I was supposed to be mediating a case today at the Philadelphia office of the Equal Employment Opportunity Commission (EEOC) today. With the record-long government shutdown still in full effect, all mediations are canceled. The government shutdown does impact everyday people in addition to my colleagues at the EEOC who are not getting paid. About 70% of cases I mediate at the EEOC settle in the mediation. Let’s hope the government settles the shutdown dispute…

Many people confuse the difference between mediation and arbitration and in an NJ Supreme Court ruling this week, it cost a company who inserted what was purported to be a mandatory arbitration clause into a consumer agreement. In a nutshell, arbitration is a process whereby a private judge — the arbitrator — makes a decision, often binding, upon the disputants. In mediation, the parties come to a voluntary resolution (or not) with the help of the…

Arbitration is essentially hiring a private judge to make a decision in a dispute.  If the arbitration is binding, there are few grounds to appeal that award. Arbitration is a creation of contract.  Generally, all parties must agree to enter arbitration to resolve their dispute.  In fact, in NJ, the NJ Supreme Court has ruled that an arbitration clause must explicitly state that the parties may be giving up their rights to go to court. …

A defendant’s attorney inserts handwritten paragraph 3A into an Agreement to Arbitrate that reads, “The parties reserve their rights to appeal the arbitrator’s award to the appellate division as if the matter was determined by the trial court.”  Both sides initialed the inserted paragraph.  Just one problem: to vacate an arbitration award, the matter must first be heard by a Superior Court trial level judge (and not Appellate Division). So How does a Court handle an invalid…

“In any continuing relationship, any persistent feeling had better be expressed.” — Carl Rogers, American Psychologist (1902 – 1987)…

I recently wrote about efforts in NJ to limit non-disclosure agreements in sexual harassment settlements.  With the recent sweeping tax code changes signed into law in late 2017, the deductibility of sexual harassment settlements with non-disclosure clauses is now under question. Section 13307 was inserted by Congress in response to the #MeToo movement/backlash from the Weinsteins of the world.  It’s short (with my emphasis): (a) Denial Of Deduction.—Section 162 is amended by redesignating subsection…

Here are the top 10 read blog posts in 2017: What are your chances at trial? How well do plaintiffs and defendants do in state civil courts? Gamesmanship In A Lawsuit And Discovery Can Cost You Do Retired Judges Make Good Mediators? Are Hugs at Work Sexual Harassment? When Is a Deal a Deal in Mediation? Write it Down and Sign It! NJ Supreme Court allows notice by Email in Real Estate Transaction Attorney Fees …