Order for Alternative Dispute Resolution

[GoldyGopher]

For the sake of completeness:

Yesterday Hon. Judge Fried Order for Alternative Dispute Resolution (Mediation) was posted online: here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=OngETBBRXLgrHaRC 17EeCQ==&system=prod)

As we know from the Transcript that this was so ordered in December so I don't consider it shocking or exciting or anything.

We also know that neither party at this point has any interest in Mediation and the Judge ordered both parties to work with a mediator, which has a 59% success rate at resolving cases.

[tihocan]

I haven't been following the case too closely, so, I'm mostly wondering:
At this point, is it looking good for Turbine or not?

[Mockduck]

I can picture it now:


Setting: Psychologist's (mediators) office
Parties: Mediator, Atari, Turbine


Mediator: "So, Atari, how did it make you feel when Turbine accused you of destroying their IP and trying to secretly make a competing product?"

Atari: "Not very good, I spent weeks crying."

Turbine: "But they cost us MILLIONS OF DOLLARS!?!?!?! And went behind our backs to kill our game to make a Neverwinter Nights MMO!"

Mediator: "Remember, Turbine: Feelings, not statements..."

[Hafeal]

Thanks for the link Goldy.

This is standard practice (ADR). The interesting part of the order is the allowance of "limited" discovery. Without definition, there was probably a verbal representation before the court as to what that would entail. But, it is the sort of ambiguity that can lead to dispute.

[Dark_Helmet]

Thanks for the link Goldy.

This is standard practice (ADR). The interesting part of the order is the allowance of "limited" discovery. Without definition, there was probably a verbal representation before the court as to what that would entail. But, it is the sort of ambiguity that can lead to dispute.

Depends on if the 3rd Party thinks limited discovery is warranted.

Always good to see the efficiency of the court system: took over a month to go out, they don't know what year it is... twice! "Hmm, is it 2009, 2011?" :rolleyes:


I always find it funny to see them write info such as phone numbers on the papers then post them online. Imagine everyone calling and asking, " Hey Maris, how is the case going in your opinion?" :D

[Dark_Helmet]

I can picture it now:


Setting: Psychologist's (mediators) office
Parties: Mediator, Atari, Turbine


Mediator: "So, Atari, how did it make you feel when Turbine accused you of destroying their IP and trying to secretly make a competing product?"

Atari: "Not very good, I spent weeks crying."

Turbine: "But they cost us MILLIONS OF DOLLARS!?!?!?! And went behind our backs to kill our game to make a Neverwinter Nights MMO!"

Mediator: "Remember, Turbine: Feelings, not statements..."

Mediator gives Turbine a doll: "Tell us where Atari touched you". Turbine points at the heart and then swings an imaginary dagger into the back serveral times.

Mediator Gives Atari a doll: "Tell us where Turbine touched you". Atari points at their wallet.

[Shassa]

I smell a new podcast skit...

[Arness]

For the sake of completeness:

Yesterday Hon. Judge Fried Order for Alternative Dispute Resolution (Mediation) was posted online: here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=OngETBBRXLgrHaRC 17EeCQ==&system=prod)

As we know from the Transcript that this was so ordered in December so I don't consider it shocking or exciting or anything.

We also know that neither party at this point has any interest in Mediation and the Judge ordered both parties to work with a mediator, which has a 59% success rate at resolving cases.

Standard civil case procedure. In most states, mediation is a REQUIRED step prior to trial. If a solution can't be worked out, then it goes to trial, but with overcrowding of civil dockets, the hope is to eliminate these cases before they hit full trial - sometimes it actually works.

[Arness]

Thanks for the link Goldy.

This is standard practice (ADR). The interesting part of the order is the allowance of "limited" discovery. Without definition, there was probably a verbal representation before the court as to what that would entail. But, it is the sort of ambiguity that can lead to dispute.

Just wondering, in my previous experience in the midwest, a good chunk of discovery is already done, if not completely done, by the time the case goes to ADR. Is this not the practice in New York?

[unionyes]

Thanks for the link Goldy.

This is standard practice (ADR). The interesting part of the order is the allowance of "limited" discovery. Without definition, there was probably a verbal representation before the court as to what that would entail. But, it is the sort of ambiguity that can lead to dispute.

I use ADR and mediation professionally on a regular basis.

I have to say that I much prefer privilege over limited discovery. I'm not sure if it can be used in this forum in this jurisdiction, though. It appears to be non binding, as well, so I have to say that in spite of the slightly above half the time success rate of the mediator, coupled with the limited discovery inclusion and the previous track record, I would bet Turbine Points that the mediation is not successful.

[Stormanne]

http://iapps.courts.state.ny.us/iscroll/SQLData.jsp?IndexNo=602639-2009

This is all I found on the Turbine side of the case...

[RioRussell]

Mediator gives Turbine a doll: "Tell us where Atari touched you". Turbine points at the heart and then swings an imaginary dagger into the back serveral times.

Mediator Gives Atari a doll: "Tell us where Turbine touched you". Atari points at their wallet.

+1. well played.

