Blog Archives - Page 4 of 7

The Emotional Power of Apologies

{3 minutes to read} Personal injury cases come in all stripes, though common to many of them is that the plaintiff(s) and defendant(s) don’t know each other. But what about when they do? Leaving aside medical care provided in emergency rooms, patients typically know their doctors before an event that leads to claims of medical malpractice. Patients/plaintiffs often felt they were – quite literally – in good hands before the procedure.

Some of you may recall or know of a line made popular from the 1970 novel Love Story which goes, “Love means never having to say you’re sorry.” Popular doesn’t always mean dumb, but in this case the two were synonymous.

Two Game Changers in Mediation

{3 minutes to read} Two enormous “game changer” mediation moments came back-to-back recently. Let’s start first with the local news. On May 14^th, New York State’s Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced a systemwide initiative in which parties in civil cases will be referred to mediation as the first step in the litigation process.

This is a very big deal. While it won’t happen overnight, this will eventually establish New York as the nation’s leader in making mediation an essential component of dispute resolution in the courts. Hundreds of thousands of cases that previously would have cost gobs of money and taken years to resolve — with limited input from the actual parties — will now go to mediation and get resolved with direct input and participation from the parties, with far less financial and emotional cost.

The 11th Commandment

{4 minutes to read} I have written and spoken in the past about automatic court-annexed mediation programs, but maybe you haven’t heard me discuss it or read about it before. So just in case:

Certain courts force parties to go to mediation before they can continue litigating their cases through the “normal” court process. But parties shouldn’t be forced to mediate, should they? Isn’t that a decision the parties should both agree on? Isn’t a basic, guiding principle of mediation self-determination, including the decision whether or not to mediate?

Anger and New Mediators

{4 minutes to read} What’s the role of anger in addressing conflict resolution? I was recently at a training for new mediators and coached a group of attorneys working through a role play. These trainings are always interesting in terms of watching others learning a new skill, as a refresher of basics, and getting some new ideas. At one of these trainings about a year ago, a law student trainee came up with a great line, one I have since used on at least one occasion. The comment, made to the two opposing parties in the role play, was, “You guys think you’re miles apart. But you’re not; you’re a football field apart.”

Mediation as a Guiding Principle for Change Orders

{3 minutes to read} My last blog addressed using a contract provision requiring notice, discovery, and mediation as a way to quickly resolve disputes that can arise in almost any business arrangement. In this blog, I will address the use of mediation as a guiding principle when dealing with change orders in construction projects.

Avoiding Litigation Through Mediation Contract Clauses

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{3 minutes to read} Alan Gettner and I recently published an article in the Fall 2018 issue of New York Dispute Resolution Lawyer that described a simple method of using a mediation clause in a contract to avoid costly litigation. The gist of it is a relatively short “notice and disclosure” provision in the contract that requires parties to:

Notify the other side of any dispute before commencing a lawsuit.
Provide relevant documents and information about the dispute.

Ouch! When can I Collect . . .

{3 minutes to read} So how long does a personal injury mediation take? You will probably find this surprising, but it depends.

Personal injury cases come in many, many different sizes. There are fender benders with bruises, class actions, medical malpractice cases (many different sizes there, too), “minor” injuries, major ones, in-between ones. And of course there are damages, which often determine the length of litigation and of a mediation.

Employment Mediation: How Long Does It Take?

{4 minutes to read} This is the third of four blog posts about how long a mediation should be expected to take. Spoiler alert: The answer for each is “It Depends.” The first two blogs addressed commercial and divorce mediations. This one will address employment mediations.

Employment mediations often have something in common with divorce mediations. The parties have had an ongoing relationship that has fizzled. There is almost always anger and resentment from the plaintiff/former employee, and even from the employer, who typically feels its actions were justified. Think of the spouse who initiates the divorce as the employer and the spouse who wants to remain married as the employee. Like marriages, employers and employees often stay connected even after the relationship has soured.

Divorce Mediation: How Long Does it Take?

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{4:30 minutes to read} One question I always get whenever someone calls about a divorce mediation is, “How long does it usually take?” The “It depends” answer to this one is far more accurate than in most other mediations.

Many non-divorce mediations take a full day. There is something about participants getting tired and it getting dark that stimulates movement. No one wants to leave after 8, 10, or 12 hours with nothing to show for it.

In divorce mediations, a similar process plays out, but never in one day. And single sessions rarely go over two hours. Couples get exhausted by that point. Plus they need to reflect on and sometimes even live with issues, emotions, and possible decisions.

How Long Does a Mediation Take?

{3:30 minutes to read} Someone recently asked me how long I would expect a mediation to take. I thought hard for two or three milliseconds and said, “It depends.”

So, how long should one expect a mediation to take? I’m glad you asked. I’ll address different areas of mediation length over the next few blog posts, but let’s start with a commercial case.

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