Merge Mediation Group Blog

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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.…
We hope all of our readers have had an enjoyable summer, and relaxing Labor Day weekend. Alas, the wheels of justice ground well into August, and courts have continued to issue interesting mediation-related decisions. We have previously written (here and here) about decisions addressing dispute resolution clauses that obligate parties to take a stab at mediation before commencing arbitration or litigation in the event of a dispute. Courts will generally enforce those provisions.…
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…