Publications

As any practitioner who has represented a plaintiff in a lawsuit knows, nothing is more frustrating than spending a day at Mediation where the Mediator is consumed with issues among and between the defendants. Adding insult to injury, the Mediator is then ultimately unable to bring anything forth to the plaintiff by day's en...

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...

Having been a mediator in the Court system and now in the private sector with NAM (National Arbitration and Mediation), I have come to regard private mediation in a new light and with a new understanding about what a mediator can and cannot do, and what mediation can accomplish. Of course, the old rules that were followed in...

Do give consideration in advance as to what confidential information will be revealed to the mediator in the breakout session. Do not attempt to rush the mediator into giving an evaluation of the merits of the case. Do give the mediator ample opportunity to speak to both sides. Do not become mired in arguments as to...

Many cases that come to mediation involve novel questions of law. Invariably, there will be a dispute as to the proper law applicable to the case and the interpretation of appellate decisions that impact upon same. It is common for parties in the context of their pre-mediation brief to cite case law with a summarization of t...

For many years, the courts have discussed the issues which arise when a sponsor/holder of unsold shares (hereafter, "sponsor") in a cooperative apartment corporation seeks to vote its shares at elections for the board of directors after the statutory period of permitted sponsor control has expired. Justice Ellen J. Coin, rec...

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...

The submission of a well-crafted brief prior to the mediation is an excellent opportunity to give the mediator a real preview of your position in advance. It can be used to educate, persuade, and create a roadmap for settlement negotiations. It is to your benefit to submit same as it will save time at the mediation and creat...

In 2012, Chief Judge Jonathan Lippman created the Task Force on Commercial Litigation in the 21st Century to provide practical proposals that would have a lasting impact on commercial litigation in New York. The Task Force had an interdisciplinary make up of practitioners, academics and current and retired judges of the Comm...

Under the best of circumstances, mediation may not result in the resolution of a litigated dispute. This may be as a result of factors which are not under the control of the parties. However, mediations are often negatively affected by basic mistakes involving factors that are within the parties' control. While many of the f...