Posted: April 26, 2010
Rules of Court-Annexed ADR
URCADR 0101. Conduct of mediation proceedings. Amend. Clarifies the meaning of “good faith” to assure that the ADR rules regarding the confidentiality of mediation-related activities and communications are consistent with the 1995 Utah ADR Act and the more explicit confidentiality requirements of the 2006 Utah Uniform Mediation Act. Eliminates the potential that a court might conclude that the present language of Rule 101 permits judicial examination into what occurred during the course of a mediation upon the complaint that a party failed to participate in the mediation in “good faith”. The intent is to assure that the mediation container is maintained except in the narrow circumstances described in the 2006 Utah Uniform Mediation Act.
URCADR 0103. Confidentiality in nonbinding ADR proceedings. Amend. Clarifies the meaning of “good faith” to assure that the ADR rules regarding the confidentiality of mediation-related activities and communications are consistent with the 1995 Utah ADR Act and the more explicit confidentiality requirements of the 2006 Utah Uniform Mediation Act. Eliminates the potential that a court might conclude that the present language of Rule 101 permits judicial examination into what occurred during the course of a mediation upon the complaint that a party failed to participate in the mediation in “good faith”. The intent is to assure that the mediation container is maintained except in the narrow circumstances described in the 2006 Utah Uniform Mediation Act.
I think the clarification should be to enlarge good faith investigation. Recently, insurance companies are not sending representatives to the mediation or if a representative does appear the representative does not have authority or decision making authority to resolve the matter. When we prepare for a mediation, we spend numerous hours preparing the mediation brief, reviewing the file, medical records and disovery. We meet and prepare our clients. Recently, many mediators acknowledge that the insurance companies do not attend the mediation with the intent to consider settlement. Moreover, most mediators are frustrated because they can not communicate with a representative with authority to settle. Many times there is no represenative at the mediation or available to talk with to discuss the major issues. In the end, the mediation process is becoming so expensivwe with no real hope of settlement. Without a rule in place mandating representatives attend who have auhtority, and requiring the participants to attend in good faith, the process will not be effective and not a viable option to explore settlement. I suggest contacting mediators to get a feel for the current frustrations. Thanks George Waddoups
This is a bad idea. Merely showing up at the mediation, and not being prepared to “discuss and settle all relevant issues” is simply not mediation in good faith. Without the authority to discuss and settle all relevant issues, mediation under the proposed rule would waste time and resources for all parties involved. I would urge this committee to reject the proposed change because it undermines good faith mediation.
Sub-part (h) states that attendence = good faith. Such a requirement is unrealistic. Many times, large corporations, insurance companies, etc. will attend mediations with no intent to negotiate but are there simply because they were ordered there by the court or thought they could intimidate the mediator into working for them. The proposed change to section (c) invalidates the mediation process for the same reasons. If the Court desires ADR, then it needs to have teeth in its Rules or drop the entire ADR process.
I believe that the rule needs to reflect the importance of “good faith” attendance. Mere attendance doesn’t necessarily equate to good faith attendance. I have attended too many mediations where the insurance company defending the claim hasn’t given any settlment authority to their counsel and/or didn’t attend or weren’t available telephonically.
Mediations have become too costly, especially in a situation where one side hasn’t come with any meaningful authority to try and settle the case. This is especially true in court ordered mediations. If the insurance company isn’t going to attend in good faith and attempt to resolve the case, then professional courtesy as well as the governing rules should mandate disclosure of this fact in advance so that the court can be petitioned to waive the mediation requirement.
By taking out the language “SHALL BE PREPARED TO DISCUSS, AND SHALL HAVE THE AUTHORITY TO FULLY SETTLE ALL RELEVANT ISSUE IN THE CASE”, we open the door to some abuse that has already taken place with that language in. Do we really want to open that door and have no accountability for defendant’s who would abuse this?
