July 31, 2019

Mediation Lessons From the Talmud: Is Mediation of Disputes a Moral Duty or a Utilitarian Exercise?

Josh Fruchter
In this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Moral duties are actions we are..
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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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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 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 3, 2019

The Merits of Med-Arb: If Mediation Fails to Resolve a Dispute, Should Parties Let the Mediator Arbitrate?

Josh Fruchter
A Massachusetts federal court recently addressed the circumstances under which an individual who served as a mediator in an unsuccessful mediation can subsequently decide the dispute as an arbitrator — a process known as “med-arb.” Spruce Envtl. Techs., Inc. v. Festa Radon Techs., Co., 370 F. Supp. 3d 275 (D...
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May 21, 2019

Can a Mediation Party Who is an Attorney Speak With a Non-Attorney Counterparty Outside the Presence of the Counterparty’s Counsel?

Josh Fruchter
It’s a cardinal rule that an attorney cannot meet privately with a party represented by counsel outside the presence of the party’s attorney. But what if an attorney is a party to a mediation, and the counterparty is a non-attorney represented by counsel? Can the attorney meet one-on-one with the..
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May 20, 2019

Does a Prior Relationship With a Party Impair a Mediator’s Neutrality? California Says No

Josh Fruchter
Few fans of the hit television series Law & Order are likely aware that the show gave rise to a real-life California divorce drama in which mediation played a central role. In August 2003, the creator of Law & Order, Richard Wolf entered into a marital settlement agreement (MSA) with..
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