Effective mediation techniques

July 2, 2019

Using a High Low Agreement to Counter Confirmation Bias in an Insurance Mediation

David Albalah
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),..
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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 26, 2019

Recognizing and Addressing Confirmation Bias in Mediation

Josh Fruchter
As defined by the Farnam Street website, confirmation bias is the “tendency to cherry-pick information that confirms our existing beliefs or ideas.” In other words, after making a decision or reaching a conclusion in which we have a vested interest, we tend to interpret any new evidence in a manner..
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June 21, 2019

Mediator Proposal Best Practices

Josh Fruchter
On Tuesday, June 18, 2019, a group of nine California counties and cities announced that they and PG&E had accepted a mediator’s proposal of $415 million to resolve their claims against PG&E arising out of the 2017 North Bay fires. The money will be paid pursuant to the confirmed Chapter..
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June 20, 2019

When Memorializing a Mediated Settlement, Empower the Mediator to Resolve Any Disputes Over Language

Josh Fruchter
To avoid any issue with the enforceability of an agreement in principle signed at the conclusion of a mediation, parties should agree in advance that if negotiations to memorialize the settlement in a more formal agreement break down, the mediator shall resolve any remaining disputes over language or otherwise. This..
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June 14, 2019

The Mediator’s Proposal: If Both Sides Say Yes, Make Sure It’s Binding

Josh Fruchter
An important technique in any mediator’s toolkit is the mediator’s proposal. Typically used as a measure of last resort to avoid litigation after all other options for compromise have been exhausted, a mediator’s proposal recommends a dollar number (and perhaps other terms) to settle the dispute, and fixes a deadline..
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June 11, 2019

Using Charitable Donations to Resolve Disputes in Mediation

Josh Fruchter
I’ve occasionally read about disputes that were resolved in whole or in part through a charitable donation. I recently had an opportunity to use this technique to mediate a dispute between a landlord and a tenant over the condition of the premises vacated by the tenant at the conclusion of..
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June 7, 2019

Celebrity Name Game: How Do You Break an Impasse Over Price at Mediation?

David Albalah
Breaking an impasse at mediation over price requires creativity. But before a mediator can make progress, he or she needs to uncover and understand the unspoken psychological, emotional, legal or other obstacles that are preventing either or both of the parties from making any further moves. In one case I..
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June 5, 2019

From the Talmud: How Can a Mediator Turn Emotional Outbursts Into Opportunities for Resolution?

Josh Fruchter
One of a mediator’s most challenging tasks is managing emotional, high conflict parties. How do you calm them down? Enforce limits on their conduct? Is there value to letting them vent? There are many opinions on the subject. In a previous post, I promised to draw insights from the Talmud..
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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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