Court-Ordered Mediation Scheduled For Jan 2017 in Rossi v. Industrial Heat Case

1st Official Post
    • Official Post

    [feedquote='E-Cat World','http://www.e-catworld.com/2016/07/27/court-ordered-mediation-scheduled-for-jan-2017-in-rossi-v-industrial-heat-case/']There’s an entry from July 26, 2016 on the docket for the Rossi v. Industrial Heat court case regarding mediation between the two parties which Judge Cecelia Altonaga had mandated: ORDER Scheduling Mediation before Thomas E. Scott. Mediation Hearing set for 1/12/2017 10:00 AM. The parties are reminded that a report of the mediation is […][/feedquote]

    This is routine court practice. There was a little flap, perhaps, over the failure of the parties to schedule mediation as previously ordered. If the parties could not agree, it was the responsibility of the plaintiff to request the Clerk of the court assign a mediator, if the parties could not agree, and it appeared that had not happened. Hence the prior order of the Judge that this be done, or else the complaint could have been dismissed. This is the full text of the Order:

    I am not well informed on this type of procedure. I am assuming that the judge (Altonaga) chose Thomas Scott as a mediator.
    Mr. Lomax, do you know what process is normally used in a judge selecting a mediator such as this?


    I am also assuming that this mediation will soley be based upon contractual matters and will have nothing to do with the validity
    or scientific proof of the eCat, it's working or commercial usefulness. A brief reading of the stated law firm, gives no indication of
    experience in scientific areas as such. Again, I assume that his will be mediation in regards to contract wording etc. ?


    What would happened if, say Mr. Rossi or his lawyer, did not show up for this conference? Would it be an automatic forfeit of the lawsuit?


    Did the above order state that both parties were instructed to select an agreed upon mediator previously and did not do so? Could this have
    been the inaction of only one party? Say that Rossi sent IH a proposed mediator and IH refused the selection. Would this scenario result in
    this order or would the judge taken a different path? The order is a bit vague. It could be read that neither party did anything or I guess possibly
    that the parties could not come to an agreement.


    Any other thoughts about this mediation order?


    Thank you for your thoughts on the subject.

    Quote from Bob

    I am not well informed on this type of procedure. I am assuming that the judge (Altonaga) chose Thomas Scott as a mediator.

    On the face of it, no. The mediator was chosen by the parties. "upon the agreement of the parties."

    Quote

    Mr. Lomax, do you know what process is normally used in a judge selecting a mediator such as this?

    The parties were ordered to agree on a mediator in an earlier order, and they had not. The rules provide that if the parties cannot agree, the plaintiff is to request the Clerk of the court make an appointment by random from a list maintained by the Clerk. Otherwise, anyone can be chosen as a mediator by agreement of the parties.

    Quote

    I am also assuming that this mediation will soley be based upon contractual matters and will have nothing to do with the validity
    or scientific proof of the eCat, it's working or commercial usefulness.
    A brief reading of the stated law firm, gives no indication of experience in scientific areas as such. Again, I assume that his will be mediation in regards to contract wording etc. ?


    https://groups.yahoo.com/neo/g…tex/files/Rossi_v_Darden/ has case files and some other documents. The one of interest here is December-2015-Local-Rules.pdf


    Quote

    page 34:
    A certified mediator is an attorney, certified by the Chief Judge in accordance with these Local Rules, who possesses the unique skills required to facilitate the mediation process including the ability to suggest alternatives, analyze issues, question perceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sides, and keep order.
    The mediation process does not allow for testimony of witnesses. The mediator does not review or rule upon questions of fact or law, or render any final decision in the case. Absent a settlement, the mediator will report to the presiding Judge only as to whether the case settled (in full or in part) or was adjourned for further mediation, whether the mediator declared an impasse, and pursuant to Local Rule 16.2(e), whether any party failed to attend the mediation.
    [...]
    (e) Party Attendance Required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. If a party to a mediation is a public entity required to conduct its business pursuant to Florida Statutes Chapter 286, and is a defendant or counterclaim defendant in the litigation, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. The representative shall not be solely the public entity’s counsel (or firm) of record, however, the representative may be the public entity’s in-house counsel where another counsel of record for the public entity is also present. In cases where the in-house counsel is counsel of record, that counsel and another representative may act as duly authorized representatives of the public entity. In cases where the parties include a public entity and/or individuals who were or are employed by a public entity or elected officials of a public entity, such individual parties do not need to attend the mediation conference if all claims asserted against the individuals are covered by insurance or by an indemnification from the public entity for purposes of mediation. Notwithstanding the foregoing, counsel representing the individual defendants shall provide the individual defendants with notice of the mediation conference and the individual defendants shall have the right to attend the mediation conference. The mediator shall report nonattendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court.


