THE COMMERCIAL DIVISION'S PILOT PROJECT FOR MANDATORY MEDIATION: WHEN MANDATORY IS NOT MANDATORY
Recognizing the unquestionable value of mediating commercial disputes, the New York Supreme Court, New York County, launched a pilot project by which certain cases assigned to the Commercial Division are automatically referred to mandatory mediation. Because it has been just a short while since the pilot project became effec...
ESI, E-DISCOVERY PLANS AND THE MEDIATOR – FACING THE FUTURE OF ELECTRONIC DISCOVERY
As issues concerning Electronically Stored Information ("ESI") and E-Discovery are becoming more prevalent and increasingly complex, litigants are beginning to hear phrases such as "E-Mediation" or "ESI Mediation." Mediating E-Discovery issues allows litigants to control what is being requested, what is being produced, and h...
WHY ADR IN THE BALKANS MATTERS
I have been privileged, on two separate occasions, to be retained as a legal consultant for a program sponsored by the United States Agency for International Development (USAID). The program was designed to assist local authorities in strengthening the legal system in the Republic of Macedonia. In that capacity, I provided i...
PREPARATION, PREPARATION, PREPARATION – INVESTING IN THE MEDIATION
Many attorneys are familiar with the old adage, "Cases which get prepared for trial settle and cases which are prepared for settlement get tried." On this spectrum, Mediations should be viewed as much more akin to a trial with "preparation, preparation, preparation" being the mantra chanted. Mediations provide that moment in...
ADR = ALTERNATIVE DISCOVERY RESOLUTION – REVISITED
On a dark and stormy morning in Lenox Massachusetts, the attendees at the New York State Bar Association's spring meeting of the Commercial and Federal Litigation Section were greeted by an all-star panel discussing "Alternative Discovery Resolution." Though the panel's topic spoke to resolving "normal" discovery problems, i...
DEMONSTRATING STRENGTH BY ACKNOWLEDGING WEAKNESS IN MEDIATION
Most trial lawyers and insurance company adjusters are "old pros" when it comes to mediating a personal injury case. But, if old dogs can learn something new, then re-thinking the mediation of personal injury cases may prove helpful. Let's assume the following fact pattern: A worker was injured in a fall while descendi...
THE RULES OF THE COMMERCIAL DIVISION – AN OVERVIEW OF CHANGES THROUGHOUT THE LAST DECADE, PART 2
Last month I wrote of changes to the Commercial Division rules over approximately the past eight years. I will now continue with amendments and additions to the rules from the end of 2015 to present. Effective December 1, 2015 an amendment to Rule 11-d, and a new section 11-f were added. Rule 11-d, Limitations on Disco...
THE RULES OF THE COMMERCIAL DIVISION – AN OVERVIEW OF CHANGES THROUGHOUT THE LAST DECADE, PART 1
The Rules of the Commercial Division of the Supreme Court were first formally created as of January 17, 2006. The earliest amendments enacted in 2007, 2009 and 2010 concerned the monetary threshold amounts. In July 2010, a change was made to Rule 1, specifically Rule 1 (b) requiring a lawyer's familiarity with its clients te...
WHEN DRAFTING AN ARBITRATION CLAUSE, SPECIFICITY MATTERS
The purpose of placing an arbitration clause in a contract is to streamline the resolution of any disputes under the agreement. Alternative dispute resolution (ADR) avoids the time, cost and uncertainty of litigating in court when a dispute arises. In drafting an arbitration clause, the goal is make the clause itself clear a...
Construction Defect Claims: A Mediator's Perspective
Most trial lawyers and insurance company adjusters are "old pros" when it comes to mediating a personal injury case. But, if old dogs can learn something new, then re-thinking the mediation of personal injury cases may prove helpful. Let's assume the following fact pattern: A worker was injured in a fall while descendi...