It’s human nature to engage in an emotional exhale after reaching an agreement in principle to settle a long-standing or hard-fought dispute. While doing so is all well and good, it is critical that you don’t let that deter you from exercising extreme focus on documenting that settlement in a carefully crafted agreement. Indeed, as the plaintiff in Zvi Construction v. Levy found out a few weeks ago, failing to do so can leave your client in a position where it is unable to obtain the fruits that it rightfully deserves.… Keep reading
While it may not be standard practice when drafting contracts to include a clause stating that “if litigation between the parties ensues the prevailing party will recover its legal fees,” such provisions do appear in a variety of contracts from time to time. A recent First Circuit opinion, Thompson v. Cloud, involves such a clause and also serves as a good reminder that it can be dangerous to take lightly even seemingly simple provisions in an agreement.… Keep reading
Over three prior posts on the subject of mediation, I have discussed what mediation is and is not, explained the process of how mediation works, and most recently, examined under what circumstances it makes sense to mediate. Here, I will conclude this series of mediation posts by breaking down how, once you reach an agreement in principle, you limit the risk of losing it.
After a very long day of back and forth with your mediator, you authorize one last proposal for the mediator to take to the other side. The mediator comes back 20 minutes later and tells you that your offer has been accepted. The mediator then invites all of the parties and their counsel into the same conference room in which you began the mediation process nine hours earlier, to go over the terms. One by one, he goes through each of the six settlement terms, and each time both sides indicate that they agree.
While you do and should feel a sense of satisfaction (even if the settlement is not exactly what you had hoped it would be), do not think for one minute that the process is over. Indeed, one of … Keep reading
While different types of cases get resolved through mediation every day, mediation is not likely to be successful in every case. As a general rule, when parties agree to mediate, it is implied that they are willing to at least consider some sort of compromise or “outside the box” resolution to the dispute (it is for this reason that I believe court mandated mediation often leads to nothing more than a waste of time and money). Part of the reason for this is that no matter how reasonable a party’s position may be, mediators are wired to be impartial, and telling one party from the outset that it must capitulate goes against mediator DNA. Another reason for this is that all but the most inexperienced litigators know that mediation implies some sort of compromise. Thus, if a party claims at the mediation that it will not compromise one bit, such a position is not likely to be taken seriously – even if it is genuine. Likewise, a … Keep reading
Over the past 15 years, Alternative Dispute Resolution (ADR) has become all the rage as parties try to limit the time and expenses they might expend if forced to litigate disputes in court. One of the ADR mechanisms whose use has exploded in growth is mediation. Indeed, it seems that every month or two I see an announcement that a recently retired judge is joining one of the big mediation firms, such as JAMS, or is starting his or her own mediation practice.
While I often engage in mediation as a way to try to resolve my clients’ disputes, it is important to understand what mediation is, and what mediation is not, so that you can evaluate whether it might be an appropriate vehicle to use in an effort to settle a particular dispute that you or your business might have.
Although people often confuse mediation with arbitration, the only real similarity is that parties generally cannot be forced to either mediate or arbitrate a dispute; they must voluntarily agree to engage in either process. Substantively, however, mediation could not be more different than arbitration.… Keep reading