    I discuss the mediation issue at https://groups.yahoo.com/neo/g…onversations/messages/805 -- press the "see message history" link for the message, yahoo thinks that quoted material is necessarily message history!

    Quote


    What would happened if, say Mr. Rossi or his lawyer, did not show up for this conference? Would it be an automatic forfeit of the lawsuit?

    No, it would not be automatic. "Sanctions" are mentioned. The Judge would determine what is appropriate. Sanctions could include, as an example, requiring the non-showing party to bear the costs of mediation. I could imagine a court would be more friendly to a request for payment of attorney's fees by a party that did not show. A judge could conceivably order the case dismissed as a sanction against a non-showing plaintiff. Basically, if it can be avoided, not showing up is a Very Bad Idea.


    Quote

    Did the above order state that both parties were instructed to select an agreed upon mediator previously and did not do so?

    No, it did not state that. The prior order stated failure, but did not point to one party of the other.

    Quote

    Could this have been the inaction of only one party? Say that Rossi sent IH a proposed mediator and IH refused the selection. Would this scenario result in
    this order or would the judge taken a different path? The order is a bit vague. It could be read that neither party did anything or I guess possibly
    that the parties could not come to an agreement.

    The order is, in fact, clear, it merely is not stating what is expected! I.e., we kind of think the judge is supposed to point the finger of blame. Isn't that what judges do?


    No. That is "judge" in the popular sense. In fact, the rules, as I previously discussed, placed responsibility in the hands of the plaintiff. If the defendant doesn't agree on a mediator, the plaintiff is to request the Clerk of the court to select a mediator at random from the list. The plaintiff could then go to the Judge and unilaterally request a formal Order appointing that mediator.

    Quote

    Any other thoughts about this mediation order?
    Thank you for your thoughts on the subject.

    The attorneys smelled the coffee and appointed a mediator, because they could pick one mutually convenient. That would not necessarily happen with a random choice of a mediator with an office somewhere in the Court District. I personally assume that Annesser dropped the ball here, because he should have requested a mediator appointment if IH was dragging its feet. However, Annesser is not highly experienced, as far as I can tell, and anyone can make a mistake or be visiting his grandchildren or something. This is a minor issue, and it was easily fixed. The worst aspect could be that Annesser's personal stock just went down slightly. The judge is, I'm sure, quite capable of setting all that aside and continuing as a even arbiter of law, her job.


    The task of a judge in a case where a jury trial has been requested is not to judge fact. That is for the jury to determine. The judge will determine procedure -- and advise the jury on matters of law, with "jury instructions."


    The mediator is not a judge, but a facilitator of agreement, where possible. Someone who tries to convince a mediator that they are "right" is probably barking up the wrong tree. If they can convince the other party, sure! A mediator might ask, "Okay, what can we agree on?" A mediator would help develop the list. Are there possible compromises? A mediator might suggest one, but cannot impose it. There is no sanction for being "unreasonable" in mediation. It's an opportunity to settle and save a lot of money for both sides, perhaps, but if the cost is too great .... and it is entirely up to the parties to make that call.


    What the court wants is for someone to be there, from all sides, with the authority to settle claims. It is not going to attempt to coerce settlement, in any way.


    Mediation is confidential. We will not know what happened, at least not from the mediator or official record!

    Thank you Mr. Lomax for your thoughts.


    While it may be a normal procedure, the outcome will certainly be interesting. If IH had an extremely strong case, would it be likely they would present much of it at this conference?
    And then seeing how strong the case was, would Rossi's attorney likely state "settle now or you are toast!" or I guess the reverse if Rossi had a strong case.


    My question is will it be likely that either party will "show their hand" or "call the bluff" speaking in poker terms! If D. Weaver is correct, it would seem that IH would
    show their royal flush and Rossi's attorney would fold. If it is the opposite, would Rossi's attorney likely show their hand? I would assume not, in trying to get a jury award of 89 million.


    Again thank you for your opinion.

    Rossi's attorney will not "fold" as long as Rossi gives him money or he smells that a very large contingency fee is still possible.

    By the time of the mediation conference, much will already be on the table. The mediator may meet ("caucus") with the individual parties. The rules require a party be there, a corporation by someone with authority to settle any expected issue. The attorney of record cannot be the only one there, and the decision to settle or not may be made on the advice of an attorney, but is up to the actual party.


    These proceedings are confidential. I have seen no glimpse into them.


