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The Earth reached an historic milestone at year-end 2023 which should have been met with a woeful outcry but instead was greeted with a deafening silence.

The Earth reached an historic milestone at year-end 2023 which should have been met with a woeful outcry but instead was greeted with a deafening silence.

The world population of 7.9 billion slipped over the 8 billion mark. Worse, projections are that we will hit 9.1 billion by 2050, just 25 years away. This addition of another 1.1 billion people will require huge supplies of clean water, land, shelter, food, and energy, and it will further invade wildlife habitats.

Not only was this growth greeted with a yawn, but those who reported on the growth discussed it in entirely economic terms. Hardly a word was said about what it meant in terms of our environmental future.

Just one “minor” example: The New York Times in April 2023, reported that India will soon pass China in population, writing: “With size -- a population that now exceeds 1.4 billion -- comes geopolitical, economic and cultural power…And with growth comes the prospect of a ‘demographic dividend’.’’

The Times devoted three pages analyzing this development. There was not one word on what this meant to the environment.

Now, you don’t have to be a climate change expert, scientist or scholar to know that growth requires resources. We will now need more land for shelter, food, water, and energy -- resources which are already at a minimum. We are already using resources faster than the Earth can replenish them.

The dire warnings regarding population growth are not new; many experts in the past have tried to get the attention of the world on the threat that population growth poses to our existence.

For instance, the United Nations has estimated the planet will need twice as much food by 2050 than we are producing now. Its Food and Agriculture Organization (FAO) has reported we will need to increase world food production by 60 to 70 percent to feed 9 billion people.

In 2006, when former Vice President Al Gore released his award-winning book and movie, “An Inconvenient Truth,” which warned about the environmental challenges we face, the world population stood at 6.6 billion. We have witnessed an increase of 1.4 billion people or a 21.2 percent jump in just 19 years.

In 1968, Paul R. Ehrlich, and his wife, Anne Howland Ehrlich, two Stanford University researchers, warned in their book, “The Population Bomb,” that the Earth cannot sustain the growth it was experiencing.
The population at the time: a mere 3.5 billion.

In 2016, Edward Osborne Wilson, a biologist known as the Darwin of the 21st century who won two Pulitzer Prizes, warned in his book, “Half-Earth: Our Planet’s Fight for Life,” that to survive, mankind needs to reserve half the Earth for wildlife. He also warned in his studies that the Earth has only the capacity to support 9 to 10 billion people.

In the early 1970s, a small group of scientists created a computer model called World3 which analyzed population growth.  Its findings were published in a book, “The Limits to Growth.” The conclusion?

“…humanity was despoiling nature so fast that civilizational collapse would occur sometime within the next one hundred years.”

To give these abstract forecasts some meaning let’s look at Kenya. In 1971, it had a population of 11 million which grew to 53.7 million by 2021. In 1971, the country had 160,000 elephants and 20,000 black rhinos. By 2021, those numbers dropped to 35,000 elephants and 1,000 black rhinos and only two white rhinos (both female.) The same scenario is playing out throughout the world.  (I chose Kenya as an example because I visited the country on a photo safari in 1996. It was an experience of a lifetime.)

Let’s focus on a place closer to home: Oakland County. Every time friends would point to a beautiful new subdivision, I would reply, “that’s pollution” because it took habitat from insects, bees, deer, coyotes, skunks, racoons, etc., all essential to the “circle of life.” Of course, the growth also created problems of water supply and pollution in the county’s many lakes.

When I was in my teens in the 1950s (yes, I’m old), much of where I now live, West Bloomfield, was farmland. I paid a farmer a couple of bucks to go horseback riding. It was a win-win for the farmer. He earned a few dollars and I exercised his horses. Now, when I sit in a traffic jam at Orchard Lake Road and Maple, I wish I was back in the saddle again.  

I doubt there is much land left on which to expand in my suburb. Space is, after all, finite.

The problem: by the time the world understands the meaning of the emergency flashes on the radar and tries to respond appropriately, it will probably be too late.  

The NATO Review, reported under the headline, “Population Growth, the Defining Challenge of the 21st Century:”

“Without taking action now, billions of people across the world will face thirst, hunger, slum conditions and conflict in response to droughts, food shortages, urban squalor, migration and ever depleting natural resources, while capacity tries to catch up with demand.”

The Population Center wrote:

“Slowing down, stopping and eventually reversing human population growth ---these are ethical imperatives that will help improve the chances for future generations establishing living scenarios with the planet. The most ethical gift we can give people and creatures of the last 21st century and early 22nd century is a chance.”

Regrettably, we are not living up to our moral and ethical obligation.

(Editor’s Note: This is the second in a series of five columns on the environment.)

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Berl Falbaum is a political author and journalist and the author of several books.

