Jay Young | Retired Las Vegas, Nevada Judge | Mediator | Arbitrator | Special Master
The parties labor through hours of negotiations to resolve a hard-fought case. After the congratulating is done, one party is tasked with drafting the release and settlement agreement. Too often, whether over substance or ego, the negotiation over the form of the agreement spoils a good, mediated result. Sometimes, a party will claim that a…
There are situations where our humanity, assuming attorneys are still humans, cries out for an apology. Yet they are seldom used in settlement negotiations even when they might assist to resolve the matter. Perhaps we are afraid of the statement being used against our client in case the matter doesn’t settle at mediation? That concern…
Read More “Mediation Tip #24: An Apology is Privileged Settlement Communication” »
Most clients are not familiar with the rhythm and flow of a mediation. Reviewing the social norms with them prior to the mediation may be useful to orient their expectations. The following are some principles of distributive bargaining that lawyers in most cases generally expect to be observed: Non-repeat players in mediation tend to negotiate…
Read More “Mediation Tip #23: The Dance for Dollars is Choreographed” »
The post emphasizes the importance of listening in mediation, as highlighted by a grandfather’s advice. Lawyers often become defensive, hindering effective communication. A better approach involves understanding opposing views, acknowledging potential risks in court, and explaining their strategies to clients, thereby promoting informed decision-making and reducing malpractice risks.
Give your mediator a call after you send that mediation brief. Think of it as a chance to advocate the strength of your position before the mediation begins. Consider discussing: I often learn more in these calls than I do from the parties’ briefs. They are invaluable and assist in allowing a smooth opening of…
The Randall Kiser Study indicates that rejecting the final mediation offer leads to regret, with plaintiffs faring worse 61% of the time and losing an average of $43,000. Defendants also risk higher costs if trials do not favor their last demand. Settling early can avoid stress and uncertainty, even amid discomfort.
Being the first party to make a monetary demand at mediation can be advantageous because it may serve to anchor (a cognitive bias where an initial offer influences by serving as a reference point around which all parties’ future offers revolve) the parties’ view of the value of the matter. It is natural to make…
Read More “Mediation Tip #18: Piggies Get Fat and Hogs Get Slaughtered” »
For successful mediation, both attorneys and clients must manage their expectations regarding outcomes. Lawyers should avoid expecting a settlement equal to a best-case trial verdict, while clients must understand the mediator does not issue verdicts. Compromise is essential, and being prepared to discuss case strengths and weaknesses can facilitate resolution.
This blog post questions the applicability of the Vanguard ruling, which mandates full disclosure regardless of potential liability. The author suggests reassessing this strict requirement in light of proportional discovery standards established by Nevada’s NRCP.
In Washington, state courts mandate complete disclosure of insurance policies in civil actions. In a personal injury case, defense counsel failed to disclose a $25 Million policy, leading to sanctions of $1 Million against their law firm for violating Rule 26(g). This order illustrates the necessity for thorough compliance in disclosures to avoid penalties.