March 17, 2020

Coronavirus and Collaboration: Cooperating in a Time of Crisis

Josh Fruchter
The Irish poet and playwright, Oscar Wilde, famously observed how “life imitates art far more than art imitates life.” About a year ago, a colleague introduced me to the world of “cooperative” board games, which stress cooperation over competition. There are no individual losers or winners. Instead, players work together..
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January 7, 2020

What Does it Mean to Have “Settlement Authority” at a Mediation?

Josh Fruchter
Local rules implementing alternative dispute resolution procedures typically provide that mediation attendees must have “settlement authority.” But what exactly does that term mean? Is attendance by outside counsel enough if someone else with full settlement authority is just a phone call away? A federal magistrate judge recently explored these questions..
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December 29, 2019

Can Confidential Mediation Materials Start the 30-Day Clock Ticking for Removability Under the Class Action Fairness Act?

Josh Fruchter
The Class Action Fairness Act (“CAFA”) provides expanded original diversity jurisdiction in federal courts for class actions meeting certain requirements, including an amount in controversy that exceeds $5,000,000. If the class representative commences a class action in state court that meets the requirements for removal, a defendant may seek to..
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October 16, 2019

Mediation Lessons from the Talmud: The Endowment Effect and Its Impact on Settlement Negotiations

Josh Fruchter
In this latest post applying Talmudic principles in mediation, we discuss a psychological principle known as the “endowment effect” and its impact on negotiations during mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Our Psychological..
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October 6, 2019

Is Your Pre-Litigation Mediation Clause Well-Drafted? A Cautionary Tale from Hawaii

Josh Fruchter
Given the increasing popularity of pre-litigation mediation clauses, we continue to keep an eye out for new decisions addressing enforcement of such clauses.  In a past post, we discussed the importance of fixing deadlines to both commence and complete pre-litigation mediation. A Hawaii federal court recently held that the relevant..
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September 26, 2019

Mediation Lessons From the Talmud: The Components of an Effective Apology

Josh Fruchter
In this latest post exploring mediation lessons from the Talmud, we discuss the components of an effective apology (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). The Jewish New Year is four days away. The Talmudic..
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September 23, 2019

Revisiting the Insurer’s Decision Tree Analysis Discussed in Last Tuesday’s Blog Post

Josh Fruchter
Last Tuesday, we published a blog post discussing how a flawed decision tree analysis led an insurer defending a wrongful death action to reject reasonable settlement offers, and then get hit with a nearly $40 million verdict and a $7.2 million judgment for breaching a Texas state law duty to..
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September 18, 2019

5 Ways Mediators Can Add Value to Hospital Communication and Resolution Programs

Josh Fruchter
We have previously discussed the growing trend towards implementation by hospitals of Communication and Resolution Programs (CRP). To recap, CRP’s aim to foster transparent communication with patients and their families following an adverse medical event, including: prompt disclosure of medical error; an explanation of why the medical error occurred, and..
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September 17, 2019

Insurer That Relied On Flawed Decision Tree Analysis Hit With $7.2M Judgment For Rejecting Settlement Offers After Failed Mediation

Josh Fruchter
The dynamic present in personal injury mediations is fairly straightforward. The defendant’s insurer (or the defendant, if self-insured) will estimate the risk of a jury verdict for the plaintiff on liability, and discount the likely damages by that risk to determine a reasonable settlement range. On the other side of..
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September 9, 2019

Is Your Pre-Litigation Mediation Clause Well-Drafted? A Cautionary Tale from California

Josh Fruchter
The popularity of pre-litigation mediation clauses continues to grow. Such clauses are appealing because they provide parties with a window of opportunity to settle a dispute before becoming embroiled in litigation and incurring all of the attendant costs. Such opportunities are especially valuable where a dispute arises out of an..
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