The Federal Arbitration Act (FAA), enacted on February 12, 1925, has been a cornerstone of American dispute resolution for a century. It transformed arbitration from a seldom-used alternative into a central feature of the U.S. legal system.

Introduction

The Federal Arbitration Act (FAA), enacted on February 12, 1925, has been a cornerstone of American dispute resolution for a century. It transformed arbitration from a seldom-used alternative into a central feature of the U.S. legal system. Over the past 100 years, the FAA has evolved through legislative amendments, judicial interpretations, and policy shifts, establishing arbitration as a preferred method for resolving disputes in commercial, labor, and consumer contexts, as evidenced by the widespread inclusion of arbitration clauses in contracts across these sectors. This article explores the origins of the FAA, its legislative history, and recent U.S. Supreme Court cases that may shape its future.

Historical Origins of the FAA

A. Pre-FAA: Hostility Toward Arbitration in Early America

Before the FAA's enactment, arbitration faced significant resistance in the United States. Influenced by English common law, the U.S. legal system was often hostile toward arbitration agreements, viewing them as attempts to bypass judicial authority. Courts frequently refused to enforce arbitration clauses, compelling parties to litigate despite prior agreements to arbitrate disputes.

This reluctance was rooted in concerns that arbitration lacked procedural safeguards and the belief that private dispute resolution should not supplant formal judicial processes. Many state laws rendered arbitration agreements unenforceable, making arbitration an impractical alternative to litigation.

B. The Need for Reform: Rise of Commercial Arbitration

In the early 20th century, the rapid expansion of commerce and industry in the U.S. led to increased litigation, congesting court dockets and creating inefficiencies in contract enforcement. Business leaders and trade organizations advocated for arbitration reform, viewing it as a more efficient and cost-effective method for resolving commercial disputes.

The American Bar Association (ABA) and the New York Chamber of Commerce spearheaded efforts for federal legislation to ensure the enforceability of arbitration agreements. These efforts culminated in the drafting of the United States Arbitration Act, later known as the Federal Arbitration Act.

Passage of the Federal Arbitration Act

A. Congressional Sponsors and Presidential Signing

The Federal Arbitration Act was enacted on February 12, 1925, and became effective on January 1, 1926. It was introduced by Senator Charles L. Bernheimer, who was also a dry goods merchant in Manhattan, and supported by members of Congress who viewed arbitration as essential for American commerce. President Calvin Coolidge signed the Act into law, marking a significant shift in the legal landscape regarding arbitration agreements. The FAA aimed to:

1. Make arbitration agreements legally enforceable, preventing courts from arbitrarily invalidating them.

2. Reduce judicial hostility toward arbitration.

3. Promote efficiency and finality in dispute resolution by diverting disputes from congested courts.

Initially, the FAA applied primarily to maritime and commercial contracts, leaving employment and consumer arbitration largely unregulated at the time. This changed gradually over the decades, largely due to judicial interpretation rather than legislative amendments. The expansion of the FAA’s reach, particularly into employment contracts, occurred through a series of Supreme Court decisions that broadened its scope beyond its original intent. Examples include:

1.    Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20 (1991) – Employment Arbitration Expansion. In Gilmer the Supreme Court ruled that employment arbitration agreements were enforceable under the FAA unless Congress had explicitly stated otherwise. This decision marked a significant shift in how the FAA applied to workers, effectively allowing employers to compel arbitration of employment disputes. The ruling encouraged employers across industries to adopt mandatory arbitration clauses in employment contracts.

2.    Circuit City Stores v. Adams, 532 U.S. 105 (2001) – Narrowing the FAA's Employment Exemption. Held that the FAA contains a transportation worker exemption in 9 U.S.C. § 1, excluding “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

3.    AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)– Consumer Arbitration Expansion. In AT&T Mobility the Supreme Court held that the FAA preempted state laws that prohibited mandatory arbitration clauses in consumer contracts. This ruling overturned state laws that had attempted to restrict forced arbitration, leading to widespread enforcement of arbitration agreements in consumer contracts. After this case, businesses increasingly included class action waivers in arbitration agreements, limiting consumers' ability to bring collective lawsuits.

4. Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018)– Class Action Waivers Upheld. The Supreme Court ruled that employers could enforce arbitration clauses that require employees to waive their right to collective or class action lawsuits. This decision further strengthened employer-controlled arbitration, limiting workers' ability to pursue legal claims collectively.

Legislative inaction also played a key role in the expansion of arbitration, as Congress has not amended the FAA to limit its scope, effectively allowing the courts to determine its application. Additionally, pro-business policy shifts contributed to this expansion, as arbitration became increasingly favored by businesses due to its cost-effectiveness and efficiency compared to litigation. Finally, preemption of state laws further solidified arbitration’s dominance, with the Supreme Court consistently striking down state attempts to restrict arbitration agreements in employment and consumer contracts.

