Resolution Newsletter of the NBA ADR Section Fall 2021

Resolution

Newsletter of the National Bar Association Alternative Dispute Resolution Section Fall 2021


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Earlene Baggett-Hayes and Paul Garrison, ADR Section Directors at the September 30, 2021 – October 2, 2021,

National Academy of Arbitrators Conference

by Paul Garrison, Esq.

From September 30, 2021, until October 2, 2021, the National Academy of Arbitrators hosted its annual conference in Marina del Rey, CA. It boasts a membership of arbitrators nation-wide. The attendees consisted of both Academy members and hundreds of hopefuls. The topics covered by a prestigious roster of guests were from “The Enduring Impact of the Pandemic on Bargaining” to “Mass Employment Arbitration Claims After Epic Systems.” Present were two African American giants: Arbitrator Homer La Rue who moderated a discussion with Mark Gaston Pearce, Executive Director, Workers’ Rights Institute, about “The NLRB: Expectations and Opportunities.” The 5-day open conference culminated with a training for Academy members only. Among the attendees were Earlene Baggett-Hayes of Pontiac, Michigan and Paul Garrison of Oakland, California who are proud members of the NBA-ADR Section. Both enjoyed the networking opportunities, the educational seminars, and the warm California sunshine! Other NBA-ADR section members should consider attending the national conference in the future. One Academy member intimated: “Arbitrators should market themselves not only to advocates, but network among other arbitrators for practice tips about opportunities.” Good advice for new and experienced arbitrators alike. Do not forget to check out potential opportunities in your local area with the NAA as well, in addition to serving as an active member of the NBA-ADR Section. Building a practice, it seems, takes dedication and sustained effort, but yields fruit in time.


The Chair's Corner

by Dean Burrell, Esq.

Once again, it is a pleasure to provide an update on the NBA-ADR Section’s activities. I am pleased to report that the state of the Section is strong, with our 2021-2022 program year jumping off to an excellent start via our second Annual Summer Planning Meeting in August 2021. Particular kudos go to Membership Committee Co-Chairs Patricia McGruder and Sharon Price-Cates, as we continue to support more than seventy Section members and steadily grow. As part of its internal membership development mission the Committee is now in the midst of presenting the Section’s Virtual Arbitration and Mediation Training, which consists of four hourly sessions conducted weekly in which we review fundamentals and best practices.


We are in the final stage of launching the Section’s website, having taken it through multiple drafts, including review at the last general body meeting. This website is the product of extensive planning and implementation by Social Media Chair Lauren Jones and committee member Johanna Bracy. The website will feature our certified Panels of Arbitrators and Mediators in a searchable format, enabling potential end users to locate our vetted arbitrators and mediators by specialty practice area and geographic region. Such search parameters will also be available internally and to all paid members of the Section because our own members are the first source of referrals. The website will include several years of the Section Newsletter, pictures and videos of past events, and other marvelous features.


The Programming Committee, led by Erika Butler and Rebekah Ratliff, are preparing a full year of webinars. Recently the Section was a co-sponsor with the NBA Women’s Lawyer Division of a program entitled “Alternate Careers in ADR: The New Normal.” We are planning our second annual January 2022 program, again with the Federal Mediation and Conciliation Service. This summer, in conjunction with the 2022 NBA Annual Convention, the American Arbitration Association will be conducting its cutting-edge program regarding neuroscience and the art of decision making in mediation, which had to be rescheduled from last year’s convention.


Our Rosters Committee also continues its work under the leadership of Chair Emeritus Gloria Johnson and myself. We are in the process of certifying new arbitrators and mediators of color from the pool of those who attended the annual certification training conducted by the Federal Mediation and Conciliation Service this past summer. The Committee looks forward to again presenting this training in conjunction with the FMCS next summer.


In closing, I would like to thank Newsletter Committee Chair Carl Turpin and his committee (Judge Jon Gray, Joyce Mitchell, Sharon Price-Cates, and Gail Wright Sirmans) for all of their efforts in creating past, present, and future newsletters. Year in and year out they publish a simply topnotch document which has only gotten better over time.


COMMENTARY “Court Ordered Mediations: Fail to Comply at Your Own Risk” by Lauren A. Jones, Esq.

[This article was first published in “On Professional Practice” Dispute Resolution Magazine, August 2021]

In more than a decade of litigating in private practice, I never even considered the idea that a judicial order could be disregarded. Just the thought of missing a court-imposed deadline struck fear into me. Since leaving private practice five years ago, however, I have wondered: Has the mindset among litigators changed. Surely it must have. Why else would the question of whether parties have to comply with court orders directing them to appear at mediation be debated in so many circles? Maybe at the heart of these spirited discussions is one seemingly simple question: Can a court order parties to appear at mediations? I think the answer to that simple question is yes. Today courts across the country are empowered to issue orders directing parties and/or their counsel to appear at mediation. Of course, the court orders cannot and do not provide any direction regarding parties’ willingness and/or necessity to settle. But the parties are expected to appear in compliance with the court order.


