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 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 28, 2019

When Does Evaluative Mediation Cross the Line from Neutral Analysis to Legal Advice?

Josh Fruchter
Two of the primary approaches to mediation are facilitative and evaluative. Under the facilitative approach, the mediator orchestrates a process that facilitates communication between the parties concerning their respective interests and concerns. The mediator typically refrains, however, from sharing an opinion concerning the strengths or weaknesses of either side’s positions...
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July 22, 2019

Can a Failed Insurance Mediation Trigger the Start of a Statute of Limitations?

Josh Fruchter
A recent Ninth Circuit decision addresses an interesting question in the context of an insurance dispute: can a failed mediation trigger the start of a statute of limitations? See Gallahan v. Philadelphia Indem. Ins. Co., No. 18-35057, 2019 WL 2595502, at *1 (9th Cir. June 25, 2019). On February 5,..
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July 18, 2019

Using Mediation Preemptively to Resolve Workplace Disputes

Josh Fruchter
We have previously advocated that employers use mediation preemptively to quietly resolve discrimination claims and other workplace disputes before they escalate into litigation. The fact pattern described in a recent Seventh Circuit decision validates that recommendation. See Fields v. Bd. of Educ. of City of Chicago, No. 17-3136, 2019 WL..
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July 11, 2019

Should Fee Shifting Provisions Condition Recovery of Attorneys’ Fees on Participation in Mediation Before a Lawsuit is Filed?

Josh Fruchter
To deter parties from taking frivolous positions in connection with contractual relationships, agreements often contain fee shifting provisions that entitle a prevailing party to recover reasonable attorneys’ fees in any litigation arising under the agreement. The downside of fee shifting provisions, of course, is that they may deter parties from..
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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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