Publications

1. Always submit a brief. 2. Use the brief to educate the mediator and your adversary as to your position in advance of the mediation. 3. Use the brief to maximize your use of time and to avoid lengthy arguments during the joint session. 4. Always exchange the brief with your adversary. 5. Exclude from the brief any ...

Having been a mediator in the Court system and now in the private sector with NAM (National Arbitration and Mediation), I have come to regard private mediation in a new light and with a new understanding about what a mediator can and cannot do, and what mediation can accomplish. Of course, the old rules that were followed in...

Assume that you are involved as a plaintiff or a defendant (carrier) in a serious injury case and that the injured party has collected workers' compensation so the issue of a lien payback will be part of any settlement. Also assume that the plaintiff may have sought, or is receiving social security disability payments or wil...

Although risk transfer is sometimes viewed as analogous to questions concerning a party's potential liability and exposure, the reality is that risk transfer - perhaps, more aptly described as liability transfer - is the true "money game." A successful transfer of a party's defense and indemnification at the start of a lawsu...

"Tense" can be a good thing. The 2nd Circuit just reminded us that your arbitration agreements need to be clear as to the point in time when compulsory arbitration clauses are effective. The "tense" of your verbs matters. In Allstate v. Mun, Docket No. 13-1424-cv. (decided May 6, 2014), the Court allowed Allstate to proce...

1. Prepare the client for the mediation much in the way you prepare them for trial. 2. Consider how you will manage their expectations. 3. Give them a realistic analysis of the strengths and weaknesses of their case in advance. 4. Discuss the mediation process in detail. 5. Explain the mediator's background and r...

Do give consideration in advance as to what confidential information will be revealed to the mediator in the breakout session. Do not attempt to rush the mediator into giving an evaluation of the merits of the case. Do give the mediator ample opportunity to speak to both sides. Do not become mired in arguments as to...

Resolving a dispute through Mediation on the eve of trial presents a unique challenge to the Mediator because the parties' counsel are in the "trial zone" - the zone in which settlement no longer is seen as the goal and, instead, the focus is solely on prevailing at trial. When in "the zone", both sets of counsel may have di...

When football players at Northwestern University launched a bid to unionize last year, and a regional director at the National Labor Relations Board ("NLRB") ruled that the players are employees under the control of the university, a veritable "Pandora's Box" was opened that could, ultimately, end collegiate athletics as we ...

During my fifteen years as a Judge, I have heard the testimony of hundreds of witnesses in all types of proceedings. As a trial attorney in private practice, I prepared a great number of witnesses to testify. Even with the best preparation, my father, who was a great trial lawyer, would say he would die a thousand deaths whe...