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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September 5, 2019

Imago Couple’s Dialogue: A Technique for Addressing Emotion During Mediation

Josh Fruchter
Nearly all disputes in mediation have both a financial and an emotional component. To paraphrase mediator Julie Denny*, the chief executive of a manufacturer is not just angry because the company lost money due to defective parts; she also feels betrayed because a longstanding supplier whom she trusted cut corners..
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September 3, 2019

Does a Mediation Trigger the Duty to Defend Under a CGL Insurance Policy?

Josh Fruchter
Standardized commercial general liability (CGL) insurance policies impose a “duty to defend” that obligates insurers to defend insureds against “suits” seeking damages for claims potentially covered by the policy. The existence of a duty to defend is determined by the allegations in the “suit” filed against the insured. Does a..
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September 3, 2019

When Pre-Litigation Mediation Fails Does it Become a Race to the Courthouse?

Josh Fruchter
We hope all of our readers have had an enjoyable summer, and relaxing Labor Day weekend. Alas, the wheels of justice ground well into August, and courts have continued to issue interesting mediation-related decisions. We have previously written (here and here) about decisions addressing dispute resolution clauses that obligate parties..
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August 22, 2019

Pros and Cons of Caucus Versus Joint Session in Business Dispute Mediation

Josh Fruchter
Caucus versus joint session. Every mediator has a different view on the subject. Some rely heavily on caucus, and some try to avoid it. Some recommend a joint session followed by caucus while others advocate the reverse. We are writing about this topic because we recently came across a blog..
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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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