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The Irish poet and playwright, Oscar Wilde, famously observed how “life imitates art far more than art imitates life.” About a year ago, a colleague introduced me to the world of “cooperative” board games, which stress cooperation over competition. There are no individual losers or winners. Instead, players work together as a group to achieve the objective of the game. If the group succeeds in attaining their common goal, everyone wins, and if the group…
Local rules implementing alternative dispute resolution procedures typically provide that mediation attendees must have “settlement authority.” But what exactly does that term mean? Is attendance by outside counsel enough if someone else with full settlement authority is just a phone call away? A federal magistrate judge recently explored these questions in a mediation arising out of an insurance coverage dispute. Long v. Am. Family Mut. Ins. Co., S.I., 2019 WL 5819968 (D. Kan. Nov. 7,…
The Class Action Fairness Act (“CAFA”) provides expanded original diversity jurisdiction in federal courts for class actions meeting certain requirements, including an amount in controversy that exceeds $5,000,000. If the class representative commences a class action in state court that meets the requirements for removal, a defendant may seek to remove the action to federal court under CAFA. If the initial complaint itself does not disclose grounds for removal, 28 U.S.C § 1446(b)(3) provides that…
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…