B.    Worker Exemptions Under the FAA

Certain classifications of workers are exempt from the FAA, despite its broad applicability to most private-sector employees. Among these exemptions, transportation workers, seamen, federal government employees, and independent contractors in the transportation industry are notably excluded from FAA provisions due to industry-specific regulations and legal precedents. These exemptions highlight a congressional intent to exclude certain workers reach of the FAA due to the presence of other statutory frameworks that govern their labor rights, such as the Railway Labor Act (RLA) (railroad and airline employees), Civil Service Reform Act (CSRA)(federal employees), and 9 U.S.C. § 1(seamen and maritime workers).

C. Restoring Choice: The End of Forced Arbitration in Sexual Misconduct Cases

On March 3, 2022, President Joseph Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFASHA). This landmark legislation amended the FAA rendering pre-dispute arbitration agreements unenforceable for claims involving sexual assault or sexual harassment. The Act empowers survivors to choose between pursuing their claims in court or through arbitration, rather than being compelled into private arbitration proceedings. Notably, the law applies to any dispute or claim that arises on or after its enactment date, regardless of when the underlying conduct occurred. This ensures that individuals who experience such misconduct have the autonomy to decide the forum in which to seek justice.

Recent U.S. Supreme Court Cases Impacting the FAA

• Morgan v. Sundance, Inc., 596 U.S. 411(2022): Clarified that a party does not have to prove prejudice when arguing that another party has waived their right to arbitration.

• Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022): The Supreme Court ruled that California’s Private Attorneys General Act (PAGA) claims can be subject to arbitration, limiting employees’ ability to
bring representative labor law claims.

• Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023): Held that when a federal district court denies a motion to compel arbitration, the losing party has a statutory right to an interlocutory appeal. 9 U.S.C.S. § 16(a).
The district court must stay its pre-trial and trial proceedings while an interlocutory appeal is ongoing.

Then in 2024 alone, the Supreme Court issued several significant decisions regarding arbitration:

• Smith v. Spizzirri, 601 U.S. 472 (2024): The Court unanimously held that under Section 3 of the FAA, federal courts are required to stay proceedings when a dispute is referred to arbitration, rather than dismissing the case. This decision emphasizes the mandatory nature of staying proceedings pending arbitration, ensuring that parties can return to court, if necessary, after arbitration concludes.

• Coinbase, Inc. v. Suski, 602 U.S. 143 (2024): The Court stressed the contractual foundation of arbitration agreements, ruling that disputes over the applicability of arbitration clauses should be resolved based on traditional contract principles. The decision underscores that parties are bound by the terms to which they have mutually agreed, reinforcing the importance of clear and explicit arbitration provisions in contracts. The Court also ruled that when parties have agreed to two contracts, one that sends arbitrability disputes to arbitration, and the other either explicitly or implicitly sends arbitrability disputes to the courts, a court must decide which contract governs.

• Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024): In a unanimous decision, the Court clarified that transportation workers do not need to be employed within the transportation industry to qualify for the FAA's exemption. This ruling broadens the scope of workers who can seek exemption from mandatory arbitration under the FAA, focusing on the nature of the work performed rather than the employer's industry classification.

Conclusion

For the last century, the Federal Arbitration Act has shaped the way Americans resolve disputes. Initially enacted to promote efficiency and fairness in commercial transactions, the FAA has since expanded to nearly all areas of law, including employment, consumer rights, and international commerce. As arbitration continues to evolve, debates over its fairness and accessibility remain at the forefront. The next century will determine whether arbitration remains dominant or faces greater regulation. As we mark its 100th anniversary, the FAA’s legacy remains unparalleled in American law.

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Lisa W. Timmons, Esq., has over 27 years of experience in alternative dispute resolution (ADR). She is the chair of the ADR Section of the Michigan State Bar, and the Executive Director of the Mediation Tribunal Association. Timmons serves as an arbitrator, mediator, and case evaluator of labor, employment, and commercial cases with the American Arbitration Association (AAA), FMCS, USPS, MERC, FINRA, and several other public and private arbitration and mediation panels.

I thought long and hard on how to start this series to get the attention of readers.  And I don’t mean just to “tickle” their interest in the subject so they read it but with the hope they understand the ominous message about the future we face.

(EDITOR’S NOTE:  With this column, we begin to publish a five-part series on the environment written by our contributing political columnist Berl Falbaum, a veteran journalist and author of 12 books.  The columns will appear over the next few weeks.  Berl has studied the issue for the last two decades, including writing a book, “Code Red! Code! Red!  How Destruction of the Environment Poses Lethal Threat to Life on Earth.” We welcome your comments.)