    One way to look at the process, though, is to consider the mediator an attorney tasked with seeking mutual welfare. A mediator might indeed advise a party that the case they are planning is unlikely to succeed, but I'd guess would do that privately, not in conference. The decisions are up to the parties.

    Quote from Mary Yugo

    Rossi's attorney will not "fold" as long as Rossi gives him money or he smells that a very large contingency fee is still possible.


    I think anyone who understands the technical issues will know that Rossi cannot win. If the lawyer has technical acumen he may conclude that the case is hopeless. Depending on how much is promised on contingency he might advise Rossi to give up.

    • Official Post

    let us be irrationally optimistic.
    If IH just refused to pay for saving some money, because they had not enough, the negociation will make them quickly understand it is their interest to pay, to raise money, that they have been foolish, and that respecting the contract will be rational. they may even pay some indemnities to keep Rossi in good mood, and why not give him share of derived IP to enforce a mutual assured developement incentive...


    Now if the Dewey/Jed impression is confirmed, what is there to negotiate ?
    IH will ask for better test, it will be refused, they will not pay, it will go to jury, and press will ridiculise LENR until IH organize a serious test in public, with third party, involving one of their researchers.

    Quote from "AlainCo"

    If IH just refused to pay for saving some money, because they had not enough, the negociation will make them quickly understand it is their interest to pay, to raise money, that they have been foolish, and that respecting the contract will be rational


    It is probably partly true that IH was not able to raise enough money to pay $89M, or maybe they simply didn't want to, because they never expected to need to. They expected to be able to replicate everything by the time the test was finished. This was the reason for them to delay it. But, as I said before though; there is a difference between Rossi telling Darden how to run a marathon in 2h 26min and Darden actually doing it... And Darden clearly did not train enough (takes 10 years, 10000 hours... and some talent, <5% though). They probably learned to replicate some, but only for good day 4h marathon run, which isn't really worth to compete with.


    I believe most potential investors would be careful about who OWNS the IP and has the SKILLSET before investing. IH sales pitch was that they did, which was obviously a lie (or more like we believe we will learn soon... because we know it works). This was the most important time constraint, which Rossi recently has acknowledged by stating the plant needed him 16h/day and West+Fabiani 8h/day to run.


    For IH to raise money now is useless/hopeless. They failed and probably need to pay $89M (ie Darden Vaughn and Cherokee, who has the money) without being able to compete in the market. Their best chance is probably to sign non-compete, sign back all patent apps, nullify license indefinately (ie. give everything back) AND offer to pay some amount and get the hell out of it - go back doing brownfields or whatever... Maybe it will be cheaper than $89M. Who knows?

    sifferkoll


    Quote from sifferkoll

    I believe most potential investors would be careful about who OWNS the IP and has the SKILLSET before investing. IH sales pitch was that they did, which was obviously a lie (or more like we believe we will learn soon... because we know it works). This was the most important time constraint, which Rossi recently
    has acknowledged by stating the plant needed him 16h/day and West+Fabiani 8h/day to run.


    But maybe IH can replicate and replicate even better than Rossi?


    Quote from David Fojt’s interview:


    “As regarding the Rossi IH conflict, this is not my war however from everything I knew I believed that actually IH has replicated Rossi with great success, even with more reliability than Rossi himself”.


    http://egooutpeters.blogspot.co.uk/


    Does Rossi have proof of this do you think? Is this the sort of 'fact' that might be introduced at the 'mediation' if indeed it is a 'fact'?


    Best regards
    Frank

    • Official Post

    Andy Kumar used to post over on ECNs, Today on ECW he had an interesting twist (bold faced) on the matter, from a source of his in NC:


    In the beginning, I thought that IH was using Rossi to raise money for other clean energy ventures. But one of my consultant friends in North Carolina says that IH were sincere in their efforts. They knew that Rossi has a history of being difficult to work with, they knew his checkered past. He ALWAYS wants to run the tests *his way* only. Rossi's own journalist friend had reported that Rossi walked away in anger when some of the potential partners proposed soild calorimetry..


    Believing that Rossi had something useful, IH decided to SHOW him the BIG MONEY. They gave him $12M right away - a big deal for Rossi but peanuts for IH. Then they raised 100s million from Woodford. They got Chinese officials to back him up with potential 100s BILLION, and promise of access to the largest market. They hoped that with the big money on the table, Rossi will know it is time to show his hand.


    Rossi *misunderstood* IH motives. He thought that they were complicit in the charade when they unquestioningly accepted his interim reports and "danced like little ballerinas" in front of visitors. IH knew Rossi's mistrusting nature and continued showing complete trust in Rossi and lining up potential BIG backers in the hope Rossi will deliver. Obviously they cannot hand over $89M to Rossi based on just an ERV's report. They have fiduciary duty to the people from whom they raised the money..


