Mediator Bruce Friedman recently wrote an article for Law.com on the Early Mediation of Insurance Coverage Cases. According to the article, the mediation of insurance coverage disputes prior to the filing of a lawsuit is becoming more common. In part, this trend is the result of ADR provisions in insurance policies that require that the…
DetailsIn a recent Law360 article, mediator Bruce Friedman discusses ‘Shepherding Insurers Through The Mediation Process’.
While insurance lawsuits involving claims directly between an insurance company and its policyholder make up a relatively small percentage of our courts dockets, cases triggering liability insurance from automobile accidents to securities class actions constitute a very large percentage of all cases before our courts. Settlement of these cases requires the proper shepherding of the insurer(s) defending/covering the case. The participation of the insurer(s) at the mediation is necessary to the ultimate resolution of the case. The challenge is making sure that the insurer(s) are prepared to participate in the mediation in a meaningful way.
DetailsIn his recent article, featured on Law.com, Bruce Friedman discusses two new impasse-busting techniques to incorporate when the negotiation process has come to a halt in a mediation. The article touches on the theories of The Mediator’s Bracket and Baseball Mediation. To read more about these effective techniques, click here. To learn more about Bruce’s…
DetailsThere comes a time in every mediation when negotiations reach an impasse. Negotiations can stall at the outset of a mediation when the parties are unwilling to bargain with one another either because “it is the other side’s turn,” “we won’t respond to that outrageous demand” or “we won’t accept that insulting offer.” Later in…
DetailsResolving insurance coverage disputes through mediation requires exposing careful assessment of three unique elements: the insurance policy, the rules applicable to the application of the policy and the cases construing the policy. Evaluative mediation provides the best approach for resolving these disputes. It requires parties, counsel and the mediator to evaluate the strength and weaknesses…
DetailsIt is a common understanding among trial lawyers that decisions are made emotionally and not rationally. We are always looking for the emotional hook on which to hang the case and sway a jury to see the case through that emotional prism. Now science is teaching us that decision-making is actually physical. In a recent…
DetailsWe have all encountered the spiteful litigant. Maybe it’s the husband in a divorce who says that he is going to Las Vegas and putting the marital estate on red or black at the roulette wheel. If he wins he will split it with his ex; if he loses, neither of them get anything. Or perhaps it’s a partner in a dispute that says that he would rather the business fail then have to share its value with his soon to be ex-partner; or a litigant that states that he would rather drive the defendant into bankruptcy even if it means that he would not recover for his injuries.
How does one deal with spite in the context of a mediation? Recent scientific studies of spite provide the answer. Spite is defined as the urge to punish, hurt or humiliate another, even when one gains no obvious benefit and may well pay the cost. New research summarized in a recent New York Times article concludes that spite is both a vice and a virtue that may be linked. Not surprisingly, in one survey conducted by David K. Marcus, a psychologist at Washington State University, spitefulness generally cohabited with traits like callousness, Machiavellianism and poor self-esteem. Spite is not associated with agreeableness, conscientiousness or guilt.
DetailsBruce Friedman was recently a guest on the popular “Conflict Specialists Show” hosted by Dave Hilton. During their conversation, Bruce shares how to ‘win at mediation’, getting past an impasse in mediation, and other tips for both litigators and mediators alike. A former litigator himself, Bruce call on his litigation experience during the mediations he…
DetailsThe end of the day is nearing and the mediation has ground to a halt. The parties have narrowed the gap between them, but cannot close it. Is it time to suggest a mediator’s proposal? Does a proposed settlement amount coming from the mediator have a reasonable likelihood of acceptance? Are the parties interested in having the mediator make a proposal? If the answer to these questions is yes, then it is time to employ the ultimate impasse busting technique, the mediator’s proposal.
But what amount should the mediator propose? Splitting the difference between the last demand and offer has undoubtedly been discussed with the parties and rejected. Otherwise, a mediator’s proposal would not be necessary. How does the mediator avoid the appearance of favoring one side over the other when the contemplated mediator’s proposal is closer to one party’s last position than the other’s? Should the mediator have a reasonable degree of confidence that the plaintiff will accept the proposed amount?Should the mediator have a reasonable degree of confidence that the defendant will pay the proposed amount? Is one of these factors more important than the other?
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