3rd Annual ACEDS Conference a Springboard for Firm’s E-Discovery Services
The Association of Certified E-Discovery Specialists (ACEDS) presented its third annual conference in Ft. Lauderdale earlier this month. Larry Watson and Michael Orfinger joined me at the conference, our first since becoming credentialed by the group as Certified E-Discovery Specialists (CEDS) following a rigorous course of study and an examination. A central theme this year was the emerging area of computer assisted review, or “CAR” (sometimes called technology assisted review or “TAR”), using a technique known as predictive coding. This method enables the software to read a small sample of appropriately identified relevant documents selected by trained reviewers, out of perhaps a set of 2,500 documents, create a sophisticated algorithm from that exercise and then apply it to a massive…
Read More ›What’s going on over there?
I am often asked questions akin to, “What’s going on in the other room?” The “other room” is your counterpart in the process of mediating. Sometimes the question is asked just to make sure the process is sailing smoothly and that we aren’t about to hit any shoals. At other times, I know it is motivated by concerns about the pace of progress. Either way, it is a good question. While confidentiality and privilege limit what mediators can share, here are some examples of what may be going on in your counterpart’s room. You have, no doubt, witnessed these things in your own room from time to time. The lawyer is likely trying to do his or her level best…
Read More ›Mediating in Mayberry
North Carolina lost its favorite son earlier this year when Andy Griffith died at the age of 86. Griffith starred on The Andy Griffith Show from 1960 to 1968. Griffith played the role of Sheriff Andy Taylor, the sheriff, justice of the peace, and all-around voice of reason in the fictional town of Mayberry, North Carolina. But in addition to all his other attributes, Sheriff Taylor was a mediator extraordinaire! The current issue of the newsletter published by the Professional Mediation Institute (of which I am privileged to be a director) features the article “Andy Griffith: TV Land Mediator”, by Professor Paula M. Young of the Appalachian School of Law in Grundy, Virginia. Professor…
Read More ›“The Principle” May Very Well Play a Role in Achieving Resolution
Understanding of the facts and legal principles of a particular case is only half of the equation of mediation. An understanding of the personal philosophies and principles that motivate the parties is the other part of the equation. We have all experienced the statement, “it’s not the money it’s the principle”. Before we write this statement off, an understanding of the principle, can help the perceptive mediator get to the money. Whether a mediator is dealing with a religious source of reference, a culture nuance from another country or region, or a personal philosophy that is shaping someone’s concept of fairness or equity, identifying the importance of these perspectives is vital to assisting parties reach common ground. All religions, cultures,…
Read More ›Discovery Violations May Lead to Rescission of Mediated Settlement Agreements
It requires no citation of authority to say that the law favors settlements. Yet settlement agreements are contracts and, as such, are subject to the same defenses to formation or enforcement as any other contract. Last week, Florida’s Fourth District Court of Appeal visited this issue, and held that a mediation settlement agreement predicated on a unilateral mistake of fact could be rescinded where one party withheld material information in discovery. More specifically, the court in Garvin v. Tidwell, 37 Fla. L. Weekly D2506a (Fla. 4th DCA October 24, 2012) announced that, “Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.” In…
Read More ›Is Baseball Arbitration a Viable Mediation Endgame?
My last two blog posts have discussed “endgame” tactics to break a looming mediation impasse. One such tactic is the “Dutch Auction”; another is commonly known as the “Savoy method”. I offer here a third tactic: combining mediation with “single-offer” or “baseball” arbitration. The latter name is derived from the use of this mechanism for salary arbitration in Major League Baseball. Let us assume that at the end of a mediation session, the parties find themselves $1 million apart, with neither party willing to make any further concessions. The parties could agree at that point to settle the lawsuit by submitting the case to an arbitrator, to whom each side would submit one figure at which they would…
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