I thought long and hard on how to start this series to get the attention of readers.  And I don’t mean just to “tickle” their interest in the subject so they read it but with the hope they understand the ominous message about the future we face.

Full disclosure: I am a journalist, not a scientist. I did not conduct any independent research. My reporting comes from researching the research done by world experts.

In these articles, I did not attribute every statistic, conclusion, prediction or finding because I thought that would be awkward and annoying to readers.  But it all comes from authoritative sources. In my book, I list more than 100 references.

This series is not recreational reading. There is no good news to report.

With that warning, here goes.

David Wallace-Wells, who has written extensively on the environment, did it by starting his book with the following eight words: “It is worse, much worse, than you think.”

I will try it with the following: The Earth is becoming uninhabitable for humans much faster than many experts predicted. And it may well be too late to stop the environmental deterioration on numerous fronts, not just global warming that receives most of the attention.

Scientists are warning we are on the cusp of the Earth experiencing its sixth extinction, the first one caused by humans -- you and me.

The last extinction, the fifth, happened 65 million years ago when an asteroid crashed into the Earth, wiping out the dinosaurs.

There is not an inch of land, or a body of water on the planet, no matter how small or isolated, which is not being impacted by environmental issues. Yes, including your beautiful gated subdivision.

The following comes from a story, published by The Guardian, on a report written by renowned environmental experts:

“Many of Earth’s ‘vital signs’ have hit record extremes, indicating that the future of humanity hangs in the balance….

“More and more scientists are now looking into the possibility of societal collapse… [The report] assessed 35 vital signs in 2023 and found that 25 were worse than ever recorded, including carbon dioxide levels and human population. This indicates a ‘critical and unpredictable new phase of the climate crisis.’”

Consider the following: Patagonia, which sits on the western side of South America, is one of the least populated regions on the planet. With an area of one million square kilometers, Patagonia is larger than 80 percent of countries on Earth. It has less than five percent of the population of both Chile and Argentina, making it a sparsely populated region.

Yet, it is being severely impacted by polluted air and water carried by currents of both and it is inundated with microplastics.

Or consider this: A scientist testing a submarine took it to the deepest depths of the oceans, some 36,000 feet. What did he find? Plastic garbage bags and candy wrappers.

Even the shape of the Earth is being affected. You read that correctly.

Scientists at ETH Zurich in Switzerland, published a report in the National Academy of Sciences of the U.S. that the moon’s gravitational pull has steadily lengthened days, but polar melting is redistributing water closer to the equator.

This makes the Earth more oblate -- or fatter -- slowing the rotation of the planet and lengthening the day faster than the lunar effect alone.  

While we should be addressing environmental dangers, the deadly threats have been met with apathy and/or denial. We should be discussing the environment as we did COVID at its peak. Instead, raging fires, floods, melting glaciers, soaring temperatures, plastic contamination, air and water pollution, nuclear waste disposal, deforestation --- and so much more -- are met with a sentence or two in news reports. Like in, “By the way…”

Jonathan Watts, The Guardian’s global environment editor, wrote: “…weather catastrophes have become so commonplace that they risk being normalized.  Instead of outrage and determination to reduce the dangers, there is a sense of complacency: these things happen. Someone else is responsible. Somebody else will fix it.”

The Guardian, incidentally, publishes four stories on the environment every day and they contain mostly negative news.

In one opinion piece The Nation wrote during the Los Angeles fire calamity:

“These mega-fires have called forth a mega-failure by much of the news media. A review of coverage to date shows that most journalism is still not accurately representing how the climate crisis is upending our civilization by driving increasingly frequent and severe extreme weather.

“Too much of the [Los Angeles fire] coverage has simply ignored the climate crisis altogether, an inexcusable failure when the scientific link between such mega-fires and a hotter, dryer planet is unequivocal.”

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Berl Falbaum is a political author and journalist and the author of several books.

A new Michigan Supreme Court decision means that controversial pandemic-era emergency policies may never face a proper judicial review, and that government officials who issued them will escape accountability.

A new Michigan Supreme Court decision means that controversial pandemic-era emergency policies may never face a proper judicial review, and that government officials who issued them will escape accountability.

The court on Nov. 1 dismissed two important cases about the government’s use of emergency powers in response to Covid-19. The majority on the court declared these cases moot because the mandates in question — making children wear masks at school and forcing restaurants to close — are no longer in effect.

The rationale for dismissing these cases is weak. The court notes in its order that a case with “public significance that is likely to recur” should not be considered moot. It’s hard to imagine a public policy more significant to the public than these pandemic mandates. Many of them directly affected the daily lives of the entire state population.

But the Michigan Supreme Court thinks these orders are not likely to be issued again. Here’s hoping they’re correct, but predicting the future is hard. It is important to remember that there is nothing preventing government officials, if they wanted to, from issuing these exact orders tomorrow. There are virtually no restrictions in state law on when these emergency powers may be used.

