 2006 lawsuit filed by students and alumni of the state’s historically black universities.

That group accused the Maryland Higher Education Commission of allowing traditionally white institutions to duplicate the unique, high-demand programs that would have made the black colleges more competitive for students. A federal judge in Baltimore agreed, saying that the black colleges were more segregated now than they were decades ago.

MM

“The Pros and Cons of ADR Clauses”

Article by that title in this morning’s National Law Journal (here).  Of course, with that title, it could have been book-length.  But the article, written by two partners at Sidley Austin in L.A., really focuses only on arbitration.  The authors captured employer sentiment beautifully with the phrase, “You Had Me at Class Action Waiver.”  It’s a good read.

MM

“Music During Times of Conflict”

Next week, my alma mater (Marietta College in Ohio) is presenting a fall concert titled, “Music During Times of Conflict.”  Really interesting to think about conflict through lens of a music department, and even though I’ve long been a vocal proponent of an interdisciplinary / liberal arts approach to understanding conflict, I confess that I’d not thought about what a music department might bring to the conversation (other than through lenses like music therapy, etc.).  Fun to think about…

MM

ABA Journal on Mediation in India

Article in this month’s ABA Journal, available here.

As is so often the case, even a simple narrative here offers the juxtaposition of efficiency / courtclog issues, human rights, and cultural differences.  Less articulation of some of the other kinds of mediation features than one often sees.  But still, enough here that you could probably assign this brief article as an end-of-semester essay in many mediation courses and leave students with plenty to discuss.

MM

“Art of War” as Negotiation Reading ?

I’ve received at least a half dozen suggestions from different students over the years that I ought to consider using “The Art of War” as one of the readings in my Negotiation class.  I just got another such suggestion, from a student who took my class at least a decade ago, and he was writing to say that he’d just re-read Sun Tzu and it made him think of the Negotiation course at many points.  I have to confess that I’ve never made it all the way through Sun Tzu before, and I’m not sure that I’ve given a fair reading even to those parts of it I have read.  I don’t have an easy time articulating my hesitation, and I’m thinking perhaps I’m missing something great.  I wonder if any of you out there use excerpts as readings or would have other thoughts or guidance about this idea that keeps getting offered.

MM

CHE on O’Bannon Settlement Talks

From this morning’s online Chronicle of Higher Education.

Story here.

MM

 

O’Bannon Lawyers Signal Openness to Settlement Talks With NCAA
By Brad Wolverton

The plaintiffs’ lawyers in a federal antitrust lawsuit involving the rights of college athletes say they are open to settlement discussions with the National Collegiate Athletic Association, a potential sign of compromise in the closely watched case.

Lawyers for Ed O’Bannon, the former UCLA standout who is suing the NCAA over perceived injustices in its system, say they have sent signals to NCAA lawyers suggesting a willingness to resolve the case before trial. But in a statement to The Chronicle, Donald M. Remy, the NCAA’s top lawyer, said that the plaintiffs had “not reached out to the NCAA” about a possible settlement and any such assertion was “patently false.”

Mr. O’Bannon and a potential class of current and former players have argued that the NCAA, through its antiquated system of amateurism, illegally prevents athletes from earning their fair share of the money the NCAA brings in from commercial products, including video games and other merchandise. The plaintiffs are also laying claim to potentially hundreds of millions of dollars in television revenue. The NCAA has vigorously denied the claims, and last month vowed to fight the case to the Supreme Court, if necessary.

The judge in the case, which is being heard in the U.S. District Court for the Northern District of California, is considering whether to certify the plaintiffs as a class. A trial date has been set for next summer.

The lawsuit has sparked widespread debate about whether players should be paid. But Michael D. Hausfeld, the lead lawyer for the plaintiffs, said that the suit’s unstated function is to change the relationship between players, their colleges, and the NCAA.

To do that, he told The Chronicle, the association would not need to pay players explicitly.

“You don’t have to say, ‘I’m paying you,’” he said. “It’s not the NCAA paying; it’s the licensee giving a share of their revenue” to players.

‘A Union Is Not Necessary’
Legal experts say the two sides could resolve their biggest differences by focusing less on payments to players—which NCAA colleges have said they are unwilling to provide—and instead examining new ways of providing benefits to players. Such ideas could include improved health care, increased scholarship aid, and more opportunities for athletes to complete their education.

Those proposals would not undercut the NCAA’s amateur ideals, said Matt Mitten, a law professor and director of the National Sports Law Institute at Marquette University.

“If the plaintiffs were willing to consider something other than, ‘Hey, here’s a pool of money effectively used to compensate athletes for their playing services,’ arguably that’s consistent with furthering the educational aspect of intercollegiate athletics,” he said.