    Now they have bad blood between them. IH demanded their $12M back. Rossi preemptively filed the lawsuit in the hope that IH will settle for fear of embarrassment. But IH are savvy businessmen. In their internal meetings with potential partners, they have recorded honestly that interim reports should be taken with a grain of salt. By accepting the reports, they are just *humoring* an eccentric, difficult and a bit narcissistic but brilliant inventor. They WILL demand proper calorimetry and expected Rossi to deliver with 100s BILLION on the table. But apparently Rossi does not know "when to hold them, when to fold and when to run..."

    Quote from &quot;ShaneD&quot;

    Rossi *misunderstood* IH motives. He thought that they were complicit in the charade when they unquestioningly accepted his interim reports and "danced like little ballerinas" in front of visitors


    ???


    So the hypothesis is that IH was playing a game with both Rossi AND their investors? Sounds extraordinary stupid...

    • Official Post

    Siffer,


    I said it was a new twist! :) Actually the way I read it, was that Rossi thought (wrongly) that IH entered the deal for the scam, or to be "complicit", in bilking investors, as was he. Partners in crime so to speak. His belief was reinforced each time IH accepted another one of the ERVs *sham* reports without complaining. Instead, using the reports to attract more investors. At the end, when they were to share the illicit money, IH reneged.


    Hey, you never know! :)


    Take care.

    Hi all


    With respect to all and sorry about the crudity of language. As a Canadian colleague of mine put it.


    It is all about the price at which you "Suck Dick" essentially once enough money is on the table all will deal if for no other reason than to have enough money to prevent others from falling into such circumstances.


    If as Dewey and various others claiming to speak on behalf of IH are being truthful then IH can either pay enough to make Rossi go away or fight the case.
    Note Well! IH said do not trust any information about IHs position unless it is directly from them, Dewey, Jed, Lomax, all fall into this category of people IH themselves told everyone not to trust, people seem to forget this.


    If as Rossi and the ERV contends the reactors work, then IH's options are diminishing.


    If Rossi feels he can make more money than the $89 million from going along with a partner with a more lucrative deal the only option IH have is to pay up the $89 million plus some additional money to get things back to the original contract and start manufacturing E-Cats.


    Of course I still think the October Surprise is a possibility.


    Kind Regards walker

    Quote from AlainCo

    If IH just refused to pay for saving some money, because they had not enough


    I think IH would have refused to pay whether or not it had the money. But if it did not have the money this was because Rossi did not transfer the know how to enable them to replicate the effect. But as others have observed, there would have been no problen raising $89M had Rossi respected the agreement. With the benefit of hindsight it appears that not a single one of Rossi's licensees were able to demonstrate the technology which makes it appear that the technology never existed in the first place.

    Quote from Walker

    Note Well! IH said do not trust any information about IHs position unless it is directly from them, Dewey, Jed, Lomax, all fall into this category of people IH themselves told everyone not to trust, people seem to forget this.


    No, IH said nobody but IH is entitled to speak on their behalf. They never said anything about not trusting anyone. When did any of Dewey, Jed, Lomax claim to speak for IH? You are inventig facts.

    Why did IH pre-emptively separate itself from the social engineering going on?


    Is it simply good, clean business practice, as they might have suspected Weaver would meltdown? -if his meltdown is real ofc; the cause being, seeing the legendary golden goose fly away cackling-. This could all be a misunderstanding as explained by Shane D. on the first page
    Yet it's factual that there are here professional cultists peddling their trade. What is their goal?
    Is it to goad Rossi into revealing his secret sauce to IH (or give better instructions as to how to operate the E-Cat?), playing on his pride and pushing him to prove the efficiency of his invention, which has been constantly malignated for weeks? and then, IH would renegotiate with Rossi.
    Or is Cherokee mad at Rossi, and it's open conflict, in which Psychological Warfare Divisions are needed?


    Rossi was certainly mad at them. Could it be that the aberrant data Jed Rothwell so much enjoys to meme into existence, has to do with the series of events leading up Rossi tearing up the measuring apparatus, as Jed mentioned a couple times? he was mad at IH for a while, maybe started messing with data and then in the end pulled out some gear to make sure said data was unrecoverable?


    If Rossi's reality is that the E-Cat works with a 50+ COP, why wouldn't he mess with things for fun before leaving an ex-partner he now mistrusts completely (for good reasons or paranoia)?



    Those are the less nefarious scenarios, everyone knows the others.

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