State law says that the state health director can grant herself unilateral authority to issue mandates anytime she “determines that control of an epidemic is necessary to protect the public health.” The statute does not define these terms or provide any other guidance on when this authority may be used. All the health director has to do to get these powers is declare there’s an epidemic that needs controlling. It was with this authority during Covid that Health and Human Services Director Elizabeth Hertel forced toddlers to wear masks, subjected teenage athletes to weekly testing, shuttered entire industries and restricted whom you could invite into your own home.

The ease with which these powers can be invoked makes them likely to occur again. It just takes the stroke of a pen. The majority on the court did not explain how the justices know that another pandemic will not emerge or that the state director will not issue similar orders to the ones in question.

Granting unchecked power to an unelected bureaucrat to issue orders that could impact the daily lives of 10 million people violates the separation of powers principle in the Michigan Constitution. The Legislature cannot hand over its lawmaking authority to to the executive branch carte blanche. The Michigan Supreme Court’s decision to dismiss these cases sweeps this massive question under the rug.

Another major problem that will go unaddressed is the duration of these emergency powers. The statute that permits the governor to take emergency actions limits her power to 28 days. After that, the Legislature must get involved. This is what a government of checks and balances requires. There is no limit in law, however, to the health director’s emergency powers. She can issue orders unilaterally for as long as she wants, since she alone determines when they are necessary. Legislators — the people voters elected to represent their interests — can do nothing about it.

The Michigan Supreme Court’s decision to brush aside these important questions means the state government may never need to defend its unprecedented restriction of some our basic rights during the Covid pandemic. Convincing the court that the issue is moot — the only argument the state has had to make — allows government officials to evade legal scrutiny of their actions.

The Supreme Court’s dismissal of these cases is all the more disappointing because the state’s response to Covid-19 was a failure on many levels. State officials threw out the existing plans for responding to a pandemic and just made up their rules on the fly. They promised to “eradicate” Covid and “beat the damn virus.” They bribed us with our own freedom in an attempt to get 70% of the population to take the vaccine.

But the disease remains. And most people stopped listening to public health officials about the vaccine: Only 7% of Michigan residents are currently up-todate with the latest Covid shot.

The failure of the state’s response is further evidenced by the fact that the government officials who issued the Covid mandates almost never speak of them today. If the lockdown and pandemic edicts were effective and popular,  politicians would remind voters often of how they saved the day and conquered Covid. Instead, we have silence.

The court’s decision announces to public officials that they will not be held accountable for actions taken under a declared emergency. Lawsuits challenging their emergency mandates can be slowwalked until they become moot.
There are dozens of emergency powers in Michigan law, so government officials have lots to choose from if they want to avoid accountability for policies they fear will be unpopular or legally dubious. Unchecked government power like this is always a recipe for disaster.
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Michael Van Beek is director of research for the Mackinac Center for Public Policy. He joined the Mackinac Center in June 2009 as director of education policy.

Ex Parte communications are commonplace and completely ethical in the mediation process.  Indeed, where “shuttle diplomacy” is the process model all communication is ex parte.    In this paper,  I recommend using ex parte communication with counsel prior to the date of mediation but after receipt of written submissions.

Sheldon J. Stark
Mediator and Arbitrator (Retired)

Introduction

Ex Parte communications are commonplace and completely ethical in the mediation process.  Indeed, where “shuttle diplomacy” is the process model all communication is ex parte.    In this paper,  I recommend using ex parte communication with counsel prior to the date of mediation but after receipt of written submissions.  The call has multiple goals and objectives including:

• Cementing a prior relationship with counsel or building a relationship where none previously existed.

• Gathering important information not included in written submissions.

• Providing advocates an opportunity to speak candidly outside the presence of their clients.

• Demonstrating the mediator’s commitment to helping advocates achieve their client’s goals.

• Planting seeds for useful techniques to be used once the mediation begins.

• Reminding counsel to sign the Agreement to Mediate, have their clients do so, and return it to the mediator.  

Establishing Confidentiality

The call should start with an explanation that this is a standard part of the mediator’s preparation; all counsel will be contacted; and it is traditional/customary to start with plaintiff counsel, unless time does not allow waiting until plaintiff counsel is available.

To encourage candor the mediator should first establish confidentiality ground rules for the conversation.  If there is anything counsel wouldn’t want disclosed to the other side, they need only say so and the mediator will keep it under wraps.  My practice was to place responsibility on counsel.  Unless they expressly designated something confidential, I explain, I would consider it fair to use in the other room especially if I thought it might be helpful.  