[Stormanne]

Oh, and here is the complaint records for the Atari side...

http://iapps.courts.state.ny.us/iscroll/SQLData.jsp?IndexNo=602751-2009

[Kalari]

I can picture it now:


Setting: Psychologist's (mediators) office
Parties: Mediator, Atari, Turbine


Mediator: "So, Atari, how did it make you feel when Turbine accused you of destroying their IP and trying to secretly make a competing product?"

Atari: "Not very good, I spent weeks crying."

Turbine: "But they cost us MILLIONS OF DOLLARS!?!?!?! And went behind our backs to kill our game to make a Neverwinter Nights MMO!"

Mediator: "Remember, Turbine: Feelings, not statements..."

Ahh Jerry your witty satire tickles my funny bone :)

[Cyr]

Mediator gives Turbine a doll: "Tell us where Atari touched you". Turbine points at the heart and then swings an imaginary dagger into the back serveral times.

Mediator Gives Atari a doll: "Tell us where Turbine touched you". Atari points at their wallet.

+1 rep for your humor including both sides.

[Cylinwolf]

Yesterday Hon. Judge Fried Order

Ugh, I'm sorry, but I read that as "fried order" like twelve times before I actually figured out what was going on.

And I don't want a fried order presiding over my court cases.

[Hafeal]

Just wondering, in my previous experience in the midwest, a good chunk of discovery is already done, if not completely done, by the time the case goes to ADR. Is this not the practice in New York?

I don't know about NY; I am in Illinois. Here though, cases are assigned to ADR concurrent with discovery most of the time depending on the county, court and type of case.


I use ADR and mediation professionally on a regular basis.

I have to say that I much prefer privilege over limited discovery. I'm not sure if it can be used in this forum in this jurisdiction, though. It appears to be non binding, as well, so I have to say that in spite of the slightly above half the time success rate of the mediator, coupled with the limited discovery inclusion and the previous track record, I would bet Turbine Points that the mediation is not successful.

I agree with your take on the bet and would not take you up. The case is more likely to settle despite ADR than because of it if the two sides can reach an agreement on the money.

[GovtMule]

"Can you show me on the dolly where they touched you?"

"The dolly doesn't HAVE one!" *weep*

[unionyes]

"Can you show me on the dolly where they touched you?"

"The dolly doesn't HAVE one!" *weep*

Of course the dolly doesn't have one.

The dolly is a Night Elf Mohawk.

[Memnir]

My mom works as a Mediator for the courts - and it only works if both sides want it to. In an increasing number of trials, Mediation is a required step to getting to an actual day in court.

But given the history in this case, Mediation will likely be a dead end.

[Sphinx111]

ADR is neither legally binding, nor is it based in the courts. They can be asked to sit down by President Obama himself, but at the end of the day, if one of the parties doesn't want to agree on the topic, they don't.

The likely outcome of any ADR is that it will end in a stalemate, because I don't see Turbine settling for anything less than a sh*twad of cash.

Personally, if I were in Turbine's shoes anyway, I wouldn't settle through ADR unless Atari were offering something particularly juicy.

A more likely outcome is back to court in the not so distant future...

[Hafeal]

ADR is neither legally binding, nor is it based in the courts.

Actually, ADR can be binding - binding arbitration does exist (baseball player contracts for example). Further, many states have a mandatory ADR program (as Memnir mentioned) as part of the normal litigation process.

As a point of clarification ADR can refer to either mediation or arbitration.

[unionyes]

Actually, ADR can be binding - binding arbitration does exist (baseball player contracts for example). Further, many states have a mandatory ADR program (as Memnir mentioned) as part of the normal litigation process.

As a point of clarification ADR can refer to either mediation or arbitration.

Most binding arbitration processes are in place for forums that don't have redress to the courts, other than to settle an issue of procedure or address a claim of patent unreasonableness.

The reason for the appeal to the courts to quash the binding mediators award has to be almost over the top. Examples include realistic apprehension of bias (the counsel for one party was observed leaving the hotel room of the mediator at approximately 3 AM on the night before the award was dispensed, with her hair all mussed up), an error in law (usually being somewhat behind the times, such as 'the supreme court having failed to uphold the premise that women are considered to be persons under the British North American Act and as such cannot hold property in their own name'), or a huge procedural violation (not allowing one side to cross examine a witness, or failing to allow redirect because the mediator has dinner reservations).

[Hafeal]

Most binding arbitration processes are in place for forums that don't have redress to the courts, other than to settle an issue of procedure or address a claim of patent unreasonableness.

I am not aware of any process that could not be dealt with by the courts other than a process which has been, by statute, removed from the court's jurisdiction (e.g,, National Labor Relations Board).

Many binding processes are in place to completely avoid the courts; class action lawsuits in particular. Credit cards are a great example - most have instituted binding arbitration in their policies in order to deny court relief to consumers and circumvent the ability of consumers to gather into a class. Most of the time the ADR is also set in a forum where the odds are stacked in favor of the industry (e.g., they appoint arbitrators or have cozy relationships with the ADR facilitator).

[SunDevilSteve]

I can't seem to find the order online. Does it give a timeframe for the ADR? Also, anybody know how long this process will take? Any lawyers out there wanna chime in?

[Mockduck]

Here's a LINK (http://iapps.courts.state.ny.us/iscroll/SQLData.jsp?IndexNo=602639-2009) to all of the online records in the case (consolidated cases). The ADR order is currently at the top.