Publications

MEDIATOR SETTLEMENT RECOMMENDATIONS – BE CAREFUL WHAT YOU ASK FOR!

Posted on Feb 10, 2017

During the course of negotiations, it is very common for one or more of the parties to ask a Mediator, "So, what do you think the case is worth?" This Mediator has a consistent response to that often-heard inquiry, "The case is worth what it settles for." Although that response may, at first, seem a bit glib, the inquiring p...

EXCHANGING THE MEDIATION BRIEF: IS IT IN YOUR BEST INTEREST?

Posted on Feb 10, 2017

The submission of a well-crafted brief prior to the mediation is an excellent opportunity to give the mediator a real preview of your position in advance. It can be used to educate, persuade, and create a roadmap for settlement negotiations. It is to your benefit to submit same as it will save time at the mediation and creat...

MORE CHANGES ARE COMING TO THE COMMERCIAL DIVISION

Posted on Feb 10, 2017

During the last month, John W. McConnell, Counsel, to Chief Administrative Judge Gail Prudenti, set forth five proposed changes to how the Commercial Division operates - both substantively and procedurally. Many of these changes were first floated to the public in the Report to Chief Judge Jonathan Lippman by his Task Force ...

WHAT'S NEW IN THE COMMERCIAL DIVISION

Posted on Feb 10, 2017

In 2012, Chief Judge Jonathan Lippman created the Task Force on Commercial Litigation in the 21st Century to provide practical proposals that would have a lasting impact on commercial litigation in New York. The Task Force had an interdisciplinary make up of practitioners, academics and current and retired judges of the Comm...

GETTING THE LANGUAGE OF ADR RIGHT IN EMPLOYMENT ARBITRATION PROVISIONS

Posted on Feb 10, 2017

Employers who use The Alternative Dispute Resolution process need to review and change their arbitration provisions regularly. Changes in statutes and case law provide a continuing challenge, as a recent ruling indicates. A decision by the Fifth Circuit Court of Appeals dealt with the validity of arbitration provisions of...

MAKING THE MOST OF THE JOINT SESSION AT A MEDIATION: 7 DO'S AND DONT'S

Posted on Feb 10, 2017

Here are some do's and don'ts which lead to a more effective joint session of your mediation: Do engage in a realistic discussion of the strengths and weaknesses of your case. Do not spend time posturing to impress or intimidate. Do recognize that every case is unique. Do not lump your case in with similar matter...

ADR = ALTERNATIVE DISCOVERY RESOLUTION – REVISITED

Posted on Jan 01, 2017

On a dark and stormy morning in Lenox Massachusetts, the attendees at the New York State Bar Association's spring meeting of the Commercial and Federal Litigation Section were greeted by an all-star panel discussing "Alternative Discovery Resolution." Though the panel's topic spoke to resolving "normal" discovery problems, i...

DEMONSTRATING STRENGTH BY ACKNOWLEDGING WEAKNESS IN MEDIATION

Posted on Jan 01, 2017

Most trial lawyers and insurance company adjusters are "old pros" when it comes to mediating a personal injury case. But, if old dogs can learn something new, then re-thinking the mediation of personal injury cases may prove helpful. Let's assume the following fact pattern: A worker was injured in a fall while descendi...