I would promise to provide an opportunity to place any other information disclosed in the confidential category before hanging up.  Finally, if it later appeared disclosure might be helpful, I would explain my thinking; then live with whatever decision they made.

Gathering Information Through Questions

Once ground rules for confidentiality are established, I recommend soliciting suggestions from counsel for techniques or an approach the mediator might employ.  Many advocates offer mediation services and could provide thoughtful insight.  “You’ve been living with the dispute for some time,” I might begin.  “Do you have any ideas for me?  If you were mediating this case, what approach or techniques would you employ?”  Most often they do not have suggestions.  Advocates appreciate the question, and sometimes have helpful ideas.

My second topic seeks insight into the parties.  “Tell me about your client,” I always asked.  “Is there anything I can do to help you with your client?  Is there a message you’ve been reluctant to deliver, for example, that I could do the heavy lifting on?  Is there a message you have delivered but which could use some reinforcement from me?”  Lawyers are often candid and frequently provided useful insight to guide management of the process.

I next asked about non-economic needs, demands or terms.  “Have you discussed with your client their non-economic objectives?”  Often, the answer is no.  This call, therefore, gets that conversation started between counsel and party.  This is important, because once a dollar negotiation starts, non-economic terms can become stumbling blocks to resolution.  It’s generally best, therefore, to get these out on the table at the very beginning.  In an employment dispute, for example, is plaintiff seeking a letter of recommendation?  Does a party believe liquidated damages are needed to discourage disclosure of confidential terms?  It is often easier to reach agreement on non-economic terms before addressing money.

If the dispute does not settle, I wanted to know counsel’s biggest concern.  What are they most worried about?  “What might keep you up at night?  Are you worried about disclosure of proprietary business information, for example?  Or public exposure of private or embarrassing internal conflicts or problems?  Do you worry about dragging an important customer or client into the dispute?”  Answers to these questions often bring out important risk topics to consider at the mediation table.

How are they getting along with the other side?  Do the lawyers trust one another?  Have personality conflicts aggravated the dispute or made settlement more difficult?  What’s driving any hostility?  Issues lurking beneath the surface – lawyers rubbing each other the wrong way, for example – can threaten progress if not identified early.  And related: are there any other non-legal issues that might impact resolving this dispute the mediator should know about?

What do the advocates consider the biggest impediments to resolution?  Do they have suggestions for neutralizing or ameliorating them, finessing or otherwise getting around them?   

Whose turn is it to make the first move at the mediation table?  I always ask whether the parties are willing to disclose the status of their negotiations during the joint pre-mediation conference call.  The reason to ask with all lawyers present is that the parties do not agree in at least half the cases!  Most lawyers believe that where there have been no pre-mediation negotiations, the plaintiff should make the first offer.  Plaintiff brought the case and presumably knows what the dispute is worth. 
Accordingly, plaintiff should start.  Lawyers also believe that if one side made the last offer, the offeree should put the first number out at mediation.  On occasion, a plaintiff lawyer may try to shift the first number burden onto the defense.  I try to discourage that with the following points:

• Plaintiff going first is the natural order of things.

• If plaintiff tries forcing defendant to start, plaintiff’s counsel risks losing respect and credibility.  And, regrettably, so does a mediator who goes along with the request.

• Defendants might disengage and leave the table.

• No plaintiff attorney in my experience has ever been happy with an opening offer where defendant was forced to go first.  

• Finally, “anchoring” research suggests that the final settlement number is generally closer to the first number offered in a negotiation than to the second.  In other words, plaintiffs get better results when they go first.  

As noted above, during the joint pre-mediation conference call I use for process design and deadline setting, I encourage defense counsel to share boilerplate Final Settlement and Release of all Claims language with plaintiff’s counsel.  Most promise to do so.  If the document is shared and reviewed in advance, hours of negotiations over language after agreement is reached on dollars and terms can be avoided.  The ex parte call provides an opportunity to remind counsel to make it happen.  The hope is that exchanging final language gets counsel talking, sets the stage for productive negotiation and gives the parties a sense of optimism about a positive outcome.  “Does plaintiff counsel have any problems with the language?  Is it acceptable as written? 
What changes, if any, are sought?”  

I also recommend soliciting potential risk questions to ask in the other room.  “You know the case better than I do.  What do you consider the biggest risks the other side faces?  What questions would you be asking if you were me?”  If counsel is candid and willing to engage on this, I might also ask for a list of the toughest risk questions to ask their own client.  

Does counsel need any additional information from the other side before they can mediate effectively?  What do they need?  Can I help obtain it for them on short notice?  What’s been the hold up?  If important discovery or document exchange is late, I did my best to obtain it for them.

Who needs to be present for each side for an agreement to be reached at the table? In my experience, when real decision-makers are not at the table, it is easy for them to reject final offers by telephone.  They were not present to hear the risk questions, observe the reactions, or participate in the discussions that are part of the softening up process.  Bringing someone up to speed can be challenging, especially if resistant to what they are hearing.  

