Question: Does Mediation Undermine Justice?
Critics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.
In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.
California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:
Our Supreme Court has clearly and unequivocally stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…
The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.
The judge called upon the Legislature to act in the best interests of justice and the public:
Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.
Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.
Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:
Feel like committing malpractice? Selling out your client?
That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.
Remember that the next time you agree to participate in a mediation.
[thanks to MediationBlog]
You Can Get Cited For Leaving Your Child Unattended in a Library
Curtis, at the Oregon Library Association Legal Ease pre-conference, you mentioned that Oregon has a law that applies to unattended children left in a public libraries. Could you tell us more about it?
Curtis Kiefer: Six years ago when we were reviewing our code of conduct for the library, we were going through a period when many young children were being left at the library for extended periods (4-8 hours) or not being picked up at library closing time. As we often do, we look at what Oregon law has to say on a particular issue, write our policy and have it reviewed by our City Attorney. We found that the statute cited below could be applied to libraries.
Is there a specific age that the law applies to?
Kiefer: I am including the language in the Oregon Revised Statutes (2005) that addresses age.
163.545 Child neglect in the second degree.
(1) A person having custody or control of a child under 10 years of age commits the crime of child neglect in the second degree if, with criminal negligence, the person leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.
(2) Child neglect in the second degree is a Class A misdemeanor. [1971 c.743 §174; 1991 c.832 §2]
So far we have invoked this once when a father loudly announced to his young daughter that he was leaving because she wouldn’t get off an educational software computer.  He left, we called the home where the mother responded with, “Oh he does that,” and then we called the police.  Once the police became involved (I believe he received a citation) he threatened to sue the library. Once legal counsel was consulted he found that he didn’t have a case. That was the last we heard of the incident.
Self-Destructing Toilet: Woman Sues Trump Taj Mahal
Toilets are dangerous.
I didn’t know that. But know I do. They can put you in jail. They can give you serious injurious. I officially call for a ban on toilets and I expect all our loyal readers to join us in this mission to eliminate this scourge from the Earth.
But really, there’s been a recent upsurge in lawsuits involving everyone’s favorite bathroom fixture. You might recall the lady who screamed at her toilet and was almost put in jail. The brief rundown of that post was that a lady was getting irate and furious about her overflowing toilet. She started shouting expletives around and calling for her daughter to get a mop to clean the mess up. Neighbor is a police officer, calls the cops on her, and she gets cited for disorderly conduct.
Now the toilet strikes again. Its blood-lust cannot be controlled, you can only hope to contain it. And Donald Trump is pissed.
The self-destructing toilet incident
Jean Ciocci, a 74 year old woman from Philadelphia, was staying at the Trump Taj Mahal in Atlantic City. She decides to use the toilet in her room. CRACKKKK! The toilet breaks away from the wall – taking her down with it! Can you even imagine sitting on a toilet and it tears away from the bathroom wall? I mean, you sit down, its your private time to relax and get away from the world, and boom, you’re on the floor with a overflowing toilet on top of you. To add injury to insult, she suffered serious injuries which resulted in a disability in her arm. That’s major toilet damage!
She sued the Trump Taj Majal.
The result
The Trump Taj Mahal Casino believes it to be hard for Jean Ciocci to be able to prove her case. Even after this statement, they decided to settle with Ciocci for $1.2 million dollars – Ciocci accepted.
“I think the Trump casino behaved responsibly in terms of recognizing that the toilet wasn’t properly mounted and by offering a fair settlement in this case. We’re hoping she’ll be able to use some of this money to make improvements to her house so she’ll be able to get around,†said Daniel J. Mann, who is Ciocci’s lawyer.
When will toilets stop their destructive warpath? Stop the madness!
