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Harrisburg Alternative Dispute Resolution Law Blog

Looking at the statutory exceptions to mediation privilege in Pennsylvania

Previously, we began looking at the topic of confidentiality and privilege in the context of mediation. As we noted, the general rule is that all mediation communications are both confidential between the parties involved and privileged, meaning that their disclosure may not be compelled in litigation or other processes.

Under Pennsylvania law, there are certain exceptions to this rule, and it is important for those entering into the mediation process to be aware of these exceptions and act accordingly. One exception is when a party to the mediation seeks disclosure of a settlement agreement for the purpose of enforcing that agreement in court. In order for a court to enforce the agreement, the terms would have to be disclosed. This exception does not apply, though, when the settlement document states that it isn’t intended to be legally binding. 

Pennsylvania class action raises issue of confidentiality, privilege in mediation

Pennsylvania readers may remember the so-called “kids for cash” scandal, which involved judicial kickbacks in the Luzerne County Court of Common Pleas. Between 2000 and 2007, two judges had been accepting bribes from Robert Mericle, the builder of two youth centers, in exchange for contracts with the centers and for making decisions aimed at increasing residents at the facilities. Apparently, the judges took over $2.8 million.

At present, there is a proposed class action in federal court which is connected to the scandal. The proposed class is all the individuals who were illegally incarcerated as juveniles. One interesting aspect of the case is the issue surrounding confidential mediation settlement agreements reached between other defendants and Robert Powell, a co-owner of the juvenile facilities.

Pennsylvania State Real Estate Commission Sued By Property Manager!

What an attention-grabbing headline, and it is accurate! Before all real estate licensees let loose with a collective cheer of approval, we need to examine what conduct has motivated this unusual and provocative action.

This lawsuit was brought on behalf of Sara Ladd ("Ladd") and Samantha Harris ("Harris"). Ms. Ladd owns two (2) vacation properties in the Pocono Mountains resort area. Ms. Ladd describes herself as an entrepreneur who works from her home in New Jersey as a digital marketing contractor. Beginning as early as 2009, Ms. Ladd began renting one or both properties to vacationers as an additional source of income. By 2013, she was convinced that she was more effective and more efficient at renting her cottages than a real estate licensee would be.

Jackson couple’s court-ordered divorce mediation attempt fails

Readers may have heard of the ongoing troubles between Jesse Jackson Jr. and his wife Sandi Jackson. In 2013, both Jackson and his ex-wife pleaded guilty to charges of fraud and conspiracy for using campaign money on personal expenses, and both subsequently spent time in prison on the convictions. Following the prison sentences, Jesse Jackson Jr. frilled for divorce.

Now the couple looks like they will be headed to trial after a failed attempt at mediation. The couple had reportedly agreed to mediation in June at the request of the judge handling their case. They were to complete a minimum of four hours of mediation with a neutral mediator who doesn’t represent either of them. According to Jesse Jackson Jr.’s attorney, differences in how to handle a financial settlement were largely behind the failure. 

What is “baseball arbitration” and how can it be used effectively to resolve disputes? P.2

In our last post, we began looking at a proposed bill that would require health care providers and health insurers to proceed to arbitration when they cannot agree on who is responsible for paying health care costs that exceed a patient’s in-network costs. As we noted, the specific form of arbitration in which the parties would participate is commonly known as “baseball arbitration.” It is also called either/or or final-offer arbitration. This form of arbitration is commonly used to resolve commercial disputes.

In many commercial or other disputes that go to arbitration, one or both parties enter the process with a fixed position they believe is correct or at least reasonable, and expect to be vindicated in arbitration. Ordinary arbitration, fortunately, allows for parties to modify their position in the process and to receive an outcome that doesn’t entirely favor one party over another. That isn’t the case in baseball arbitration. 

What is “baseball arbitration” and how can it be used effectively to resolve disputes?

Medical bills can be burdensome to deal with, particularly when they come unexpectedly. One of the ways patients can be surprised by medical bills is when they end up receiving a service from a provider or facility that is outside their network. This can happen even to patients who are careful about selecting health care within their network.

A bill recently introduced in the Pennsylvania House of Representatives seeks to address this problem by requiring insurers, providers and facilities to work with patients when they unexpectedly receive billing for out-of-network services. Consumers would, under the bill, only be obligated to pay for an amount equal to what they would pay for in-network services. This means that insurers and providers would have to work out who pays the difference. 

Class arbitration in oil, gas lease disputes at issue in federal case in PA, P.2

Previously, we began looking at a federal case in Pennsylvania involving the issue of class arbitrability, or the ability to pursue class arbitration of a dispute. The case we’ve been looking at involves an oil and gas lease dispute, and we mentioned that the federal court ruled that the contractual language did not allow for class arbitration, but require bilateral or individual arbitration.

One of the points the court made in its analysis is that the specific language used in arbitration agreements is important with respect to the question of whether class arbitration is permitted. In short, there must be explicit language permitting class arbitration in order for the courts to allow it. When an agreement is silent as to class arbitration, the presumption is generally going to be that it is not allowed. 

Class arbitration in oil, gas lease disputes at issue in federal case in PA

Arbitration can be a useful tool for resolving disputes in a variety of contexts, but it is important for parties who enter into arbitration agreements to always be thorough and clear in addressing matters that could be disputed down the road. One such issue is the arbitrability of class action cases.

While arbitration is ordinarily bilateral—involving two specified parties—there is also the possibility of class action arbitration. Arbitrating a class on behalf of a class can allow members of the class who don’t have the resources to pursue arbitration to benefit from the proceedings. One issue that can come up when a party attempts class action arbitration under an arbitration agreement, though, is whether the dispute may be resolve that way.

Using alternative dispute resolution to resolve commercial disputes, P.2

Previously, we began looking at the use of mediation to resolve commercial disputes, and some of the benefits this process may present for businesses. These benefits include cost savings, greater control over the process, and privacy. An alternative to the use of mediation is arbitration.

Arbitration has many of the same benefits for resolving commercial disputes as mediation. More control and flexibility, cost savings, and confidentiality are all important factors to consider. According to the ABA, parties are typically also able to resolve disputes much more quickly with arbitration than litigation. Time is money, and this results in extra cost savings. 

Using alternative dispute resolution to resolve commercial disputes, P.1

Commercial transactions, to be successful, must be properly coordinated with a clear understanding between parties of their mutual obligations and rights. When the other party’s duties aren’t fulfilled, quickly addressing the matter is important in order to avoid the financial, reputational, and existential threats to the business that can result.

There are various ways commercial disputes can be resolved, whether through working the matter out privately early on, through litigation, or through alternative dispute resolution processes such as mediation or arbitration. Commercial mediation can be a particularly effective way to resolve commercial disputes. 

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