Is the defendant collectible?  If defendant is claiming poverty or inability to pay a settlement, what evidence would be needed to accept the assertion as credible?  For the party claiming poverty, I encouraged production of their books and records to demonstrate the credibility of their claim.  Refusal to produce them adds fuels a plaintiff’s belief that the assertion of poverty is a pretense.  I could often rely on experienced defense counsel to support the effort.

Are there any facts which the other side doesn’t have that might cause them to change their evaluation of the claim?  What do you suppose those facts are and why don’t they have them?

How much has been incurred in attorney fees and costs to date?  If counsel doesn’t have that information: “Are you willing and able to pull it together by the morning of mediation?” There are two reasons for this: First, overall costs and fees are an important consideration in determining whether to settle and on what terms.  Second, a prevailing party may be entitled to recover fees and costs as in employment discrimination disputes.  Precise amounts expended are very relevant to valuation.

Has counsel prepared a litigation budget if the matter doesn’t resolve at mediation?  How much more is the litigation expected to cost?  Has the client been informed?  If the parties have not prepared a litigation budget – or it has been a long time since a budget was prepared: “Will you prepare a rough budget by the time of mediation so we can discuss potential fees and costs compared with the other side’s last and best offer?”  I encourage them to include the cost of experts, if any; the preparation, drafting and argument of dispositive motions they might be considering; and how much additional discovery might be needed.

Has counsel analyzed the underlying needs and interests of their own client?  In other words, what is driving this dispute?  Are there external factors impacting motivation to settle?  What are they?  What about opposing party?  What are their needs and interests?  Does identification of needs and interests inform possible terms to include in their proposals to settle?  

Are there any safety or danger issues we should know about?  PPOs, threats, prior lawsuits, history of violent or threatening actions?

If mediating via Zoom, will counsel and client be in the same location?  This information will help me recognize who is seeking admission to a Zoom session when parties seek to join the meeting.

Finally, are there any other issues they think need discussion?

Before hanging up, I clarified what we marked as confidential, if anything, and asked whether in retrospect anything else we discussed should be added to the protected list.  “Here’s what I marked as confidential.  Is there anything else we discussed you wouldn’t want me to disclose?”

Conclusion

The approach suggested here is designed to strengthen the mediator’s relationship with counsel, and gain additional trust and confidence in the mediator and the mediator’s process.  At the conclusion of the call, advocates will have observed the mediator’s thorough preparation which should enhance confidence and trust.  The questions help counsel recognize that the mediator’s goal is to help find a satisfactory resolution; and that the mediator is fair minded and capable of managing a safe, productive and useful process.  By employing this ex parte tool as recommended, the mediator builds credibility and capital to overcome obstacles, build trust, improve communication and understanding and establish the foundation upon which the parties can reach a resolution of their dispute.  

Check List

1. Explain confidentiality.  

2. Do you have any ideas or suggestions for what a mediator might do to assist the parties  in reaching an agreement?

3. Tell me about your client.  How can I help you with your client?  

4. Does your client have any non-economic needs or/ demands/terms?

5. If the case does NOT settle, what is your biggest fear/concern?

6. How are you getting along with the other side?

7. What do you consider the biggest impediments to settlement?  Why has this case not settled?

8. What is the status of negotiations: whose turn is it to make the next move?

9. a. Was a proposed draft settlement agreement exchanged in advance?

b. Is it acceptable?  What changes would you like to see, if any?

c. What are your thoughts on what a path to resolution might look like?  

10. Do you have suggestions for questions I can ask in the other room that will help the other side appreciate the risks they face?  How about such questions for YOUR client?

11. What can you tell me about the bargaining dynamics and personalities in the case? What non-legal issue should be on my radar screen?

12. Do you need any additional information from the other side in order to mediate effectively?  What’s missing and why do you not have it yet?

13. Who needs to be present for the other side?  Is there any problem with who will be there for YOUR side?

14. Have you done an asset check to determine whether the defendant is collectible?  

15. Are there facts the other side might not have which could cause them to change their  evaluation of the claim?

16. Litigation budget - done one; provided it to client?  What are your costs to date?  How much are the attorney fees to date?  

17. Have you looked at the underlying needs and interests of your client?  What are they?  What do you think are the underlying needs and interests of the other side?  What kinds of terms might be proposed to meet those needs and interests?  

18. Are there safety or danger issues  - PPOs, prior lawsuits, etc.?

19. If the mediation is via Zoom, will your client be at your office or will they join the meeting from their own location?

20. Are there any other issues you would like to discuss before we ring off?

Finally, we have a nominee for the incoming Trump administration that we should welcome back with open arms.

