Minimizing Mediator’s Own Liability

August 25, 2021 – 10:37 am

Should mediators include in their retention agreements a waiver of liability? This would be a clause along the lines of, “The mediator cannot be held liable for any act or omission in connection with this mediation.” A thoughtful article by Bill Quatnam just posted on Mediate. com suggests mediators should think carefully about this. The article, entitled, “Mediator Ethics: Should You Ask for a Waiver of Liability?”, explores the law in several states regarding mediator immunity (it varies), questioning both the enforceability of such clauses as well as whether they’re ethical.

I used to have such a clause in my retention agreement–borrowed from someone, somewhere; it seemed like a good idea at the time. Then I read Jeff Kichhaven’s article in IRMI, “Nix Your Mediator’s Prospective Waiver of Liability,” and was persuaded that this is not good practice for a mediator. Kichhaven suggests that these clauses announce to the world that attorney-mediators “have voluntarily lowered their own ethical standards when they change hats from law practice to mediation practice.”

Michigan does not provide immunity for mediators. It’s unclear whether such a clause would be enforceable in Michigan. The ideal course is for mediators to mediate well so that unhappy parties don’t turn on their mediators, rather than relying on a liability waiver or legal immunity.

By abfifer | Posted in Mediation | Comments Off on Minimizing Mediator’s Own Liability

Sha’Carri Richardson Apology on Live TV

July 7, 2021 – 4:14 pm

The apology from athlete Sha’Carri Richardson on the Today show last week offers a glimpse into how hard it is to give a good live unscripted public apology. Richardson was banned from competing in this year’s Olympics in her signature event, the 100-meter dash, because she used marijuana before the qualifying event in Oregon last month. She explained that, a few days prior to the event, a reporter informed her that her biological mother had just died. It sounds like her relationship with her mother was complicated, and this news was “nerve-shocking.” So she used marijuana, which is legal in Oregon but is against Olympic rules, to cope with her pain.

In an interview on the Today show with Savannah Guthrie on July 2, Richardson apologized:

“I want to take responsibility for my actions. I know what I did. I know what I’m supposed to do. I know what I’m allowed not to do. But I still made that decision. I’m not making an excuse.”

Richardson struggles not to blame the reporter: “Who are you to tell me this news? But he was just doing his job.”

She also struggles not to defend herself: “People don’t understand what it’s like … Well, people do, we all have our different struggles… Who are you – who am I, to tell you how to cope?”

She said, “I apologize,” but it wasn’t clear whether she was apologizing for using marijuana, or for not finding a different way to deal with her pain. She asked her fans not to judge her, reminding them, “I’m human, I’m just like you, I just run a little faster.” She acknowledged that she let down her fans, and promised it won’t happen again – both elements of a good apology.

 

 

By abfifer | Posted in Apologies | Comments Off on Sha’Carri Richardson Apology on Live TV

Court Admits Mistake

May 27, 2021 – 10:15 am

It takes courage to admit one’s error. It takes even more encourage to do so publicly. But a panel of our Michigan Court of Appeals has done that in a well-written opinion issued this week. Judges Gadola, Gleicher and Stephens are to be commended for their honesty, and their example.

The case, Barnowski v Cleary University, concerns a woman who was denied unemployment compensation after losing her job. Her protest of the denial was late, and all the reviewing bodies, including the Court of Appeals, affirmed that she had no good cause for her late protest.

Ms. Barnowski appealed to the Michigan Supreme Court, which remanded her case to the Court of Appeals. This time, the court acknowledged its mistake, entitling a lead paragraph, “Mistakes are Teaching Moments,” with sub-headings including, “Background Facts, Corrected” and “Our Error.” The court even acknowledges that its “confusion” over the two notices Ms. Barnowski received from the Unemployment office, noting, “Our own error in understanding the two notices and the process that generated them demonstrates that Barnowski’s claim has merit.”

It’s healthy to admit one’s mistakes, even for judges. Maybe especially for judges.

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Christian Conciliation Clause Upheld by Federal Court

April 30, 2021 – 11:33 am

Here’s another case where a court enforced the contract clause requiring parties to resolve their disputes in a Christian process rather than in the courts: Pettey v Share, US District Ct, SD-Miss, 10-01-2019.

