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We are pleased to announce a free webinar for litigators and mediators on Wednesday, July 21, 2021 at 12:30 PM EST entitled “The Top 7 Psychological Traps to Watch Out For in Litigation and Mediation.” The presenter is Joshua E. Fruchter, Esq., a mediator and litigator with over twenty five years of experience settling disputes in litigation and family business environments. Among other topics, attendees will learn: Why familiarity with psychological traps…
During our June 23 webinar on decision tree analysis, one attendee reported having heard complaints that decision tree analysis is unfair to plaintiffs because the multiple probabilities in the tree whittle down their expected damages. The short answer is that it’s not a legitimate gripe because that so-called “whittling down” results from “garbage in, garbage out;” or more technically, misuse of the multiplication rule of probability (and rest assured, the plaintiff can play that game…
At our June 23, 2021 webinar on decision tree analysis, we discussed that after calculating the expected value (EV) of a lawsuit using a decision tree in connection with settlement negotiations or a mediation, plaintiffs should subtract the anticipated future costs of continuing to litigate (e.g., attorney and expert fees) from the EV, while defendants should add anticipated future costs to the EV. For example, assume that during mediation of a commercial litigation, the mediator…
We are pleased to announce a free webinar for litigators and mediators on Wednesday, June 23, 2021 at 12:30 PM EST entitled “Using Decision Tree Analysis To Value Lawsuits and Negotiate Settlements.” An application for NYCLE-accreditation for one (1) credit in the area of Professional Practice is currently pending. The presenter is Joshua E. Fruchter, Esq., a mediator and litigator with over twenty five years of experience settling disputes in litigation and…
We are pleased to announce an upcoming webinar on Tuesday, November 24, 2020 at 12:30 PM EST entitled “How Mediators Add Value to the Estate Planning Process.” The webinar is NYCLE-accredited for one (1) credit in the area of Professional Practice. The presenter is Joshua E. Fruchter, Esq., a mediator and litigator with over twenty five years of experience settling disputes in litigation and family business environments. Among other topics, Josh will…
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…