Judges Weigh in On Value of Pressing for Settlement

The Spring 2012 issue of the ABA Journal of Litigation interviewed two federal Judges, Judge Dan Polster of the Northern District of Ohio and Magistrate Judge Jeremiah J. McCarthy of the Western District of New York, regarding their mediation philosophies.  Id., Judicial Mediation:  Two Judges' Philosophies.  Ultimately, they both believe--and I think most decision makers would agree--that parties and the judicial system are almost always better off with voluntary settlement, so much so though that "even aggressive judicial settlement efforts" may be warranted, although caution is always required.

Foreclosure Mediation More Like Facilitation

As a foreclosure mediator, I've previously written about some of the benefits and limitations of mediation foreclosure.  See  Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  Recently, Susan M. Yates and Heather Scheiwe Kulp have written about mediation foreclosure, and note that "foreclosure mediation" often does not look much like "mediation" as we ADR practitioners typically think of it.  I have also noticed this, and frequently discuss it with my foreclosure mediation clients.  

I describe it as more of a "facilitation" process in which I help the homeowner and the right and left hands of the bank speak together about foreclosure and loan modification. 

Administrative Standing in NM

In New Energy Economy, Inc. v. Hon. Linda M. Vanzi, 012-NMSC-005, the Supreme Court answered the question, "What level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal?"  After very fine and comprehensive analysis, discussed below, the Court holds that  "those who have participated in a legally significant manner in administrative rule making ... have the right to participate as parties to an appeal if they express such an intention."

Dangers of Applying the "Beguilingly Simple" Plain Meaning Rule

Previously, I have written about the New Mexico Medical Malpractice Act (MMA) and it's Review Panel on which I serve.  See NM Medical Review Commission - Overview and  NM Medical Review Commission - Stats.  Because I do serve on the Review Panel, med-mal cases are always of interest to me, obviously.  However, one recent decision also teaches important lessons on statutory construction generally, which is quite relevant to an arbitration practice like mine.  Specifically, Baker  v. Hedstrom M.D., et al., 2012-NMCA-073 (cert granted), teaches us to "exercise caution" in applying the "beguilingly" simplistic "plain meaning rule."

Schools and ADR Opportunities

Schools are integral institutions to today's society--they educate our children, they are the social stomping grounds where our children learn much more than "the 3 Rs," they employee many talented hard working folks, and they can be social hubs for the communities in which they reside.  Not surprisingly, alternative dispute resolution (ADR) opportunities can abound in these multifaceted environments!  Gearing up for the new 2012-2013 school year, the Summer 2012 Dispute Resolution Magazine is devoted to discussing how mediation and other forms of ADR intersect with the school environment.

Effect of Belief in Bias

An interesting note in the September 2012 ABA Journal:  belief in bias or belief in the existence of negative stereotypes about a group to which you belong, can block your success.  Research by Steven Spencer, psychology professor at the University of Waterloo shows that when a group of students were told men do better on a graduate level math test, the men in fact did better.  However, there was no difference if the students were told there was no score difference based on gender.

AFSCME Can't Force Arbitration

Back in July -- I know, this is dangerously close to 'old news' but it's still an interesting tidbit -- Judge Beatrice Brickhouse of the Second Judicial District concluded that a local AFSCME chapter could not force the City of Albuquerque to arbitrate under a compact signed in the latter days of the outgoing Chavez administration.