October 6, 2019

Is Your Pre-Litigation Mediation Clause Well-Drafted? A Cautionary Tale from Hawaii

Josh Fruchter
Given the increasing popularity of pre-litigation mediation clauses, we continue to keep an eye out for new decisions addressing enforcement of such clauses.  In a past post, we discussed the importance of fixing deadlines to both commence and complete pre-litigation mediation. A Hawaii federal court recently held that the relevant..
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September 23, 2019

Revisiting the Insurer’s Decision Tree Analysis Discussed in Last Tuesday’s Blog Post

Josh Fruchter
Last Tuesday, we published a blog post discussing how a flawed decision tree analysis led an insurer defending a wrongful death action to reject reasonable settlement offers, and then get hit with a nearly $40 million verdict and a $7.2 million judgment for breaching a Texas state law duty to..
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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 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 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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