January 7, 2020
Local rules implementing alternative dispute resolution procedures typically provide that mediation attendees must have “settlement authority.” But what exactly does that term mean? Is attendance by outside counsel enough if someone else with full settlement authority is just a phone call away? A federal magistrate judge recently explored these questions..
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Tags:September 23, 2019
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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Tags:September 17, 2019
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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Tags:September 3, 2019
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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Tags:July 22, 2019
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 2, 2019
My colleague Josh recently blogged about strategies for handling confirmation bias in mediations. He mentioned I had used a high low agreement to successfully address confirmation bias in an insurance-related mediation. I’ll discuss that case in this post. A start-up title insurance agency (funded by a prominent private equity firm),..
Tags:June 4, 2019
When disputes enter into mediation, there are meetings and communications between the parties and the mediator, but after a mediation session ends, the parties may continue to negotiate independently by meeting and communicating between themselves outside the mediator’s presence. When and to what extent are those independent negotiations (conducted without..
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Tags:May 10, 2019
With nearly 30 years of experience mediating business conflicts, it remains my firm conviction that to consistently reach mutually beneficial settlements of commercial disputes, the mediation process must be structured to enable business decision makers to address the underlying business interests of the dispute. One of the expectations emerging from..
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