Finally, we have a nominee for the incoming Trump administration that we should welcome back with open arms.

You may remember him: Herschel Walker who, in 2022, ran for the U.S. Senate in Georgia, losing by only a little less than 3 percent.

What is so special about Walker as opposed to other nominees Donald Trump has recommended?  Walker, Trump’s candidate, provided us with much-needed relief from dark, oppressive Trumpian politics.  

Alas, when he lost, I shed a tear; no one gave us so much material for irreverent satire. He was our Falstaff, who in three of Shakespeare’s plays, gave us pause from heartfelt tragedies with his comic demeanor, carousing with drunks and prostitutes, and showing nothing but contempt for those around him.

Following Walker’s loss, I said we were gonna miss the guy.

While I seriously doubt that Trump thought of Falstaff when he recently nominated Walker to be nothing less than ambassador to the Bahamas, I felt like writing a thank you note to the president-elect.

A confession first: I have no idea whatsoever why we need an ambassador in the Bahamas. What in the world will Walker do? I suspect he has no idea either.  

I googled “foreign relations between the U.S. and the Bahamas” and learned that all was pretty hunky-dory. Everything is copasetic. According to several intelligence agencies we contacted, the Bahamas have no plans to invade the continental U.S. We were assured that the ships in its “navy,” when not involved in ultra-secret military operations, are rented to tourists for fishing and waterskiing. Great source of needed revenue. Moreover, the U.S. is happy to have the Bahamas serve as a getaway for snowbirds in the winters.

As I cogitated over this appointment, I remembered that in the Senate campaign while explaining his environmental policies, Walker told us he did not believe we need any more trees. Specifically, he asked: “Don’t we have enough trees [already] around here?”

That, at least, gives us a partial answer for the appointment: there are no trees on the beaches in the Bahamas. Not a one. Just miles and miles of treeless white sand.

He also articulated unique insights on why we are suffering from air pollution. Walker explained that we have so much bad air because our good air “decided” -- on its own -- to move to China. To make room for good air, China sent us its bad air.  

I discounted that at the time, but now I hope Trump gives him at least one assignment: Have the Bahamas send warm air -- of course, clean warm air -- to Michigan between November and the end of April. They will not have to send us all their warm air; just enough so we can reach, let’s say, 60 degrees. The Bahamians have more than enough warm air to stay comfortable.

We will promise not to send our bad cold air their way. The two Michigan U.S. senators will sign a pact promising not to ship cold dirty air south and east.

(In our research for this column, we learned that Walker won his nomination after suggesting to Trump that he reduces proposed tariffs on China if it returns some of our healthy air.)

Overall, Walker insisted the U.S. is not ready for what is called a green agenda, stating:

“If we were ready for the green agenda, I’d raise my hand right now. But we’re not ready right now. So don’t let them fool you like this is a new agenda. This is not a new agenda. We’re not prepared. We’re not ready right now. What we need to do is keep having those gas-guzzling cars, ’cause we got the good emissions under those cars. We’re doing the best thing that we can.”

We will also promise not to send the “good emissions” from gas-guzzling cars.

Walker also challenged the theory of evolution and posed a question for which even Darwin would not have had a response. He asked:

“At one time, science said man came from apes. Did it not? If that is true, why are there still apes? Think about it.”

After thinking about it, I believe he may be right: Evolution appears complete in the Bahamas. There are no apes in the island country. There are some monkeys but they are not indigenous to the Bahamas.

It’s worth noting that 1.7 million Georgians voted for Walker’s environmental and evolution beliefs. They must have been impressed with his patriotism because, displaying his national pride, he referred to America “as the greatest country in the United States.”

Walkerites also were not disturbed by problems Walker has with his selected memory which includes the following:

--He remembered earning a college degree from the University of Georgia which he did not, but forgot about three children he sired. (It’s easy to confuse the two.)  

He also remembered being in the top 1 percent of the university class from which he did not graduate.

--He remembered that he was the valedictorian in his high school graduation class, but there is no record of that.

--He remembered doing “a lot of things in the military.” That’s the military in which he did not serve

--He remembered supervising six U. S. hospitals. These apparently did not have any doctors, nurses or patients because no one could find them.  Perhaps Robert F. Kennedy Jr., the anti-vaccine advocate and whom Trump picked to head the Department of Health and Human Services, worked in one of them.

With little to do, perhaps the warm climate and rest will help Walker with his memory.  

In any case, with Walker returning to national politics, we look forward to more Walkerisms. The problem: ambassadors to the Bahamas do not receive much coverage from the mainstream media.

Thus, we plan to contact Walker for interviews once a month at his ambassadorial residence which, we assume, will be a shed on the beach.


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Berl Falbaum is a political author and journalist and the author of several books.