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..
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..
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..
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..
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..
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..
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,..
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..
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..
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..