MEDIATOR SETTLEMENT RECOMMENDATIONS – BE CAREFUL WHAT YOU ASK FOR!
During the course of negotiations, it is very common for one or more of the parties to ask a Mediator, "So, what do you think the case is worth?" This Mediator has a consistent response to that often-heard inquiry, "The case is worth what it settles for." Although that response may, at first, seem a bit glib, the inquiring p...
EXCHANGING THE MEDIATION BRIEF: IS IT IN YOUR BEST INTEREST?
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...
DRAFTING THE ARBITRATION PROVISION IN COMMERCIAL CONTRACTS, PART 1: BACK TO BASIC: IMPORTANT CONSIDERATIONS NOT TO BE OVERLOOKED
BACK TO BASIC: IMPORTANT CONSIDERATIONS NOT TO BE OVERLOOKED By: Hon. John P. DiBlasi, J.S.C. (Ret.) & Jacqueline I. Silvey, Esq., NAM General Counsel /wp-content/uploads/2016/09/diblasi.png John Wooden, one of the most successful coaches in basketball history, always focused his teams on the basics. The first lesson he ...
MORE CHANGES ARE COMING TO THE COMMERCIAL DIVISION
During the last month, John W. McConnell, Counsel, to Chief Administrative Judge Gail Prudenti, set forth five proposed changes to how the Commercial Division operates - both substantively and procedurally. Many of these changes were first floated to the public in the Report to Chief Judge Jonathan Lippman by his Task Force ...
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...