June 30, 2019

Texas Court Says Express Consent is Key if You Want Your Mediator to Arbitrate Disputes That Arise When Memorializing a Settlement

Josh Fruchter
We previously blogged about the process known as “med-arb” under which the parties to a failed mediation agree to retain the mediator to arbitrate their dispute. We also highlighted a particular application of med-arb under which the parties to a mediated settlement empower the mediator to arbitrate any disputes that..
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June 27, 2019

New Jersey Court Enforces Agreement to Mediate Workplace Disputes

Josh Fruchter
There are many benefits to resolving workplace disputes through mediation, including controlling legal expenses, avoiding adverse publicity, and maintaining employee morale. To realize these and other benefits of workplace mediation, many companies ask new employees to sign agreements to mediate and/or arbitrate any workplace disputes that may arise after employment..
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June 26, 2019

Recognizing and Addressing Confirmation Bias in Mediation

Josh Fruchter
As defined by the Farnam Street website, confirmation bias is the “tendency to cherry-pick information that confirms our existing beliefs or ideas.” In other words, after making a decision or reaching a conclusion in which we have a vested interest, we tend to interpret any new evidence in a manner..
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June 24, 2019

How Mediators Can Add Value to the Estate Planning Process

Josh Fruchter
We recently wrote about how mediators can help family business attorneys navigate the professional risks posed by disputes within family-held enterprises. The potential for family conflict is also present in many estate plans, and predictably, estate planning attorneys regularly encounter disputes between family members over inheritance, succession and related issues...
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June 21, 2019

Mediator Proposal Best Practices

Josh Fruchter
On Tuesday, June 18, 2019, a group of nine California counties and cities announced that they and PG&E had accepted a mediator’s proposal of $415 million to resolve their claims against PG&E arising out of the 2017 North Bay fires. The money will be paid pursuant to the confirmed Chapter..
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June 20, 2019

When Memorializing a Mediated Settlement, Empower the Mediator to Resolve Any Disputes Over Language

Josh Fruchter
To avoid any issue with the enforceability of an agreement in principle signed at the conclusion of a mediation, parties should agree in advance that if negotiations to memorialize the settlement in a more formal agreement break down, the mediator shall resolve any remaining disputes over language or otherwise. This..
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June 19, 2019

Mediation Lessons From the Talmud: Leveraging Reciprocation Bias in Mediation

Josh Fruchter
The ancient Jewish legal text known as the Talmud (Tractate Baba Metzia 32b) records the following rule: if Mr. A simultaneously encounters a friend who requires assistance unloading a burden from his animal, and an adversary who needs help loading a burden on to his animal, A is obligated to..
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June 17, 2019

Oral Class Action Settlement Reached Through Mediation Unenforceable Because Parties Did Not Agree on Attorneys’ Fees and Other Material Terms

Josh Fruchter
A recurring issue in post-mediation litigation is whether a barebones term sheet or other agreement in principle reached at the conclusion of mediation remains binding and enforceable even if subsequent negotiations to document the settlement in a more detailed formal agreement break down. We discussed this issue in an earlier..
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June 14, 2019

How Mediators Can Help Family Business Attorneys Avoid Professional Risk by Playing the Role of Neutral Peacemaker

Josh Fruchter
As a practice area, representing family businesses offers clear benefits. If sizeable, such enterprises can generate a steady stream of transactional and litigation work. Collaborating closely with the company’s and family’s other advisors such as accountants, insurance brokers and investment professionals can lead to referrals. There is also the opportunity..
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June 14, 2019

The Mediator’s Proposal: If Both Sides Say Yes, Make Sure It’s Binding

Josh Fruchter
An important technique in any mediator’s toolkit is the mediator’s proposal. Typically used as a measure of last resort to avoid litigation after all other options for compromise have been exhausted, a mediator’s proposal recommends a dollar number (and perhaps other terms) to settle the dispute, and fixes a deadline..
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