UNM Family Law Mediation Take Aways 2012

Last month I attended 40 hours of very excellent Family Law Mediation Training conducted by Judge Nan Nash, David Levin, and Laura Bassein, for the University of New Mexico.  Although I have been mediating for a number of years, including mediating family law matters for the past two years, I benefited greatly from the training.  In particularly, I was struck by the old adage that "you don't know what you don't know," and the notion that we as mediators need ongoing and comprehensive training, with its attendant role plays, to stay sharp and continue to grow as mediators.  

In that spirit I would like to share some "take aways" for my clients and other practitioners.

NM Arbitration--State Supreme Court Bucks National Trends

In July I wrote about a NM Court of Appeals case dealing with the enforceability of an arbitration clause, Felts v. CLK Management, 2011-NMCA-062, cert. granted.  I suggested the decision was not consistent with then-emergent SCOTUS precedent, or the subsequently issued AT&T Mobility LLC v. Concepcion, No. 09-893 (Apr. 27, 2011), because of its quickness to accord itself—rather than the arbitrator—the right to determine the arbitrability question.

 

Those employed or regularly engaged in the arbitration field know that this is no light question.  As I wrote in the earlier blog, “if an agreement to arbitrate includes

Arbitration Clauses in NM--Agreement at the Extreme End

Last July, I blogged that arbitration in New Mexico was likely not in line with US Supreme Court decisions because the N.M. Court of Appeals was too quick to review and declare unenforceable certain arbitration clauses.  See Felts v. CLK Management, 2011-NMCA-062.  In my next blog post, I'll discuss similar problems in a state Supreme Court decision issued since Felts.

However, in September (yes, I know, business is good these days and I am woefully behind in my blogging!), the Court of Appeals at least has redeemed itself slightly

Judges Demand Adherence to Foreclosure Mediation Programs

As I've written before, I currently serve on foreclosure mediation panels in several judicial districts in New Mexico, and participate regularly in the Multi-State Foreclosure Prevention and Mediation Group listserve/discussions group (Listserve).

Through these discussions, I've learned that today many, many other states or jurisdictions have also organized foreclosure mediation programs in response to the foreclosure crisis.  See RSI Foreclosure Mediation and Mitigation Program Models, http://courtadr.org/file/ForeclosureMediationProgramModels_May2011.pdf (accessed Dec. 29, 2011).  Although some such programs have struggled or even been discontinued, such as in Florida, elsewhere the judges are quite committed to enforcing the letter and spirit of their foreclosure mediation orders. 

Ethics and Service of Process in the Digital Era

I'm a professional "neutral"--arbitrator, mediator and ALJ--who is also an avid tweeter and blogger.  What began as just one more way to try to build market presence quickly became something I intrinsically enjoy--although, as apparent from my increasingly sporadic by-line dates, I have more trouble finding time to do it as my business does grow!

At any rate, because of my involvement in various social media, I am especially sensitive these days to how the digital era is challenging lawyers and decision makers in many ways.  The Facebook  issue has been well trod by me and others, but new issues seem to arise every month, a couple of which I'd like to talk about.

Best Practices for Judges and ALJs to Ensure Adequacey of the Record

If you attended the 2011 annual conferences of either the National Association of Hearing Officials (NAHO) or the National Association of Administrative Law Judiciary (NAALJ), or ever attended the Fair Hearing Course of the National Judicial College, you know that an issue ALJs and arbitrators regularly wrestle with is whether and how vigilantly to ensure the creation of an adequate record. In a nutshell, "it depends," as we lawyers and neutrals all like to say.  As I've discussed elsewhere, a neutral generally will leave it to counsel to develop the record if the parties are represented, and there will be a greater obligation for the decision maker to step in if the parties are unrepresented, and/or if it is a non-adversarial proceeding involving substantial rights such as to income or licensing.  

Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well.  In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene

A Pressured Judiciary--Fact of Life and Cause for Alarm?

As a neutral decision maker of many years, I am always intrigued by the pressures that can be brought to bear on the process, and how judges or decision makers handle that pressure.  When I was a hearing examiner with the New Mexico Public Employee Labor Relations Board both the Director and I would periodically receive communication from the then-Governor's Chief of Staff, urging one resolution or another as "appropriate."  I had also occasionally received calls from or at the behest of a union president who had recommended me to the Board, seeking some particular outcome or action.  These and similar moments inevitably create some tension, but in my experience ALJs are generally able to sidestep the tension.

Because of this background, though, I have both sympathy and a healthy dose of "so what's new" for state court judges who find themselves pressured by an angry electorate.  You may recall, in 2010, three Iowa Supreme Court Justices lost their seats during retention elections in response to Court having earlier ruled that an Iowa statute limiting marriage to one man and one woman violated the State's Equal Protection Clause. It is