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Mediate.com Expands into Arbitration

Mon, 2021-03-01 11:15

With a new CEO at the helm of Mediate.com, after a generation of loyal and visionary service by co-founder Jim Melamed, the pre-eminent online resource for mediation has now launched an initiative to offer the pre-eminent online resource for arbitration. Launched last week, Arbitrate.com looks to be a winner.

The site’s subtitle is “Everything Arbitration.” While that’s a hefty claim, you can see already that Colin Rule, Melamed’s successor, is ready to take a stab at it. Like its mediation-oriented predecessor, Arbitrate.com hosts lists of practitioners with easy links to their websites and contact information. It also maintains a home for informed threads of discussion, called “Arbitration Conversations,” and a separate group of threads called “Arbitration TNT” — shorth for “tips-and-tricks,” a place to share experiences and administrative suggestions.

Across the top banner of the home page are links to topic-specific arbitration practices: commercial, government, intellectrual property, international arbitration, and labor and employment. There is also a section for Colin’s favorite topic, “O-Arb.”

The site is intended to attract informed content contributors and one assumes that, with the passage of time, Arbitrate.com will be a repository of insights in both theory and practice as robust as its mediation sibling. Let’s welcome a new and, one expects, uniquely valuable resource for arbitration students, practitioners and end-users.

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Mediation Confidentiality in Federal Court

Tue, 2020-12-29 12:13

As a consequence of the absence of uniform adoption of the Uniform Mediation Act, the confidentiality of mediation communications in various jurisdictions often cannot be assured. Thanks to Alan Waxman, President and CEO of the International Institute for Conflict Prevention and Resolution (CPR), for bringing to our attention the most recent contributions to this confusion.

In Accent Delight International Ltd v Sotheby’s, 18-cv-9011 (S.D.N.Y. Dec 8, 2020), Judge Jesse Furman ruled on a motion seeking discovery of materials relating to a private (as opposed to court-ordered) confidential mediation that took place in an effort to settle a separate dispute between Sotheby’s and certain sellers of an artwork. In that prior mediation, Sotheby’s and the sellers entered into an agreement with the mediator that the mediation “was a settlement negotiation deemed private and confidential.” Plaintiff Accent Delight sought production in this action of the confidential settlement agreement reached in the prior litigation, as well as approximately 250 other documents related thereto, including communications between Sotheby’s counsel and the sellers’ counsel, and communications with the mediator.

The problem in the Second Circuit is the holding in In re Teligent, 640 F.3d 53 (2d Cir. 2011). There, the court affirmed the denial of a motion to compel disclosure of documents relating to a mediation, holding that a party seeking such disclosure “must demonstrate (1) a special need for the confidential material, (2) resulting unfairness from a lack of discovery, and (3) that the need for the evidence outweighs the interest in maintaining confidentiality.” One might have hoped for a more categorial assurance that confidential means confidential, but it was a welcome holding nonetheless.

The problem was that the mediation at issue in Teligent was court-ordered. One would assume that such a fact mattered as much as whether it was held on a Tuesday, but unfortunately no. In 2019, the Southern District held in Rocky Aspen Mgmt. 204 LLC v. Hanford Holdings LLC that the heightened showing required in Teligent applied only with respect to mediations that — like the one in Teligent itself — were conducted pursuant to court order. The court there reasoned that the promise of confidentiality had been extended by a government agency — the court — and not by private parties engaged in private discussions. Rather, the mere “good cause” standard of FRCP 26(c) applies to the discovery of information exchanged during mediation where there is no promise of confidentiality by a court.

In Accent Delight, by contrast, Judge Furman held that the heightened standard articulated in Teligent applied to mediation communications irrespective of whether they are court-ordered. The rationale of the confidentiality of settlement discussions — that they lead to resolution of disputes — applies equally whether the discussions take place voluntarily or by order. Making such a distinction would act as a disincentive to parties considering entering into private mediation. And such a ruling conforms to the conclusion of courts outside the Second Circuit. Some of those other rulings expressly link a “heightened standard” to FRE 408, which shields statements made during settlement negotiation for precisely the same reasons.

Things remain, as noted, un-uniform. In the Southern District a court has compelled mediator testimony to establish whether the mediator gave permission to a party and counsel to be excused from in-person attendance at a court-ordered mediation. Usherson v Bandshell Artist Management (S.D.N.Y. Dec. 9, 2019). On the other hand, the Fifth Circuit recently held that allegedly threatening statements made during mediation were inadmissible in an action to set aside a mediated settlement on the ground that the plaintiff had been coerced. Areizaga v. ADW Corp., 796 Fed. Appx. 205 (5th Cir. 2020).

Where does this leave the practicing mediator? We include in our agreements a promise of confidentiality. The parties agree that statements and other communications will be held both confidential and inadmissible. We require that they agree not to subpoena documents or testimony from the mediator, and to indemnify the mediator for any costs related to such an effort. Then, I suppose, having done all we can, we let the participants do as they deem fit.

They will anyway….

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