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Harrisburg Alternative Dispute Resolution Law Blog

What can be done to insure a mediation deal is enforceable?

At times, it can seem the law defies logic. Take the following scenario as an example. You and another party are in dispute over some issue. Maybe you have a difference of opinion over contract terms or a construction project. Maybe you need to resolve a parenting issue in the wake of a divorce.

Regardless, you undertake mediation with hopes of reaching a timely and cost-effective settlement. Agreement is reached. Thepaperwork is drafted and signed. The next day the other side's attorney calls to report a change of heart. Does that make the mediation agreement unenforceable? If it is, is there something that could have been done to prevent things from falling apart?

Mediating high-conflict divorce may not be impossible

We have observed in previous posts that the use of mediation to sort out issues in a Pennsylvania divorce can present challenges. Because the process requires a willingness on the part of both parties to approach resolving disputed family law matters with an attitude of cooperation, mediation might not be for everyone.

Experts generally agree that one indicator of when this form of alternative dispute resolution might not be advisable is when one of the spouses has a high-conflict personality. That is, if one spouse finds myriad ways to put up roadblocks to settlement and seems bent on putting things on a track to litigation, mediation might be fruitless. But, before dismissing the idea entirely, it might be worth stepping back to consider some "ifs."

What do I need to know about a liquidated damages clause?

Regular visitors to our site may be familiar with our "Best of the Hotline" feature. This is a section where we highlight topics that are on the minds of individuals around the state. If you have a real estate-related question, you might want to check it out.

In one recent offering from this area, we touched on what can be a common issue – a misunderstanding on the part of Pennsylvania home sellers about the meaning of the liquidated damages clause in agreements signed with listing real estate agents. Our hope with this post is to try to take a closer look at what this legal term means and what its implications can be.

Is there some way to overcome a mediation impasse?

It is a principle of law that every contract implies a duty of good faith and fair dealing by all the parties who sign the agreement. How that translates into action is less clear, as all experienced attorneys know. Courts can and often do recognize that the bounds of what constitutes proper enforcement and performance under a contract can vary depending on the circumstances of a given case.

It is unrealistic to think that conflicts will never happen between two individuals. Whether the parties are family members or business colleagues, disagreements arise. There are different ways to resolve the issues. Litigation is always possible, though in recent years mediation and arbitration as alternatives have become more common, holding out the hope of finding common ground with less drama and cost.

What are the common stages of the mediation process?

No two legal disputes are exactly alike. Each has its own nuances. Because of that, there is no way to predict the outcome of a case. Bringing matters to court is the traditional means by which individuals at loggerheads would seek resolution. However, in recent years, alternative dispute resolution has often proven useful and more cost effective.

In Pennsylvania and elsewhere, courts often now encourage the use of mediation or arbitration as the first step. If satisfactory terms can't be reached through negotiation, access to the courts remains an option. The questions that an experienced attorney can help answer center on what possible outcomes might result from going to trial – at what cost – and whether ADR methods might be viable.

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. filed 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. 

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