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In this latest post applying Talmudic principles in mediation, we discuss a psychological principle known as the “endowment effect” and its impact on negotiations during mediation (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). Our Psychological Attachment to Objects We Own There is a ritual law that prohibits carrying objects in a public domain on the Sabbath (readers involved with…
Given the increasing popularity of pre-litigation mediation clauses, we continue to keep an eye out for new decisions addressing enforcement of such clauses.  In a past post, we discussed the importance of fixing deadlines to both commence and complete pre-litigation mediation. A Hawaii federal court recently held that the relevant contractual language must also unambiguously state that mediation is a condition precedent to litigation. Hans Franke et al. v. Julia Yates, et al., 2019…
In this latest post exploring mediation lessons from the Talmud, we discuss the components of an effective apology (the Talmud being an ancient Jewish legal text compiled around 500 C.E. that is a primary source of Jewish law and philosophy). The Jewish New Year is four days away. The Talmudic Sages designated this time of the year in the Jewish calendar for reflection and introspection, encouraging individuals to carefully scrutinize their behaviors, character traits,…
Last Tuesday, we published a blog post discussing how a flawed decision tree analysis led an insurer defending a wrongful death action to reject reasonable settlement offers, and then get hit with a nearly $40 million verdict and a $7.2 million judgment for breaching a Texas state law duty to accept reasonable offers within policy limits. We concluded that the insurer’s decision tree analysis failed to prevent that fiasco primarily because the tree’s probabilities were…
We have previously discussed the growing trend towards implementation by hospitals of Communication and Resolution Programs (CRP). To recap, CRP’s aim to foster transparent communication with patients and their families following an adverse medical event, including: prompt disclosure of medical error; an explanation of why the medical error occurred, and what steps are being taken to prevent recurrences; an apology; and an upfront and fair offer of compensation, if appropriate in light of the cause…
The dynamic present in personal injury mediations is fairly straightforward. The defendant’s insurer (or the defendant, if self-insured) will estimate the risk of a jury verdict for the plaintiff on liability, and discount the likely damages by that risk to determine a reasonable settlement range. On the other side of the table, the plaintiff’s attorney will try to raise the settlement range by persuading the insurer that the risk of liability, and/or the magnitude of…
The dynamic present in personal injury mediations is fairly straightforward. The defendant’s insurer (or the defendant, if self-insured) will estimate the risk of a jury verdict for the plaintiff on liability, and discount the likely damages by that risk to determine a reasonable settlement range. On the other side of the table, the plaintiff’s attorney will try to raise the settlement range by persuading the insurer that the risk of liability, and/or the magnitude of…
The popularity of pre-litigation mediation clauses continues to grow. Such clauses are appealing because they provide parties with a window of opportunity to settle a dispute before becoming embroiled in litigation and incurring all of the attendant costs. Such opportunities are especially valuable where a dispute arises out of an existing relationship — pre-suit mediation can preserve a relationship that might otherwise be permanently wrecked by the adversarial nature of litigation. That said, pre-litigation mediation clauses need…
Nearly all disputes in mediation have both a financial and an emotional component. To paraphrase mediator Julie Denny*, the chief executive of a manufacturer is not just angry because the company lost money due to defective parts; she also feels betrayed because a longstanding supplier whom she trusted cut corners at her expense. A discharged employee asserting a claim for age discrimination is not just upset because he has lost his livelihood; he also feels…
Standardized commercial general liability (CGL) insurance policies impose a “duty to defend” that obligates insurers to defend insureds against “suits” seeking damages for claims potentially covered by the policy. The existence of a duty to defend is determined by the allegations in the “suit” filed against the insured. Does a mediation qualify as a “suit” under a standardized CGL policy? That question was recently litigated in Illinois state court. See Illinois Tool Works, Inc. v.…