Blog Archives - Page 2 of 8

Does it Matter What Time a Mediation Starts?

Someone once asked me what the key was to resolving a case at mediation. My answer was: It starts to get dark out.

No one wants to leave the mediation at the end of the day with nothing to show for it, and as the skies deepen, people often start to modify positions that were much firmer earlier in the day. The logical extension of this is that the winter solstice is your friend and the summer solstice can be a setup for a very long day.

Of course not every case gets resolved in one sitting and the setting sun may have little effect on divorce matters, which often unfold over several months as the spouses figure out how to navigate a new landscape involving kids, houses, finances, and summer vacations. But a large percentage of mediated disputes are limited to issues that will be resolved by one party paying the other a sum of money. In those matters, I often find that people don’t want to end the day without a resolution.

Presumptive Mediation Update

~This post is dedicated to Chuck Newman, a good friend who was passionate about mediation and worked tirelessly to move it forward in many different areas. He will be sorely missed.~

{4 minutes to read} I have written before about Presumptive Mediation, which generally refers to courts where almost all civil cases presumptively go to mediation early in the litigation process.

Many state and federal courts have such programs and they are generally very successful. The New York State courts have been slow to embrace this though in May 2019 the State’s Chief Judge, Janet DiFiore, issued a press release stating the New York State courts would move to a presumptive mediation model.

Can Mediation Turn Back the Clock? – Construction

In my last blog, I addressed mediation turning the clock back and focused on divorce matters. What about other types of disputes?

Reverse clock with wooden frame isolated on white background

Several months ago, I mediated a case involving an upscale medical practice in a very upscale Manhattan coop building. Like most medical offices in such buildings, it was on the ground floor and had suffered from some flooding that the practice believed was the fault of some actions taken by the coop. The case was actually on appeal before the 2d Circuit so one side had already prevailed at the District Court. However, the mediation brought the two sides together for discussions that never would have happened had the parties simply moved ahead with the appeal. It turned out that both sides really wanted to figure out a way to live together since, in fact, they were going to regardless of who prevailed on appeal. Neither the building nor the medical office was going anywhere soon.

Can Mediation Turn Back the Clock?

I’ve written before about what success means in mediation. Often it means a complete resolution of a dispute and the parties can go on their way, having saved lots of time, aggravation, and a bundle in litigation expenses. Even when there is not a complete resolution, mediation often resolves at least part of a dispute or helps the parties significantly lessen the amount of discovery needed as the case moves forward. However, can mediation undo what’s been done? Can it restore the parties to some kind of pre-dispute state of harmony?

Discovery

{4 minutes to read} I have written before about when is the best time to mediate. No, you don’t have to go back and re-read that blog because the answer is simple: Now. Now is the best time to mediate.

Does that mean, now, now, or now with some lag time? Ok, now with a little lag time. A party can’t mediate by itself, so there are by necessity some preliminaries, like getting the other side(s) to participate in the mediation. However, that is becoming easier as more courts increasingly direct the parties to mediation without waiting for an agreement. If you want to see a good example, look at the ADR rules for the Federal District Court for the Western District of New York or the rules for North Carolina State Courts and federal courts: Eastern District of NC, Western District of NC, and Middle District of NC.

Can a Mediator Really Like Everyone?

Grimacing mime with hands akimbo and mask on head

It’s not uncommon that parties to a mediation don’t like each other, though you can never predict beforehand. I find that opposing counsel are typically at least cordial to each other and sometimes downright friendly. Divorcing couples sometimes get along just fine during a mediation. And I’ve been in situations where the clients, watching their attorneys bicker back and forth, take matters into their own hands and work out a deal between themselves.

Part of the mediator’s job is to be friends with everyone. If you want to successfully push and cajole, it’s best that people think you’re their friend. Usually, this isn’t too hard.

Does Familiarity Breed Contempt?

Image of Last Will and Testament ready to sign

{3 minutes to read} Estate battles generally lend themselves to great TV. No, what I really meant to say was that estate battles generally lend themselves to mediation. They take some unpacking since the issues that give rise to them are often years in the making. Maybe decades. There can be distrust, hurt feelings, greed, anger. There are in-laws whose membership in the family may be recent or of long duration. The parties often don’t want to be in the same room with each other, something that mediation – but not the courtroom – can accommodate.

Where Is The Best Place To Hold A Mediation?

Image of a well used wooden picnic table in the park

{4 minutes to read} So, where is the best place to hold a mediation? These days that question is a variation on the question, What should one wear to a mediation? (Answer: Anything from the waist up but be sure to keep your pajama bottoms on).

I raise this question of locale because of two recent divorce mediations where the answer was: outside in a park or other semi-public place. In each of these mediations one spouse walked around outside in a park that was sparsely populated. In one, the other spouse also ended up going outside to talk. Neither mediation suffered from this. Indeed, they may have benefited since the outdoor participants felt comfortable, and both mediations were successful.

Let’s Sue the Bastards!

Image of man hitting his thumb instead of nail

{3 minutes to read} One of the brighter aspects of economic activity in New York during the Covid pandemic was the ongoing construction activity that took place. While buildings remained empty and ground floor retail spaces were withering from the lack of business, construction sites always seemed to be buzzing with activity. Once the need for masks and social distancing was figured out, construction work began opening up much sooner than other businesses. Of course, large construction projects are years in the making and financing is not contingent on last month’s revenues.

Med-Arb

Hard red, green and white candy mints stuck in a ball

{4 minutes to read} There was a time when arbitration was hailed as the sliced bread of the dispute resolution world. Arbitration would be faster and cheaper than litigation, and more tailored to the needs of the parties. You could have experts in the field decide matters. Plus, it was private. As time went on, it lost some of its luster. Arbitration could be somewhat faster, but only somewhat. If there was a panel of three arbitrators, the fees could mount up, and scheduling could be difficult. The needs of the parties? Well, certainly if your side prevailed. But one of the cheaper, faster-selling points of arbitration was that decisions were final and binding. The losing side could not appeal.

347-314-2163