Many of us have considered a situation where the same person is asked to both mediate and arbitrate a dispute. The conventional wisdom is that arbitration must come first since the mediator could receive confidential communication or information that might be inadmissible at the arbitration hearing or just not offered or revealed by the party in question. The other side is that arbitration is every bit as expensive as a trial, in some cases more so when you add in the administrative fees of some of the organizations facilitating it. Therefore, mediation should come first because it would save the expenses associated with a full-blown arbitration hearing. Furthermore, many mediators, (me included), don’t want to hear confidential information in the private sessions anyway because if… read more →
As a civil district judge, I always figured I had less of a chance of being shot by an angry litigant (in or outside of the courtroom), than did my colleagues hearing family law cases. And I suspect that violence is more likely to occur in family mediations than in any other type of case. But what is a mediator’s responsibility when violence or the threat of it occurs? One option is to end the mediation and send everyone home, but when does blowing off a little steam, (venting as it is called ), become an actual threat to the participants? One could call the police, but timing is everything, you don’t want to call too soon or too late. One thing is for sure, breaking up a fight… read more →
Just returned from my first trip to Panama and what an eye-opener! If you think this is just another banana republic you are sadly mistaken. It boasts a thriving economy, based on the U.S. Dollar, and almost total employment. But the greatest thing was this: I heard more positive comments about the United States and Americans there than I ever hear at home. Self-flagellation is now fashionable in the U.S. We are racists, sexists, misogynists, homophobes, xenophobes, and islamaphobes. We invent a new “phobia” every day with which to tag ourselves. We are militaristic imperialists with a history that embarrasses us. We try to ignore it, re-write it, destroy vestiges of it, keep it from our children, and apologize for it. And pandering politicians have… read more →
Is The Texas Shuffle Subject to The Batson 3-Step? Looking from counsel table at the jury venire recently numbered and seated, you observe a typical cross section of county residents, some with dour faces, but an interesting assortment nonetheless. “May we approach the bench, your honor?” bellows your adversary. Having been so permitted, your adversary now declares: “Your honor, pursuant to Rule 223, of the Texas Rules of Civil Procedure, we demand a shuffle.” If the panel in its current configuration seems acceptable to you, what can you do to avoid this fruit basket turnover? Reading the rule, it seems mandatory and worse yet, only one shuffle can be granted and your adversary just claimed it. Can you successfully oppose it? The answer is maybe,… read more →
IS ARBITRATION BAD FOR BUSINESS? The death of Stare Decisis Within hours after buying those heavy and expensive books, law students are introduced to what is represented as the pillar of our system of justice, stare decisis. We learn that the doctrine of stare decisis is based upon the principle that certainty in law is essential. This idea is so firmly fixed in England that the House of Lords[1] and the Court of Appeal[2] have held that they have no power to reverse themselves on a proposition of law, no matter how erroneous their previous decision may appear to have been. In fact, as law students we are directed to the library where row and after row of books are housed at great expense… read more →