The question that has not been uniformly answered is, what happens if a party disobeys

this court order? Is this order treated as any other? More harshly? More lightly? A recent California Court of Appeals case, decided 2-1, has catapulted this question to the foreground for many litigators. For some, it provides security that court orders mean something and cannot simply be flouted. For others, it raises concerns that the consequences are disproportionate. In Breslin v. Breslin,1 decided first by the California trial court and then heard on appeal and later re-argument by the Court of Appeals, the trustee of a decedent’s trust petitioned the probate court to determine the trust beneficiaries. The potential trust beneficiaries received notice of the petition. The probate court ordered the matter to mediation. The mediation, for reasons that are not clear, was adjourned several times and finally scheduled for a specific time. The same potential beneficiaries received notice of the mediation, but only five out of the twenty-four interested parties appeared at the mediation. Despite some parties’ absence, a full resolution was entered into at the mediation. A non-appearing party, unhappy with the results of the mediation, sought to dismiss the settlement and have it rejected by the court. Over the non-appearing party’s objections, the court confirmed the settlement and marked the case resolved. This trial court decision was appealed and was affirmed by the Court of Appeals.

As a former litigator, court attorney, and now ADR program coordinator I personally

believe – as I always have – that court orders cannot be ignored. There are many mechanisms available to contest orders issued by the courts, the least of which is to object at the time the order is issued or the subject of the order is being discussed. In mediation referral orders, such as in Breslin, one would think the parties who decided not to show up might have at least 5 contacted the mediator and/or other parties to advise those individuals that they would not be appearing.


From the facts presented and shared in the decision, such efforts do not appear to have been made. Therefore, probably from the court’s perspective, its order was apparently completely ignored. And if more than a decade of litigating, followed by four years of working side by side with judges, has taught me one thing, it is that judges do not appreciate having their directives blatantly ignored.


In truth, I do not think the concept that a judicial order should not be ignored is truly

controversial. Once again, where more debate might arise is over what the penalties for failing to comply with a mediation referral order should be? How harshly should an order be enforced, particularly considering the idea mediation is designed to be a voluntary process? Research shows that the penalties can range from a warning to monetary sanctions to outright dismissal. Three recent cases highlight the varying ways that three different New York courts have handled failure to comply with court-ordered mediation. In June 2020, Robert W. Lehrburger, a US magistrate judge for the Southern District of New York, issued a dismissal sanction against a plaintiff in an employment discrimination matter who cancelled a court-ordered mediation three days before it was scheduled to begin. A review of the record confirms that this failure was not the plaintiff’s first violation of court orders but the most recent of several, including the failure to provide authorizations, the failure to respond to discovery demands, and the failure to appear as directed.


On the other side of the spectrum, in July 2019, Southern District Judge Jesse M. Furman issued only monetary sanctions against a non-complying party. In a copyright infringement case, the parties were ordered to attend mediation. The plaintiff failed to provide available dates and did not seek relief from the court’s order; he simply failed to respond to the mediator’s attempts to contact him. The court found the plaintiff’s behavior and disobedience to be willful and assessed a sanction in the amount of $8,745, which represented the defendant’s reasonable attorney’s fees from the date on which the court ordered the parties to appear at mediation. The plaintiff sought reconsideration of the issuance of the sanction, which was denied.


On the state court side of things, in 2019, monetary sanctions were awarded by the New York Appellate Division, Second Department, in the amount of $750 for failure to appear at a mandatory mediation session to resolve an appeal. Without good cause, one of the parties failed to appear for the scheduled mandatory mediation session, and there was no indication that the attorney who appeared on behalf of the party had the authority to settle the matter. The court reasoned that while “parties are not compelled to resolve their appeals by settlement, parties and their counsel are required to attend mediation sessions and may not arrogate unto themselves the authority to dispense with a mediation session or to render such sessions nugatory by refusing to appear and participate in them.”4 Clearly, even from just this sampling of three recent cases, on both the federal and state level in New York, there is not a bright-line rule specifically setting forth: 1) what sanctions should be issued for failing to comply with court orders directing mediation, 2) how “noncompliance” is, in fact, defined, and 3) how many violations are required before a penalty is assessed. The wide latitude given to judges to determine which cases should be sent to mediation is the same scope of freedom afforded to them to mete out sanctions for litigants’ failure to comply with judicial orders. Of course, there is 6 precedent judges can look to, and it may be that some judges are more willing to overlook these violations than others, but until there is a hard and-fast rule about what risks parties face by running afoul of a judicial mediation referral, the rule of thumb should be to comply and appear for mediation – or speak up in a timely manner if you object to being ordered to do so. Anything short of that could leave a party exposed to sanctions. While the debate may rage on as to whether court-referred mediation should exist at all, Breslin and its progeny – not to mention applicable statutes – confirm that the judicial authority to refer to mediation is all around us. Breslin is a stark reminder of the all-important lesson most of us learned as children: every action, or inaction, has a consequence.


Lauren A. Jones is the ADR Coordinator for New York City Surrogate’s Court. After receiving her B.A. from Duke University and law degree from Brooklyn law School, she worked as a litigation partner at Lewis Brisbois LLP. Ms. Jones is the co-chair of the NBA-ADR Section Social Media Committee.


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