Start Spreading the News: Mandatory Mediation Comes to New York

Lorraine M. Brennan, Esq.

Lorraine M. Brennan, Esq.

By Lorraine M. Brennan, Esq.

As someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion.  When my client was sent to court-ordered mediation by a judge in the SDNY in the 1990s, I assumed that my adversary and I would merely tick the “attendance” box and return to the judge to let him know that mediation had failed to resolve our complex dispute.  But it was not to be.  Our mediator, a retired partner from a prestigious law firm, literally saved the day.  He pointed out to both sides the risks inherent in going to court.  Weaknesses in my case that I had dismissed as minimal were suddenly food for thought—who really knew what a jury might do?  Similarly, my adversary had his eyes opened to the fact that his case, while not completely frivolous, was quite weak and that he stood to lose it all if he insisted on going to court.  The mediator spent the entire day with us, and at the end of it, we had a fair and reasonable settlement that both sides could live with.  We saved time, money and a lot of unnecessary hostility on both sides.  I became a believer in the process.  It worked.

Thus, when I learned that the “The Chief Judge’s Task Force on Commercial Litigation in the 21st Century” had issued a June 2012 report recommending a pilot project that called for one in five commercial cases to be sent to mediation, I was enthusiastic.  The pilot program is set to begin on July 28, 2014, and will apply to cases in the New York County Commercial Division only.  The pilot is scheduled to run for 18 months, to give the users and the courts time to assess its efficacy and to determine if the program should be expanded to other counties.  The program has some flexibility, including an “opt out,” or exemption on good cause shown.  While undoubtedly there will be some resistance, my belief is that many parties who go through the mediation process will be satisfied with it and will return—even voluntarily—to mediate other matters.  When mediation works, it is a “win” for the client.  A matter that might spend years in the court system can often be resolved in a day or two, thus saving the client considerable time, money and the inevitable business disruption that a litigation brings.  The solutions reached in mediation can be innovative and creative, and in many cases serve the clients in a better fashion than a judicial decision.

For the rest of “Start Spreading the News:  Mandatory Mediation Comes to New York,” please read the full article from by clicking here.

Make the Most of Your Mediation: The Brief

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Lawyers wonder, what’s the point of writing a good brief when it seems that judges barely skim them?  Judges grumble that briefs are notoriously dense and barely readable.  And yet an informative and concise brief is the time-honored way to convince the judge of the merits of your case.  In mediation as well, the brief presents a golden opportunity to have your case viewed by the neutral in the best-possible light, free of annoying objections and interruptions from your opponent.  So is it worth the effort?  According to Chief Justice John G. Roberts, “There’s nothing better than a well-written brief.”

Let’s get to work.  Here are 10 pro tips to make your next brief a winner:

1.  Start writing two weeks before the brief is due.  No one, but no one, can write his best brief the day it is due.  The process of writing and thinking is deep and mysterious.  Even great writers accept that they can only go so far in one day.  You need time to develop your thoughts and arguments.  Set the stage for success by starting the brief well in advance of its due date

2.  Force yourself to complete a draft.  Many lawyers, disheartened by the enormity of the task before them, stare at a blank screen for hours, writing and rewriting the opening paragraph, unwilling to go on until it is perfect.  Instead, try thinking of your first paragraph as a placeholder, something that you will change once you write a draft all the way through.  A terrible first draft will be far more valuable to you the following day than a perfectly crafted opening paragraph because you will have thought about your case from start to finish.

3.  Lead with the big picture.  Your reader needs context to appreciate the details in your brief.  Lead off with a one- or two-sentence introductory description of your case.  For example:

  • This admitted-liability high-speed car crash caused traumatic brain injury to plaintiff.This lawsuit between neighbors in Tiburon pits plaintiff’s million-dollar view against defendant’s vintage oak trees.
  • Remember, a brief is not a mystery novel; the reader shouldn’t have to wait until the final page to figure out what kind of case it is.

To read on to section 4. Overcome writer’s block, please read the full article from by clicking here.

Is Your Arbitration Clause Outmoded?

Zela "Zee" G. Claiborne, Esq.