Mr. Hausfeld said his team would be open to any changes that would provide players with a more equitable role in big-time sports.

“We’ve cited what a nonrestrictive market would look like,” he said, but he would not describe specific examples of what players might be seeking. If the NCAA agreed to sit down, he said, the two sides could find out where they might have common ground. (His willingness to discuss a settlement, he added, was not indicative of any deviation from the plaintiffs’ “absolute resolve” to continue with the litigation, if necessary.)

For the plaintiffs, any settlement would probably need to provide increased rights to players, including more due-process protections involving alleged NCAA violations, fewer restrictions on transfers, and more negotiating power.

“A union is not necessary, but an association of students is,” Mr. Hausfeld said. “The NCAA claims to have student-athlete representation within the organization. … But how can you have a legitimate independent voice if you’re being controlled by the very association that supposedly represents you?”

In recent weeks, many leading athletics officials have suggested that colleges were open to considering new ways of supporting athletes, but they oppose unionization. Such efforts, they believe, would lead to attempts to treat athletes as employees.

“There’s a huge disparity between looking at the scholarship model and revisiting what student-athletes receive to the leap that the lawyers in this suit go to,” said one official, who asked not to be identified because of the sensitivity of the matter.

For its part, the NCAA has consistently defended its position on amateurism and shown no signs of backing down in the lawsuit. In an interview last month with USA Today, Mr. Remy, the NCAA lawyer, said the association was “not prepared to compromise on the case.”

Bloom’s Taxonomy of Educational Objectives

True confession time: I’ve been reading about teaching and learning theory for a good while.  Always at an amateur level, and never with the rigor the enterprise unarguably deserves.  I do not think I have a level of exposure to the pedagogical literature that is atypically inadequate compared with many in the legal academy.  But I’d never spent much time or thought on Bloom’s Taxonomy of Educational Objectives until just recently.  It’s fascinating.

For those in ADR, this is the equivalent of someone who teaches Negotiation coming along and saying, “I’ve just decided to spend a little time reading Thomas Schelling, and it’s interesting.”  Or Howard Raiffa.  Or Mary Parker Follett.  Or Lon Fuller.  (Or I suppose in another decade or two, Roger Fisher or Frank Sander or …).

Hence the confession.  But just on the off chance that I might not be the only person out there who has spent inadequate time in this arena…

Easy to digest information here, here, and here.

There’s no shortage of critique, updating, challenging, alternative frameworks, etc., just as one would expect of a framework that has been around for 60 years.  But then, the fact that it continues to be the focus of such responses (rather than simply being ignored) is probably indicative of something as well.

Happy teaching, all.

MM

New Book: Erica Ariel Fox, Winning From Within

I just received word that Erica Ariel Fox‘s new book, “Winning from Within” is now out.  (It’s possible that it’s been out for a while, and I somehow missed it.)  I’ve ordered a copy, but have not yet read it, so this is a book pre-review.  As many of you know, Erica worked for years at the Program on Negotiation, in various capacities, and through the Harvard Negotiation Project and the Harvard Negotiation Insight Project.  A colleague of many of us in the field, Erica has been working on “Beyond YES” projects in a number of different forms for many years.  I am eager to see this collection of her thoughts.  Website here: (http://www.winningfromwithin.com/the-book/).

MM

Boskey Winner Announced: Sarah Gonski (Harvard)

Press release from the ABA.  As always, thanks to everyone who helps to make this competition possible.  In particular, a thanks to Andrea Schneider, this year’s chair.

MM

—-

Sarah Gonski, a student at Harvard Law School, is the winner of the 2013 Boskey Dispute Resolution Essay Competition. Ms. Gonski’s essay entitled “Easing Gridlock in the United States Congress Through Mediation: Letting Our Cities and States Teach Us Lessons On Getting Along,” was deemed the winner from among the essays submitted to the competition.

The Boskey Essay Competition is a project of the ABA Section of Dispute Resolution’s Law Schools Committee, which honors the memory of James B. Boskey, humanitarian, Seton Hall University law professor, and mediator. Professor Boskey was known and beloved world-over for his publication of The Alternative Newsletter, a resource guide on ADR published quarterly. The competition is chaired by incoming chair Professor Andrea Kupfer Schneider, Director, Dispute Resolution Program Marquette University Law School.

We would like to thank all of the students who submitted essays to the 2013 Boskey Competition. It was a highly competitive year and all of the participating students should be commended for their work in the dispute resolution field. We would also like to thank all of the law professors and practitioners who volunteered as judges for this year’s competition.

