August 20, 2019

Should the Federal Mediation Privilege Only Apply to Court-Ordered Mediations?

Josh Fruchter
The existence and scope of a federal mediation privilege remains unclear. Among the Circuit Courts, the strongest and clearest endorsement of a federal mediation privilege is the Second Circuit’s decision in In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011). Yet, in a somewhat surprising about-face, a federal magistrate..
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August 19, 2019

Does Mediation Confidentiality Protect Communications Between Two Parties on the Same Side of the Table?

Josh Fruchter
The Ninth Circuit held last week that mediation-related communications between two parties on the same side of the table are inadmissible under California’s mediation confidentiality statute in subsequent litigation between those two parties. Apollo Education Group, Inc. v. National Union Fire Ins. Co., 2019 WL 3822322 (9th Cir. Aug. 15,..
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August 15, 2019

The Singapore Mediation Convention: Will It Fulfill Its Promise?

Josh Fruchter
Just over a week ago in Singapore, on August 7, 2019, 46 countries — including economic powerhouses such as China, India, South Korea and the United States — signed the U.N. Convention on International Settlement Agreements Resulting from Mediation (a/k/a the Singapore Mediation Convention) (“Convention”). What’s the big deal? By..
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August 14, 2019

Hospital Communication and Resolution Programs: Lessons for Mediating Workplace Disputes?

Josh Fruchter
As mediators, we need to remain informed about new and innovative approaches to dispute resolution in niche contexts, so we can analyze the reasons for their success, and advocate for their broader use in other arenas where they may also prove helpful. One such development is the growing adoption by..
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August 13, 2019

From the Talmud: How Empathy and Curiosity Help Mediators Resolve Disputes

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we discuss two vital mediation techniques — encouraging empathy and exhibiting curiosity — that emerge from a Talmudic legend concerning Alexander the Great (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source..
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August 8, 2019

I’m Sorry: The Power of Apology in Mediation

Josh Fruchter
As children, we were taught by our parents and teachers to take responsibility for our actions and apologize if we damaged someone’s property or hurt someone’s feelings. See Professor Jonathan Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999). Yet, ironically, as adults — if we cause..
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August 6, 2019

Top Strategies for Preventing and Breaking Impasse in Mediation

Josh Fruchter
Impasse — it’s the bane of all mediators. We know it when we see it. The gap between the parties seems unbridgeable. Neither side is willing to make a move. Emotions are running high, and both sides are ready to walk. What can mediators do to prevent negotiations from reaching..
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August 5, 2019

Documenting the Remedy for Breach of a Mediated Settlement

Josh Fruchter
When parties reach a settlement at a mediation, and memorialize their agreement in writing, the obvious expectation is that both parties will perform their obligations. Of course, it doesn’t always work out that way, and so the writing should also address the remedies for any breach. There are essentially two..
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August 1, 2019

Reforming a Mediated Settlement Agreement When It Contains a Mistake

Josh Fruchter
Term sheets, MOU’s and other forms of abridged settlement agreements hastily drafted and executed at the conclusion of a mediation typically only contain the material terms of the settlement (with the parties contemplating that a more detailed document will be prepared at a later date). Given the time constraints under..
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July 31, 2019

From the Talmud: Is Mediation of Disputes a Moral Duty or a Utilitarian Exercise?

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Moral duties are actions we are..
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