Zela “Zee” G. Claiborne, Esq.

by Zela “Zee” G. Claiborne, Esq.

Although arbitration is a “creature of contract” and many arbitrations proceed in the manner outlined in the arbitration clause, it is not unusual for the parties and their counsel to alter the terms of the original clause to suit the dispute at hand.  Often a dispute has arisen years after the arbitration clause was drafted, and circumstances have changed.  The clause may no longer be appropriate.  Although the parties and their lawyers may have strong disagreements on the merits of the case, they understand that stipulating to a customized process that suits the dispute is a huge benefit to everyone involved.  This flexibility is one of the strong points of the arbitration process.

The following suggestions are just a few of the ways to alter an outmoded clause:

1.  Select One Arbitrator

One goal of these stipulations is streamlining the arbitration process to make it more cost-effective.  When the clause calls for a panel of three arbitrators, counsel can make the process less costly and often more efficient by stipulating to use a sole arbitrator.  Although the parties may prefer a tripartite panel for a complex, “bet-the-company” case, choosing an experienced solo arbitrator can save time and money and does not involve extreme risk.  Counsel have an opportunity to review the arbitrator’s disclosures, to contact others about their experiences with the arbitrator and even to interview the arbitrator if there are concerns about fairness and the handling of the case.  Interviewing arbitrators has become a common practice, and a good way to do it is to meet with the candidate in the presence of the other side to ask various questions about how the candidate manages cases, while, of course, avoiding queries about the merits of the dispute.

2.     Select a Provider to Administer the Case

Arbitration participants often express a preference for a particular ADR provider based on factors such as experienced case managers, efficient administrative procedures, cost and a comfortable, high-quality hearing space.  While the arbitration clause may identify a particular provider, the parties may have had a negative experience with that provider in the past and may want to switch.  Therefore, it is not unusual for counsel to stipulate to a different, preferred provider.  As long as both parties agree, this is an easy process that will make the experience smoother and less frustrating for both sides.  Case managers are trained to assist with such a change.

For the rest of “Is Your Arbitration Clause Outmoded?” please read the full article from by clicking here.

Ethical Challenges of Aggregate Settlement Agreements

Cathy Yanni

Cathy Yanni

by Cathy Yanni

Aggregate settlements pose several ethical challenges, primarily because they involve lawyers representing the interests of more than one client.  Care must be taken at all times to ensure the interests of all clients are respected and fully served.  This article examines the ethical issues raised by aggregate settlements and the responsibilities of counsel.

Every state has ethical rules governing aggregate settlements, with most modeled on Rule 1.8(g) of the ABA’s Model Rules of Professional Conduct.  Those that have varied from this Rule do so primarily by way of exclusion, such as Louisiana and North Dakota, which specifically exclude class actions from their aggregate settlement rules, and Ohio and New York, which exclude court-approved settlements altogether.

Rule 1.8(g) states the following:

“A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients…unless each client gives informed consent, in a writing signed by the client.  The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”

Rule 1.8(g) therefore imposes two requirements on lawyers representing multiple clients.  The first is that the terms of the settlement agreement must be disclosed to each client.  The second is that after the terms of the settlement are known, each client must agree to the settlement.

The ABA Section of Litigation’s Ethical Guidelines for Settlement Negotiations has recognized that

“[e]ven when the lawyer’s initial conclusion that multiple clients can be represented was well-founded…consideration later of possible settlement options can generate circumstances where interests emerge as potentially divergent, if not actually conflicting.  Conflicts can arise from differences among clients in the strength of their positions or the level of their interests in settlement, or from proposals to treat clients in different ways or to treat differently positioned clients in the same way.”

These conflicts can be found in all types of aggregate settlement agreements but are particularly prevalent in settlements that involve allocations.  Whether the allocation involves either the development of a case matrix or a set of criteria for allocating a lump sum settlement, procedural and ethical questions abound with respect to a lawyer’s concurrent representation and duty to disclose.

To continue reading Cathy Yanni’s discussion on Ethical Challenges of Aggregate Settlement Agreements, please read the full article from by clicking here.