To only mandate that a party attend the mediation and stay until it is terminated without also mandating that the party “be prepared to discuss, and shall have the authority to fully settle” the case means that the mediation will probably be very short. Attendance at the mediation without any authority (or intention) to settle makes the mediation a sham. Parties, particularly plaintiff’s, put a substantial amount of time and effort (and on the part of the injured plaintiff, emotional effort)into preparing and attending mediations. All of the parties should be required to attend ready and prepared to settle the matter or the mediation is only an exercise.
mere attendance should not be deemed a good faith effort. many many many insurance companies (depending on their current financial condition and their temperament) do NOT come to mediations in good faith, but simplyuse mediation as a means of delaying resolution
I agree with the comments of George Waddoups. In addition, I would suggest that the rule be phrased so that, if a party does not come to the mediation with good faith intention to settle the case, that the party could be held responsible for the attorney’s fees and costs incurred by the other party in preparation for the mediation. What happens many times is that the mediation is used for discovery purposes, rather than good faith settlement negotiation.
Who is behind this??!! Why in God’s name would you delete a mandate that someone be prepared for a Mediation and ready to resolve the claim?! Is that not the essence of “good faith”?! Many Mediations are already a joke and waste of time with ins. co.’s not coming to the table prepared and with any authority. We should be going the other way with this rule, not loosening it.
Mere attendance at mediation is NOT sufficient to establish good faith. If the person(s) attending mediation on behalf of a litigant does not have the authority to enter into settlements, or the ability to timely contact someone with authority to obtain authority for a specific proposal, then there can not have been good faith.
While it is laudable to protect the confidential nature of mediation, this rule change goes too far. It has the potential to make court mandated mediation even more impotent than it already is. Worse, it invites abuse of litigants with colorable claims or defenses, but fewer financial resources than their opponents. Mediation without intent to at least consider settlement options that may arise is a very easy method of deliberatly increasing costs for such litigants to unmanageable proportions, allowing the offending party to win by default. This is true regardless of the nature of the litigation.
Without a requirement that all parties at least have the authority and ability to resolve at mediation, court ordered mediation is a court sanctioned abuse.
The rule change proposed for URCADR 0101 will effectively gut the rule and the purpose of a mediation. If the language in (c) is omitted, then the purpose of the mediation is thwarted and the bad faith participant nevertheless gets to claim that the mediation was attended in “good faith.” Subsection (c) would allow attendance at the mediation of parties who are not prepared to discuss and settle the relevant issues of the case. What is the purpose of mediation if the parties may attend without knowledge of the case and the ability to settle the case? And, with the change suggested to subsection (h), even when attending a mediation with no knowledge and no authority to settle, the mediation is considered to have been undertaken in good faith.
These amendments appear to undermine the very purpose of mediation as a viable and valuable settlement tool, and transforms it into a method by which one party can force another party to incur meaningless cost and time for no benefit. This rule change may discriminate against parties with limited or no economic resources and give power and increased advantage to wealthier parties, who may abuse the privelege.
If any changes are made to the mediation rules, the mediation requirements should be strenghtened to require both parties to certify, at the beginning of the mediation, that they have authority from their clients or insurers to negotiate and settle and that they are prepared to discuss the issues of the case.
The suggested changes from the current requirements weaken mediation and undercut its effectiveness and desirability.
The language “and shall have the authority to fully settle all relevant issues in the case” should not be removed. Unfortunately, some parties are only using mediations to obtain free discovery, “size up” the opposing party, or even delay payment of a valid obligation. Such tactics waste valuable resources, and are the antithesis of why ADR has been encouraged by the courts. If anything, the rule should be made much stronger in order to insure that mediation remains an effective tool in settling cases.
I am very concerned about ADR being used as a tool for delay. If mediation is to have any validity, if it is to be worth the delay and the preparation of the lawyers, then authority to settle must be present at the mediation. It is extremely frustrating to prepare for a mediation only to find out that insurance defense authority is limited to some small pre-arranged figure with nobody readily available to feel the pressure to settle. Under these circumstances, the pressure to settle focuses entirely on the plaintff.