Articles Posted in Mediation

Deanne Berrey was working for Curry Ice when she was injured in a car accident caused by Sheri Campbell who only had $100,000 in liability insurance coverage.

Berrey sued Campbell and also collected $103,224 in worker’s compensation benefits. In addition, Berrey claimed underinsured-motorist benefits under a $1 million policy that Travelers Indemnity Co. sold to Curry Ice.

Campbell’s insurer settled with Berrey for $100,000 but paid all of the policy proceeds to Curry Ice because of Curry’s worker’s compensation lien. When the arbitrators considered the underinsured motorist (UIM) claim, it decided that Berrey’s damages totaled $310,000. Travelers claimed that Section D.2.4 of its insurance policy permitted it to reduce the award ($310,000) to $210,000 because Berrey had already technically received $100,000 from Campbell’s insurance policy, which was paid directly to Curry Ice.

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The Illinois Appellate Court affirmed a decision of a Cook County judge barring testimony of the plaintiff, Bettie Payton-White, because she was more than 15 minutes late to a court-mandated arbitration session.

In November 2010, a car crash occurred between the motor vehicle driven by Bettie Payton-White and one driven by the defendant, Anthony Weir.  In August 2011, Payton-White filed a personal injury lawsuit against Weir claiming that the collision was caused by Weir’s negligent driving.  Weir denied that he was negligent, and the court assigned the lawsuit to mandatory arbitration scheduled for 8:30 a.m. on May 29, 2012.

At the arbitration session, neither Payton-White nor her representative was present.  At 8:45 a.m., after allowing a 15-minute grace period, the arbitrator entered a decision in Weir’s favor and awarded $436 in costs to Weir because of Payton-White’s failure to appear. 

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Fong Yang was 16 years old with diagnoses of severe autism and Down syndrome.  Fong had a history of running away from his Fresno school when left unsupervised. 

Because of Fong’s tendency to run off, his teacher told the First Student bus dispatcher that the bus driver should not drop off Fong early at school or allow him to get off the bus after school en route to his home unless he was accompanied by an aide. 

Despite these instructions, Fong’s bus driver let him get off the bus without an aide. Fong ran half a block to an intersection, where he was hit by a car and thrown about 30 feet. Fong suffered a skull fracture, an epidural hematoma and multiple abrasions.  His medical bills totaled $78,500.

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The mediation of cases involves opposing positions. A mediation session begins with a brief opening statement by the mediator laying out for the parties and lawyers that the process that is about to take place will remain confidential.  The mediator in most settings will mention a few exceptions and explain confidentiality when the parties and their representatives meet in caucus, which is with the mediator in private. 

Before the mediation session begins, attorneys would be wise to inform their clients exactly what the process is all about and the distinctions between the terms — confidentiality and privilege. 

At the outset, and well before the day of mediation, the parties would be asked to review and sign the mediation agreement. Most mediation agreements contain language of confidentiality and references to privilege in outlining the mediation process.

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Lawyers are often lured into the prospect of settlement by casually agreeing to sign off on mediation agreements proposed by either the mediator or the opposite counsel. The obvious purpose of mediation is to resolve disputes that would be costly with an unpredictable result. Settlements are good for both parties in that they save time and money.  Litigation alternatives are expensive and results are unknown.

However, the importance of mediation agreements stands out in the process. State law in Illinois governs some of the inner workings of mediations. The law is found under 710 ILCS 35/, which is the Illinois Uniform Mediation Act (IUMA).

One of the advantages of mediation is confidentiality. The confidentiality aspect of mediation is that a caucus with the just mediator and a party and counsel is a conference in confidence. This condition should be set out in the agreement.  The importance of the confidentiality of mediation is that settlement communications are inadmissible, both in federal and state courts. But there are distinct differences between confidentiality and privilege should the case not settle. 

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