Henry’s Ten Dirty Words You Can’t Say During Mediation
As stated in my engagement letter for mediation, I encourage parties to share position statements or letters before mediation begins. These are not intended for me, but more so for the disputants. The premediation letters should be written for the eyes of the “other” client, and can begin to manage expectations, clarify liability, distinguish the […]
Surveys Can Prove Anything, Even the Truth: A Review of Online Mediation
I conducted an informal survey of mediators who belong to the Executive Council of the ADR Section of the Florida Bar asking them two questions. What percentage of mediations are you conducting remotely, and as a percentage of effectiveness how would you rate online mediation vis-à-vis in-person session? The answers were what I anticipated, and […]
The Price of Poker Just Went Down: How Smart Defendants Leverage Good Settlements in Catastrophic Cases.
This is the second part of a two-piece article. Last month, we focused on ways claimants can maximize recovery in catastrophic damage cases. This month, we focus on defense strategies for leveraging a good settlement at mediation. Whether you are defending a business, a contractor, physician, manufacturer, retail store, or trucking company, representing at fault […]
Maximizing Value: A Mediator’s Message to Claimant’s Counsel
This is the first of a two-part article on litigating and settling large exposure cases. As a litigator, I defended several products, premises, and aviation accidents resulting in death or catastrophic personal injury. Later I litigated trademark, construction, and other claims with seven and eight figure damage demands. My experience also suggests that adding one […]
The Uniqueness of Litigators and the Light Born of Mediation
I was thinking about my mediation clients, meaning the lawyers, and how the litigator’s role differs from other professions. Litigators are in conflict every day, every moment, for their entire careers. Can you identify another job that at its core involves conflict? The job ends when the conflict ends. The job depends upon antagonists, a […]
The Mediator’s Wish List
Now that the holiday season is in full swing, you are probably seeking holiday gift-giving lists. Most mediator wish lists are similar. Here is what most mediators would like to receive in case you are still shopping for the holidays. Mediators would like to receive a phone call or letter from you explaining what the […]
The Convention of the Witch and the Princess in Zoom Mediation
By now, most of you have participated in a remote mediation, most likely on a Zoom platform. I want to talk about attendance via Zoom and the psychology of communication and helping your cause by managing your virtual appearance. In Western literature and film, there are conventions associated with appearance and sound when depicting good […]
Mediation Advocacy as a Competitive Advantage
In what is a difficult time for providing legal services, law firms should be rethinking how they position themselves and obtain a competitive advantage over rivals. I have longed believed that business litigation and insurance defense firms have failed to see mastery of ADR and, in particular, mediation advocacy, as a branding tool. Why isn’t […]
A Funny Little Thing About Authority in Mediation
Florida has an attendance requirement for insurance carrier representatives tied to the policy limits or the last demand by the claimant. It is Rule 1.720(b). There are some problems, pragmatic and philosophical, with the existing authority rules. Suppose in a premises liability case the insured, its claims representative, and its counsel have round-tabled before mediation. […]
Mediation Malpractice and Other Oddities
I had a thought-provoking conversation with a marketing representative of a carrier who writes lawyer’s malpractice insurance. We were pondering the notion of malpractice at mediation. Is there such a thing? Yes, and it is more common and more subtle than you might think. The most obvious case of malpractice is when the mediator or […]