June 17, 2019

Oral Class Action Settlement Reached Through Mediation Unenforceable Because Parties Did Not Agree on Attorneys’ Fees and Other Material Terms

Josh Fruchter
A recurring issue in post-mediation litigation is whether a barebones term sheet or other agreement in principle reached at the conclusion of mediation remains binding and enforceable even if subsequent negotiations to document the settlement in a more detailed formal agreement break down. We discussed this issue in an earlier..
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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 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 12, 2019

The Social Network: Lessons from the Mediation That Resolved the Dispute Over the Founding of Facebook

Josh Fruchter
Those who saw the award-winning film, The Social Network, are familiar with the dispute between Mark Zuckerberg and the Winklevoss twins (and their business partner, Divya Narendra) over the founding of Facebook. What many fans of the movie might not be aware of is that the Zuckerberg-Winklevoss dispute was resolved..
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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

Mediation Lessons 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 4, 2019

Are Negotiations Between Parties During the Mediation Process Without the Mediator’s Participation Protected by the Mediation Privilege?

Josh Fruchter
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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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 30, 2019

Mediation Lessons From the Talmud: Four Lessons From the Disputes of the Academies of Hillel and Shammai

Josh Fruchter
The Talmud is an ancient Jewish text (compiled around 500 C.E.) that is a primary source of Jewish law and philosophy. Its pages are filled with debates between various Sages concerning Jewish ritual (e.g., Sabbath, festivals) and civil law (e.g., contracts, torts, marriage, divorce), as well as numerous philosophical and..
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