RESOLVE THORNY ISSUES BEFORE COMING TO MEDIATION
Assume that you are involved as a plaintiff or a defendant (carrier) in a serious injury case and that the injured party has collected workers' compensation so the issue of a lien payback will be part of any settlement. Also assume that the plaintiff may have sought, or is receiving social security disability payments or wil...
PRE-CLAIM LIABILITY TRANSFER: AVOIDING THE POUND OF THE CURE (RISK TRANSFER: THE ULTIMATE VICTORY)
Although risk transfer is sometimes viewed as analogous to questions concerning a party's potential liability and exposure, the reality is that risk transfer - perhaps, more aptly described as liability transfer - is the true "money game." A successful transfer of a party's defense and indemnification at the start of a lawsu...
COMPELLING ARBITRATION WHEN THINGS GET TENSE: 2ND CIRCUIT RULING IN ALLSTATE V. MUN
"Tense" can be a good thing. The 2nd Circuit just reminded us that your arbitration agreements need to be clear as to the point in time when compulsory arbitration clauses are effective. The "tense" of your verbs matters. In Allstate v. Mun, Docket No. 13-1424-cv. (decided May 6, 2014), the Court allowed Allstate to proce...
10 TIPS FROM THE MEDIATOR – GAINING A CLIENT'S ACCEPTANCE
1. Prepare the client for the mediation much in the way you prepare them for trial. 2. Consider how you will manage their expectations. 3. Give them a realistic analysis of the strengths and weaknesses of their case in advance. 4. Discuss the mediation process in detail. 5. Explain the mediator's background and r...
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...
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...
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...