A survey of in-house attorneys conducted in July and August of 2014 showed a split of opinion about whether arbitration generally turned out to be a better solution than litigation. 42 percent called it a toss-up, 25 percent said it was a better solution, and 21 percent said it was not. The primary reasons given… Continue Reading
Many franchise agreements require mandatory arbitration of disputes, and a substantial number fall under the supervision of the American Arbitration Association (“AAA”). The AAA has issued revised Commercial Arbitration Rules that will apply to cases filed as of October 1, 2013. These significant changes were meant to address common criticisms of arbitration, including burdensome discovery,… Continue Reading
The right to a trial by jury is a fundamental liberty, residing at the heart of Anglo-American jurisprudence. It is a core value which defines us as a people and traces its roots prior to the Magna Carta in 1215. The Virginia Declaration of Rights adopted in 1776 provided that in a “suit between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”
Mediators face yeoman’s work- bringing battling litigants together and assisting them to resolve their dispute without further resort to the judicial process is by no measure an easy task. However, mediators should always be careful to heed the lessons of a recently published Appellate Division case, Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C., __ N.J. Super. ___ (App. Div. 2011), and ensure that the mediated settlement is quickly reduced to writing or run the risk of being brought into the fray as a witness when a party seeks to enforce the terms of the unwritten settlement.
In a report published for its 2009 – 2010 term, the New Jersey Supreme Court Committee on Complementary Dispute Resolution came up with certain recommendations concerning changes in the New Jersey Civil Presumptive Mediation Program. The New Jersey Supreme Court adopted the Committee’s recommendations and has amended Rules 1:40-6(b), 1:40-12(b)(2) and Rules Appendix XXVI. These amendments will take effect on September 1, 2011. The purpose of these Rule amendments are to streamline and improve certain areas of the mediation program and mediation process.
In the Matter of the Estate of Lillian L. Fischer, the Appellate Division of the Superior Court of New Jersey (Docket No. A-0091-10T2) determined that a failure to disclose information in a mediation did not require a settlement to be overturned. This case was recently decided on June 14, 2011. In the Fischer case, the parties entered into a settlement of a case as a result of a court sponsored mediation. Sometime thereafter, a disagreement arose concerning the disposition of certain assets that had not been disclosed during the mediation.
Public policy supports the resolution of disputes before a lawsuit is filed. What happens when a contract calls for mediation prior to filing suit as a condition of securing attorneys fees, if the party filing the suit suggests mediation after the lawsuit is filed? Is the failure to seek mediation a bar to a recovery of attorneys fees or is the request for mediation made just after suit is filed deemed to be substantial compliance?
The mediator privilege is extremely important to the mediation process. Without it, participants would have no confidence in the process and information necessary to assist the mediator in resolving a case would not be communicated. It has often be said that the mediation process involves two levels of confidentiality. The first level is when the parties are together in a joint session. While the communication itself at a joint session cannot be used at a later proceeding, the information conveyed has been heard by all and that cannot be changed.
Thomas J. Pryor, Shareholder and Chair of Stark & Stark’s Insurance Coverage & Liability Group, has authored the article, The Importance of Insurance Coverage in Mediating Complex Construction Claims for the March 31, 2008 issue of the New Jersey Law Journal.
Is an Arbitrator in a civil matter immune from a party’s claim of negligence that occurs during the arbitration proceeding? This is the question that was recently asked in a case heard before the Appellate Division of the New Jersey Superior Court.