May 29, 2019

Why Didn’t Amazon and New York City Mediate? A Pitch for Transactional Mediation

Josh Fruchter
It seemed a match made in heaven. On November 13, 2018, after over a year of entertaining bids, proposals and presentations from over 100 cites, Amazon announced that it had selected the Long Island City, Queens neighborhood in New York City as one of two locations for its new headquarters..
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May 28, 2019

Principles of Cognitive Dissonance at Play in Mediation

Josh Fruchter
Psychologists tell us that humans prize harmony between their actions and beliefs. Accordingly, when we act contrary to a strong belief, alarm bells go off in the brain, and we feel mental discomfort, or “dissonance.” To eliminate this tension, we can either abandon the belief or change the behavior. To..
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May 24, 2019

New Federal Court Decision Illustrates the Use of High-Low Agreements in Mediation

Josh Fruchter
The use of high-low agreements is a familiar mediation technique. In a nutshell, a high-low agreement represents a “partial” settlement of a dispute under which the parties to a mediation agree to a minimum recovery for the plaintiff, and a maximum payout by the defendant, and then proceed towards final..
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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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May 16, 2019

IBM and Groupon Settle Their Patent Litigation by “Expanding the Pie” Mediation Style

Josh Fruchter
“Expanding the pie” is a mediation technique that expands resolution of a dispute beyond purely distributive issues (i.e., how much money A pays to B) to other exchanges of value that create “win-win” solutions for the parties. “Pie expansion” works because, in most conflicts, it’s usually never “just about the..
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May 10, 2019

Focus on Business Interests: The Case of the Sinking Warehouse

David Albalah
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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May 9, 2019

Encouraging Empathy in Mediation: Just Because You Are Right Does Not Mean I Am Wrong

Josh Fruchter
For the inaugural post on the Merge Mediation Group blog, I’d like to briefly discuss the role of empathy in mediating disputes where there is a strong emotional component. That is, in disputes where emotions play a central role, what strategies can mediators employ to encourage disputants to step into..
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