The current and past winning essays are available on the ABA Section of Dispute Resolution web site, http://www.abanet.org/dispute/essaycomp.html.

Climate Change and Human Conflict

From Science Magazine, “Quantifying the Influence of Climate Change on Human Conflict.”  Hsiang, Bruke, and Miguel conducted a study of studies and conclude by finding a  “strong causal evidence linking climatic events to human conflict across a range of spatial and temporal scales and across all major regions of the world.”

I decided to read the study, available here: (https://dl.dropboxusercontent.com/u/3011470/Publications/Science-2013-Hsiang-science.1235367.pdf).  Much of it is intuitive and consistent with previous reports.  This makes good sense, of course, since it is a study of studies.

Of greatest interest to me, (beyond the mind-numbing but beautiful graphs the authors include), the authors survey a number of plausible mechanisms by which the link from climate change to conflict may occur.  They name factors familiar to those in political science who study conflict trends, including economic conditions, labor markets, decreased state capacity, increases in food prices, increased inequality of resources, climate-induced migration and urbanization.  They also name as possible contributors changes in “the logistics of human conflict” (citing road quality deterioration).  They suggest that “climate anomalies might result in conflict because they can make cognition and attribution more difficult or error-prone, or they may affect aggression through some physiological mechanism.  For instance, climatic events may alter individuals’ ability to reason and correctly interpret events.”

Just as virtually all social science papers conclude, “more research is needed,” so too does this one.  And even from the passage I quoted above, that need is plain.  I am convinced that climate change will exacerbate at least some forms of conflict, in at least some contexts.  At the same time, I do not yet think we know enough about the mechanisms by which climate effects may mask or amplify, simplify or broaden, localize or globalize future human conflicts.  And that means we are still far from understanding well enough what helpful interventions, systems tweaks, preventive measures, and the like might look like.

But without question, an important set of inquiries.

MM

After Shootings, Morgan State U. Will Train Students in Conflict Resolution

Article from this morning’s online Chronicle of Higher Education here.

MM

By Ann Schnoebelen

After two shootings on its campus last semester, Morgan State University is taking some of the same security measures increasingly common elsewhere: more officers, a tighter campus perimeter, town-hall meetings to discuss public safety. But the small, historically black college in Baltimore is also calling on its students to take responsibility for reducing violence.

Beginning with next fall’s freshman class, Morgan State plans to make training and classroom instruction in conflict resolution a mandatory part of students’ experience. Activities and lessons to help them better understand and deal with conflict will be added to all freshman programs, from a summer orientation through a semester-long course.

The new focus was students’ idea. In September, a shooting in the student center injured a young man visiting a student, and in November, a shooting outside a dormitory wounded a Morgan State football player. Neither of the alleged gunmen was enrolled at the university.

Students were concerned, says Alvin Hill, a junior who is president of the student government. “A lot of the issues at our university that elevate into these problems,” he says, “are because students just do not know how to deal with conflict.”

After the second shooting, a group of students went to meet with administrators. The issues on their minds—substance abuse, violence, lockdowns—weren’t unique to Morgan State, says Mr. Hill. But he and his peers wanted to find an original approach to dealing with them.

“We have to be individually responsible for our campus community,” Mr. Hill says. “That was one of the things that came about talking to the injured student. We have to protect our community.”

The students saw a need, they told administrators, for the college to teach them how to effectively manage disputes.

Administrators took them seriously, says Kevin M. Banks, vice president for student affairs. “When students ask for something like this, we will not say no.”

Students, faculty, and staff are now discussing exactly what form instilling responsibility in the campus community will take. Freshman orientation over the summer will include discussions and activities on conflict mediation, alerting students to campus resources. Freshman week, at the beginning of the academic year, and an existing 16-week freshman-orientation course will draw out those conversations. The course, taught by faculty members and student advisers, typically covers basics like study skills, time management, financial aid, and institutional history.

Interacting with people from other ethnic and religious backgrounds will be a key topic of discussion, says Brenda J. James, director of the university’s Center for Academic Success and Achievement. The new material, she says, is likely to follow the orientation course’s already interactive format. To prepare, the center is asking faculty members how they engage students to get them talking about related issues.

‘Not How We Deal Here’
A mandatory curriculum on conflict resolution is a wishful “what if” for many institutions, says Richard T. Olshak, associate dean of students at Illinois State University. Fledgling efforts, smaller in scope, can struggle to become established without administrative buy-in, dedicated resources, and long-term plans, says Mr. Olshak, who runs conflict-resolution programs through Illinois State’s Office of Community Rights and Responsibilities and serves as a consultant nationally. For any conflict-resolution program to succeed, he says, students must have a hand in designing it.

