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FLUTH v. SCHOENFELDER CONSTR., 2018 S.D. 65: Owner of a rental property had a prior disgruntled tenant set off a gas explosion in one of his properties.  Owner contracted with Contractor to demolish the home and grade the property.  Owner was told that the waterline accessing the property needed to be shut off at the street-curb.  Owner only shut off the water in the basement and had the water meter removed.  During demolition, Contractor…
ISG, CORP. v. PLE, INC., 2018 SD 64: Plaintiff contracted with Defendant to build two observation platforms for use by law enforcement at an annual festival held in San Juan, Puerto Rico.  Defendant did not deliver the platforms they agreed to build and instead delivered a used, contractually non-compliant platform.  Plaintiff sued Defendant and its president for breach of contract and fraud.  The case went to trial and the jury found in favor of Plaintiff,…
After thirty-two plus years practicing law I have had more than my share of clients tell me that their particular dispute was not about the money. Any lawyer practicing for any length of time has had the same experience and usually when a client says it isn’t about the money it typically is ALL about the money or becomes about the money once the client gets the first bill. One of the reasons I love…
While the parties control the outcome of a mediation, the mediator manages the process from which the outcome flows. The preceding post mentioned the fact that a mediator is obligated to conduct a quality mediation and protect the “quality of the process”. What does that mean? Is a quality process simply good coffee and donuts? While good coffee and donuts may very well be desirable, the concept of a quality process is far more than…
I blew out my knee twice playing college football  As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more…
STATE v. RANDLE, 2018 S.D. 61: Defendant was attending a party where he was handling an AK-47.  While sitting down, the AK-47 was discharged while in Defendant’s possession.  The bullet struck another party-goer.  Defendant claimed that he was handed the gun and it caused his chair to slide backwards and the gun to slide off his lap.  Defendant then grabbed the gun to prevent it from falling causing it to discharge.  The victim ultimately died…
It is likely no coincidence that self-determination is listed as the first standard in the Model Standards of Conduct for Mediators (“the Model Standards”). The Model Standards were designed to “…serve as fundamental ethical guidelines for persons mediating in all practice contexts.” Self-determination is not just a discretionary academic principle: a mediator is required to conduct a mediation based on this principle and this principle applies at any stage of the mediation, “including mediator selection,…
HANSON v. BIG STONE THERAPIES, 2018 SD 60: Plaintiff began experiencing pain in her leg during a physical therapy session following hip surgery.  Plaintiff was diagnosed with a fractured femur and subsequently brought suit against the physical therapy company and the hospital.  Plaintiff alleged that the physical therapist was negligent during physical therapy and that the hospital was negligent in failing to timely diagnose the fractured femur.  Both the physical therapy company and the hospital…
I mediated many cases before ever having had any training, formal or otherwise, as a mediator. My impression of a good mediator before training was of someone who didn’t engage in any of the “touchy feely” stuff like joint sessions, interests of the parties or self-determination. A good mediator was forceful, got right to business and imposed his will on the parties if necessary to get the case resolved. A good mediator was judged by…
BLUE v. BLUE, 2018 SD 58: Plaintiff and Defendant inherited two parcels of land as tenants in common.  Ten years later, Plaintiff commenced an action to partition one of the parcels.  Defendant counterclaimed for partition; for the value of the purported improvements; and for restitution for the time he spent caring for both properties.  The circuit court partitioned the land equally, awarded Defendant owelty, and denied Defendant’s claims for improvements and restitution.  Defendant thereby appealed.…