What?!? You know – substantive good faith, i.e. “You’re not mediating [read “negotiating”] in good faith”! How do you measure that? It’s much easier to demonstrate procedural good faith or the lack of it as is shown by the Second U.S. Circuit Court of Appeals’ unpublished order in Negron v. Woodhull Hospital, et al., 2006 U.S. App. LEXIS 9004 [2nd Cir. 2006].
After the Hospital voluntarily agreed to mediate with Negron, the district court ordered both parties “to appear and mediate in good faith.” [Notice that’s 2 things for the parties to do – I read it as to appear in good faith {demonstrable} and to mediate in good faith {not demonstrable}]. The district court found the Hospital to have violated this order when the Hospital disobeyed the instructions of the mediator [Hmmm!!!!!] by failing to bring a principal party with settlement authority to the mediation [at the least, don’t the court rules require this?]. The Court of Appeals found that while the Hospital was free to adopt a “no pay” position [see, you don’t even have to make an offer at mediation and that’s substantive], its failure to bring a principal party was a violation of a court order and impaired the usefulness of the mediation conference. Perhaps the instructions of the mediator were for the parties to abide by the court order [a very good move].
To email me, click Perry S. Itkin.
