Josh Fruchter

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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…
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…
Impasse — it’s the bane of all mediators. We know it when we see it. The gap between the parties seems unbridgeable. Neither side is willing to make a move. Emotions are running high, and both sides are ready to walk. What can mediators do to prevent negotiations from reaching an impasse? And if parties reach an impasse, what can mediators do to break it? First, persistence is key — mediators should never give up.…
When parties reach a settlement at a mediation, and memorialize their agreement in writing, the obvious expectation is that both parties will perform their obligations. Of course, it doesn’t always work out that way, and so the writing should also address the remedies for any breach. There are essentially two choices: if one party fails to perform, is the non-breaching party’s remedy simply to enforce the agreement? Or does a material breach “blow up” the…
Term sheets, MOU’s and other forms of abridged settlement agreements hastily drafted and executed at the conclusion of a mediation typically only contain the material terms of the settlement (with the parties contemplating that a more detailed document will be prepared at a later date). Given the time constraints under which such agreements are prepared, and the lack of formalities (many such agreements are handwritten), it should not come as a surprise that material terms…
In this latest post on applying Talmudic principles in mediation, we discuss the Talmud’s view of mediation as an affirmative moral obligation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Moral duties are actions we are not legally obligated to perform, but still feel obliged to undertake out of a sense of benevolence, justice or equity. An example is charity.…
Two of the primary approaches to mediation are facilitative and evaluative. Under the facilitative approach, the mediator orchestrates a process that facilitates communication between the parties concerning their respective interests and concerns. The mediator typically refrains, however, from sharing an opinion concerning the strengths or weaknesses of either side’s positions. In contrast, under the evaluative approach, the mediator will also provide each party with a neutral assessment of the strengths and weaknesses of their respective…