Caucus versus joint session. Every mediator has a different view on the subject. Some rely heavily on caucus, and some try to avoid it. Some recommend a joint session followed by caucus while others advocate the reverse. We are blogging about this topic because we recently came across a blog post by bankruptcy lawyer and mediator Donald Swanson, which contends that joint sessions are more effective than caucus when mediating business disputes that arise out…
The existence and scope of a federal mediation privilege remains unclear. Among the Circuit Courts, the strongest and clearest endorsement of a federal mediation privilege is the Second Circuit’s decision in In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011). Yet, in a somewhat surprising about-face, a federal magistrate judge in the Southern District of New York recently held that the mediation confidentiality standard announced in Teligent does not apply to private mediations not…
The Ninth Circuit held last week that mediation-related communications between two parties on the same side of the table are inadmissible under California’s mediation confidentiality statute in subsequent litigation between those two parties. Apollo Education Group, Inc. v. National Union Fire Ins. Co., 2019 WL 3822322 (9th Cir. Aug. 15, 2019). As discussed below, Apollo raises some interesting questions concerning the reach of mediation confidentiality. The Broad Scope of California’s Mediation Confidentiality Statute As we have previously…
Just over a week ago in Singapore, on August 7, 2019, 46 countries — including economic powerhouses such as China, India, South Korea and the United States — signed the U.N. Convention on International Settlement Agreements Resulting from Mediation (a/k/a the Singapore Mediation Convention) (“Convention”). What’s the big deal? By way of background, companies have resisted using mediation to settle cross-border commercial disputes because of the practical difficulty of enforcing any settlement reached through mediation.…
As mediators, we need to remain informed about new and innovative approaches to dispute resolution in niche contexts, so we can analyze the reasons for their success, and advocate for their broader use in other arenas where they may also prove helpful. One such development is the growing adoption by hospitals of what are known as communication and resolution programs, or CRP’s, which are designed to effectuate a systematic approach to resolving claims arising out…
In this latest post on applying Talmudic principles in mediation, we discuss two vital mediation techniques — encouraging empathy and exhibiting curiosity — that emerge from a Talmudic legend concerning Alexander the Great (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Chronologically, Alexander the Great conquered the Land of Israel shortly after the construction of the Second Jewish Temple. The…
The United States Court of Appeals for the Fifth Circuit has issued an opinion holding the issue of class arbitration is a gateway matter for the courts to decide.  In 20/20 Communications, Inc. v. Crawford, No. 18-10260 (5th Cir., July 22, 2019), a number of employees signed 20/20 Communication’s arbitration agreement as a condition of employment.  The terms of the agreement required each employee to individually arbitrate any future claims against the company. Several…
As children, we were taught by our parents and teachers to take responsibility for our actions and apologize if we damaged someone’s property or hurt someone’s feelings. See Professor Jonathan Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999). Yet, ironically, as adults — if we cause damage and then consult an attorney — the advice we are likely to get is that apologizing would be a mistake since a court may…