That’s what Heather L. Blades has found at Missouri State University. “You can’t develop a program in a vacuum and then take it to people,” says Ms. Blades, associate director of the campus Center for Dispute Resolution, which conducts research and offers training for students. “You have to make sure you’re developing something that meets their needs.”

Conflicts are going to arise at some point, no matter what, says Charlene A. Berquist, director of Missouri State’s center. Shaping the way students respond to them is crucial, she says. “Create a culture where, when we have a conflict, students know, ‘These are the ways we talk about it and how we manage it.’”

Morgan State has looked to other colleges for guidance while reflecting on what will work best for its own population. “A lot of our students come from neighborhoods where the rule is, ‘If you do something to me, I’m going to do something worse to you,’” says Mr. Banks, the student-affairs official. As soon as they arrive on campus, he says, they need to know that attitude doesn’t meet the college’s standards. “I understand you come from ‘the hood,’” Mr. Banks says, as if to a student, “but that’s not how we deal here.”

The university’s new programs are still a work in progress and will probably involve some trial and error, administrators say. Changing how people approach and react to interpersonal conflicts is a tall order.

Mr. Hill, the student-government president, knows that. Morgan State’s efforts may not work, he says, but he and his peers felt uncomfortable not trying. “Change is taking the step with one person, who leads to another person, who leads to another person,” he says. “And it has to start with somebody.”

Blogging & Bad Basketball

The only people to whom the following is news are people who will not consider it news worth knowing, but I feel compelled to mention the unfortunate series of basketball games over the last two days, the results of which leave the NCAA tournament without a blogger’s team for which to cheer.

Alas.

MM

 

 

 

“Budget Woes Claim ADR Program in Los Angeles”

Article by that title in the National Law Journal about a week ago.  Available here.  Excerpted below.

MM

Budget woes claim ADR program in Los Angeles

By Amanda Bronstad  

The National Law Journal

March 13, 2013

To address an “extreme budget shortfall,” Los Angeles County, Calif., Superior Court plans to close its alternative dispute resolution program on June 18 after 20 years in operation. 

The ADR program—the largest in the country—is the latest victim of budget cuts that have ravaged California’s judicial system. Its absence will especially punish “the average citizen who finds himself in a lawsuit,” including small business owners, victims of automobile accidents or litigants with disputes over employment issues, real property or escrow problems, said Richard Burdge, president of the Los Angeles County Bar Association. Most such cases are worth $150,000 or less. 

The ADR program helped litigants resolve their cases early before an arbitrator or mediator and avoid spending more money on going to trial, he said. 

”The program facilitates a lot of early settlement negotiations that otherwise might not happen,” said Burdge, of The Burdge Law Firm in downtown Los Angeles, who handles complex civil litigation for businesses. “Most will still settle and not go to trial, but there will be a lot more cases clogging the system, slowing things down. With all the other changes, the system is already clogged up and slowing down.” 

Of the 10,000 cases referred through the ADR program during 2012, 70 percent of litigants sought free services rather than pay for their own mediator or arbitrator, he said. But as the program expanded, he said, personnel costs increased. About 60 percent of the cost comes out of the court’s budget. 

Burdge predicted that, without the program, more litigants will pay for mediators or arbitrators, who charge between $300 per hour to $10,000 per day. Others will be forced to go to trial. 

The Los Angeles Superior Court is reorganizing as part of a court consolidation plan taking effect through June.

Under a plan announced on March 7, the program has stopped accepting referrals for arbitrations, mediations, neutral evaluations and voluntary settlement conferences from civil, family and probate courtrooms. 

By April 30, the ADR program will close offices in courthouses across all areas of Los Angeles: suburban Lancaster; affluent Beverly Hills; lower-income Compton, Inglewood, El Monte and Norwalk; and Long Beach and San Pedro. It will stop providing mediators for small claims, unlawful detainer and civil harassment cases. 

As of May 1, ADR will discontinue its daily family law settlement conferences, including Spanish-language ones, at its downtown courthouse, and by May 31 will close offices in suburban Chatsworth, Glendale, Pasadena and Van Nuys, and in Santa Monica and Torrance. 

California’s judicial system comprises 58 county trial courts, with the Los Angeles Superior Court the largest.

Watch (if you can’t go to) the Upcoming Penn State Symposium Online

On February 22, Penn State is hosting an ADR symposium entitled The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements.  Information here.  I do not know the details, but Nancy Welsh tells me that it will be available via webcast for those of us who can’t make it to Pennsylvania.

The program looks great, and it includes many of my absolute favorite and most respected ADR professors in the country.

MM