Mr. Jernigan signed up for Medi-Share, a Christian organization in which members share medical costs, in 2014. Mr. Jernigan evidently later suffered injuries from a car accident. After he died, his Estate Administrator, Jacqueline Jernigan Pettey, sued Medi-Share in Federal Court, seeking reimbursement for Mr. Jernigan’s medical expenses. Medi-Share filed a motion to compel arbitration, which the court granted. The Estate asserted that there was no arbitration agreement. The court ruled that there was.

Medi-Share is a program run by Christian Care Ministry, Inc. (CCM). The Membership Form includes this clause:

2) I agree that in cases where all administrative appeals have been exhausted and after an appeal process, any and all remaining disputes will be settled safely as follows: by biblically-based mediation, not in a secular court. If resolution of the dispute and reconciliation does not result from mediation, the matter shall then be submitted to an independent and objective arbitrator for binding arbitration. I agree that suing fellow Christians, including Christian ministries, is contrary to scripture (1 Cor. 6:1-8); therefore, I will bring no suit, legal claim or demand of any sort against CCM in the civil court system, with the sole exception of enforcing any favorable arbitration award or mediated agreement.

The Court found that this provision in the Membership Form not only contained an arbitration provision, but also bound the Member to the Medi-Share Guidelines, which also contain an arbitration provision:

  1. Biblically-Based Mediation and Arbitration.As Christians, the Members and the staff of Christian Care Ministry believe that the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian community in conformity with the biblical injunctions of 1 Corinthians 6:1-8, Matthew 5:23-24, and Matthew 18:15-20. Therefore, the parties agree that any claim or dispute arising out of, or related to, this agreement or any aspect thereof, including claims under federal, state, local statutory or common law, the law of contract or law of tort, that may remain after a Member has exhausted his appeals provided for in Section XIII. B., including a determination whether this arbitration provision is valid, shall be settled by biblically-based mediation. The mediation shall be conducted in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries (complete text of the rules is available at HisPeace.org), with each party to bear their own costs, attorney’s fees and 50% of the mediator’s fee, and with the mediation filing fee to be borne by CCM. If resolution of the dispute and reconciliation do not result from mediation, the matter shall then be submitted to an independent and objective arbitrator for binding arbitration. The parties agree that the arbitration process will also be conducted in accordance with the Rules of Procedure for Christian Conciliation, with each party to bear their own costs, attorney’s fees, and 50% of the arbitrator’s fee, and with the arbitration filing fee to be borne by CCM. Each party shall agree to the selection of the arbitrator. If there is an impasse in the selection of the arbitrator, the parties agree that the Institute for Christian Conciliation shall choose the arbitrator. The parties agree that these methods of dispute resolution shall be the sole remedy for any controversy or claim arising out of this agreement, and they expressly waive their right to file a lawsuit against one another in any civil court for such disputes, except to enforce a legally binding arbitration decision.

The federal judge got it right. The contract clause is functioning as it’s supposed to: to direct disputes between Christians to be resolved within the church rather than in court. This case helps assure parties that this contract clause is legally-enforceable.

In full disclosure, I serve on the boards of both Peacemaker Ministries and the Institute for Christian Conciliation (they are now two separate entities).

 

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Liberty University Conflict

April 19, 2021 – 6:56 pm

We were sad to see yet another lawsuit between Christians: Liberty University has sued its former president, Jerry Falwell, Jr. After resigning from the presidency last fall, Falwell sued the University for defamation, but he dropped that suit in December; now the University has sued him for breach of contract.

Rather than file these very public lawsuits against one another, these parties could resolve their dispute privately through the Institute for Christian Conciliation. Many Christian organizations have inserted clauses into their contracts — such as employment contracts — requiring that parties resolve any dispute privately through Christian conciliation rather than in the courts. This is not only consistent with Scripture (I Corinthians 6:1-7), it can benefit the parties by keeping the process private and possibly leading to reconciliation. It’s not too late for the parties in this lawsuit to bring their case to the church instead.

By abfifer | Posted in Christian Lawsuits | Comments Off on Liberty University Conflict