Guess Who’s Coming to Mediation? The Problem of Unwanted Attendees in Mediation
The rules governing attendance at mediation are not widely known, and there are some commonly held misunderstandings that require debunking. There are few things more disruptive than disputes over participation and authority. In the worst-case scenario, the parties have not communicated in advance, and an unwanted someone unexpectedly appears at the start of mediation to […]
Your Early Holiday Stocking Stuffer: The Silver Dollars I Picked Off Your Floor
I want to offer you a valuable stocking stuffer for next year. For most lawyers billing hourly, the smallest profit generator is the billable unit recorded as one-tenth of an hour – the “point-one.” When you engage in any large task, there is a small amount of lead-up time, and a transition-away time from that […]
Negotiating in the Crosswind of Settlement Desire
The desire to settle during mediation can be mutual, essentially balanced and shared, or highly unbalanced or asymmetric. As a mediator, I want to find out which side more strongly feels the need to settle. I seek to press upon the side least desirous of settling. I try to move a party or their lawyer […]
Best Practices for Mediating Catastrophic Injury and Large Losses in Transportation-Related Claims
Transportation claims suffer from frequency and severity. It stands to reason we should become more expert at resolving these cases short of trial. Catastrophic injury and large loss claims require a level of concerted activity prior to mediation that is sometimes underappreciated or overlooked. Here are ten best practices to incorporate into your premediation routine […]
You Can’t Make Handprints When the Concrete is Set: The Vital Need for Exchange of Premediation Submittals
There are no timetables, deadlines or rules governing the conduct of the parties leading up to mediation. The parties prepare independently of each other. Many times, there is little or no “premediation” discussion about settlement except, perhaps, some throw-away demands and offers which have little chance of settling the case. Because the parties are preparing […]
If You Read Only One Thing About Mediation, Read This: The Critical Role of the ‘Henry Term Sheet Rule’ in Mediation
Some may have experienced what I call the “Friday afternoon problem” in mediation. After a long day, you have hammered out the four corners of a deal. Everyone can summarize the deal on a couple of pages, but the final settlement document will require additional language including, for example, mutual releases, some carve-outs, amendments to […]
Mediation is the Food Truck of Dispute Resolution
Research in a variety of jurisdictions reveals that approximately one percent of filed civil cases reach trial, maybe less in some states.[1] Commentators note several likely causes: Loose discovery rules, stricter pleading, heightened summary judgment standards, and motion practice have reduced the “triable” issues. But, of course, the time and expense needed to try a […]
The 30/30 Piece on Mediation Advocacy
When I was a young associate and handling mediations on my own, I really didn’t get it. I mediated too late in the life of the case. I had no relationship with opposing counsel. Mediation advocacy is a lot like sex – for most people you sort of figure it out as you go along. […]
The Road to Uncovering the Hidden Truth in Mediation
If I have reasonably competent lawyers with equally motivated clients with access to the same information (and those are not trivial caveats), isn’t it fair to believe they will be looking at the same playing field albeit from different sides? Isn’t it reasonable to believe the case valuations on both sides should be like two […]
Special Problems in Settling Professional Liability Claims
In the context of mediation and settlement, professional liability claims present some challenges that warrant special consideration. Most professional liability policies contain settlement control clauses. Such clauses require the consent of the insured to settle, and if consent is withheld there are potential costs and exposures presented to the insured for failing to accept a […]