We invite you to check out an article entitled “Everything You Need to Know about Authority to Settle a Mediation” by James R. Madison. The piece was published in the May-July issue of the AAA’s Dispute Resolution Journal. Following are two preview pages: I. Introduction Imagine being the mediator who convenes a mediation with the objective of settling a dispute between Party A and Party B only to learn when the participants gather that no one present for Party A is authorized to reach an agreement. Imagine the reaction of Party B. A disaster for the prospects of settlement? Of course. So what needs to be done to forestall such eventuality? What kind of authority is necessary to create a realistic potential for settlement? Who will have the authority? Must that person be present in the room? And how and when should a mediator go about the task of ascertaining the answers to questions such as these? II. Authority to Settle—An Overview In a private mediation—i.e., one that is not administered by or referred from a court—it is easy to say that a settlement cannot be achieved without the participation of a representative of each side who has authority to decide whether to settle and for what amount of money based on a combination of what is known before the mediation conference, plus anything that is learned at the conference. The article is available for download (for a fee) here. Technorati Tags: arbitration, ADR, law

In Milner v. Milner, No. 10-0776 _S.W.3d __ (Tex. March 9, 2012) Vicki and Jack Milner signed a Mediated Settlement Agreement (“MSA”) after Vicki filed for divorce. In this MSA, Jack agreed to transfer to Vicki all of his beneficial interest (subject to existing liabilities) in a partnership and a limited liability company (the “Partnerships”) that were formed during the parties’ marriage. The MSA contained two exhibits entitled “Required Consent to Transfer of Record Title and Beneficial Ownership Interests” followed by the name of the respective business and had signature lines for all of the owners. The owners signed as required by their partnership agreement. Joey Milner (Jack’s brother) signed the exhibits four days after Jack and Vicki executed the MSA. Four days after that, however, Joey sold his interest in both Partnerships to Michael Hill. Hill never signed the exhibits to the MSA, thereby preventing Vicki from obtaining the consent required for her to become a limited partner. Jack filed with the trial court his draft of an Agreed Decree of Divorce. Vicki objected to the proposed decree, arguing that it did not comply with the MSA and moved to withdraw her consent to the MSA. The district court denied Vicki’s motion and entered judgment dividing property pursuant to the MSA. Vicki appealed. The Fort Worth Court of Appeals reversed based on a determination that there was no meeting of minds regarding Jack’s interests in the Partnerships that he transferred to Vicki, and remanded to District Court for new property division. The issue before the Texas Supreme Court is whether the Court of Appeals erred in setting aside the underlying MSA which the trial court purported to follow in its divorce decree. The Texas Supreme Court held that (1) the MSA pursuant to which Jack agreed to transfer his interest in the Partnerships to Vicki, subject to the partnership agreement, was binding and irrevocable, because it satisfied statutory formalities governing same, and it was signed by both husband and wife and their counsel; and (2) the MSA was ambiguous, thereby creating question of fact regarding parties’ intent for mediator, not the district court, to decide. Technorati Tags: arbitration, ADR, law  

We recently stumbled upon an article regarding the sudden prevalence of arbitration agreements (between doctors and patients) in the context of medical procedures. Here is an excerpt: Arbitration agreements seem to be popping up in every kind of transaction these days. For those who are unfamiliar with them, they are contracts where parties give up their rights to go to court and present their cases to judges and juries. These probably make sense in a lot of commercial relationships like with credit cards, exterminators, cell phones or FedEx. It will in most cases streamline the dispute resolution process by eliminating the time and delay that most litigants experience if they are trying to move their case through our already-overburdened legal system. I have been suing doctors and hospitals in Miami for over twenty years, and recently I have seen these arbitration agreements pop up in plastic surgery and nursing home cases with an alarming frequency. I do not believe that health care is a commercial transaction. Sure, money is exchanged for services, but the inclusion of arbitration agreements by doctors and clinics highlights the fact that, to most providers, patients are nothing more than customers — customers who carry a limited profit upside and a potentially unlimited legal exposure downside, when and if things go wrong. That being said I would like to clarify that at this time this is no universal. There are plenty of medical centers and plastic surgeon offices in which the patient is handled properly and with respect. To provide an example at Body sculpting Long Island there is no such agreement to be signed and the patient is fully briefed on the risks any procedure, whether big or small could incur. The patient then takes a well informed decision fully aware of the situation. This human approach while less common, is present in enough places for me to make a small mention. Continue reading here. Any comments? Technorati Tags: arbitration, ADR, law

The Bexar County Dispute Resolution Center (“BCDRC”) awarded our blog contributor Don Philbin with its Distinguished Service Award for 2011. The BCDRC recognized Don Philbin for his community service, particularly in multi-party and public policy disputes. Read more here. Please join us in congratulating Don!