Co-authored with colleague Adam J. Halper, I am pleased to share this article written for New York Dispute Resolution Lawyer. Originally printed: NYSBA New York Dispute Resolution Lawyer | Fall 2018 | Vol. 11 | No. 2.
The facts underlying many disputes can be very simple. Others may be more complicated. In either case, when preparing a pleading, motion papers, or testimony for a court proceeding, the goal for the attorney and the client should be to tell a straightforward and compelling story, as simply as possible.
The persistent mediator will periodically check back in with the attorneys to learn what has occurred and to see if the new realities, or even just the passage of time, might result in the parties being able to pick up where they left off and try to overcome the seemingly
We know when a mediation begins. The better, and often more challenging questions are: when has it ended and was it successful? If at the end of one or more agreed-upon sessions the parties settle all of the issues in the dispute, the answer is an easy one—perhaps.
In a mediation, after learning the basic facts and issues in dispute, the mediator will work to identify each party’s interests and needs; this is different than a party’s “wants.” If a party has not already focused on her interests and needs, the mediator will help her do so. In
Employees are only entitled to severance if provided for in an employment contract.
Severance, where provided for in a contract, can, especially with senior-level executives, be for quite a large amount of money. If there are severance provisions, typically there will be contractual definitions of termination for “cause”; in those
New York is an at-will state. If the employee does not have a contract entitling her to continued employment for a period of time and/or setting forth grounds necessary for termination, and if no discrimination is involved and the law is not otherwise violated, an employer can discharge an employee
The parties have been at it for a while, without coming to an agreement. When is the mediation “over”? In any mediation, the parties and the mediator may view the give and take differently. From the parties’ standpoint, they may think it’s over as soon as they receive the first
Must your agreement be in writing to be enforceable? The answer is: Yes. Or no. In the world we live in, we make agreements with other people, with companies, and with other businesses. Sometimes they’re formal and in writing, but other times (in the real world), they are not. Can
I described a pilot mediation program launched that month by the Commercial Division of New York County Supreme Court to supplement its existing mediation program. That pilot program ended in late January of 2016; however, the Commercial Division has now launched a new pilot mediation program, as well as an
When going forward in mediation, quite often the parties have the opportunity, at least in the first instance, of choosing the mediator. This raises some questions: What type of mediator are they looking for? What skills should the mediator have to best enable him or her to help the parties
So you’ve decided to start a business. What type of business structure is best for you? You have many choices. If on your own, you can be a sole proprietor. However, you should also consider various types of business entities: You can form a limited liability company, even if you
I provided an overview of arbitration and what happens if one chooses to take this path. In this continuation, I discuss discovery and motion practice, arbitrator selection and the hearing, and the finality of arbitration. Discovery and Motion Practice: The two main areas in which arbitration may differ from a
People unfamiliar with the various forms of alternative dispute resolution often ask the difference between mediation and arbitration. In addition, they often want to know the difference between arbitration and a traditional lawsuit—meaning, going to court.
You’ve been sent to mediation. What’s next? You’re going to mediation; you asked or agreed to go, or a judge sent you. It shouldn’t matter. Embrace the opportunity! This is a “no risk” opportunity to settle your dispute, early on, before investing significantly more time and resources, and to do
The decisions that parties make at the beginning of a lawsuit can have lasting consequences throughout the litigation. Many litigants have heard that historically, there had been a distinction between courts of equity and courts of law. Today, while there still exists a distinction between equitable claims, such as actions
The Federal Labor Standards Act (FLSA) and New York Labor Law each provide sections entitling employees who make less than a certain threshold income to overtime pay—meaning for any hours they work in excess of 40 hours per week. The federal law, which becomes effective December 1, 2016, raises the
As lawyers and many clients know, discovery can be very expensive and time-consuming. The default for most attorneys is to ask for everything to make sure they have “covered the waterfront”; after all, one does not want to miss an important document they may need for trial. In so doing,
A company’s interest in protecting its trade secrets was recently acknowledged by the passage of the Defend Trade Secrets Act of 2016 (the “DTSA”), a federal statute that was signed into law in May 2016. The new statute enhances a company’s efforts to protect its trade secrets by strengthening the
here are risks involved in non-compete agreements, which are often part of an employment contract, and employees and employers should be aware of them. There are many legitimate reasons why an employer may want to include a non-compete agreement in an employee’s employment agreement.
Cases can often be won or lost during discovery. When a dispute arises and a party hires an attorney, they will spend time, together, going over the facts, providing relevant documents, and giving the attorney enough information so that the attorney can provide advice as to the strengths and weaknesses
In mediation, there is no formal process of discovery. And, if already in litigation, the parties may be sent to mediation before they have completed – or even begun – discovery. So what if a party feels they do not have the needed information to properly evaluate a settlement proposal,
In mediation, there is no formal process of discovery. And, if already in litigation, the parties may be sent to mediation before they have completed – or even begun – discovery. So what if a party feels they do not have the needed information to properly evaluate a settlement proposal,
Clients often ask whether or not they must go to court. As in many areas, there is a simple answer and a not-so-simple answer. The simple answer is: if you were named as a defendant in a case and were served with the complaint, you must go to court. If
In business today, it is commonplace for individuals to send numerous emails or texts during the course of the day, rather than one comprehensive, well thought-out and well written memorandum or letter – even one transmitted by email. Far too often, people have developed a habit of putting something in
Very often, individuals and companies are presented with documents that they are required to sign in order to obtain a service, purchase goods or engage in a transaction. Unfortunately, these contracts can be lengthy, written in small print, and/or written in “legalese.”
It is one thing when sophisticated parties, of relatively equal bargaining positions, opt to include an arbitration clause in an agreement. It is quite another thing when parties, even those engaged in commercial enterprises but of relatively unequal bargaining positions, agree, or are forced to agree, to an arbitration clause.
Arbitration is a form of alternative dispute resolution that can take the place of traditional litigation. Arbitration is very different than traditional litigation in court, and the process has various advantages and disadvantages. A party can only be required to submit a dispute to arbitration if all of the parties
Arbitration is a form of alternative dispute resolution that can take the place of traditional litigation. Arbitration is very different than traditional litigation in court, and the process has various advantages and disadvantages. A party can only be required to submit a dispute to arbitration if all of the parties
From time to time, individuals and companies will be served with a subpoena requesting the production of documents that may be relevant to a litigation in which that person or company is not a party. The person or party served may have no interest in the outcome of the litigation,
Co-authored with colleague Adam J. Halper, I am pleased to share this article written for New
The facts underlying many disputes can be very simple. Others may be more complicated. In either
The persistent mediator will periodically check back in with the attorneys to learn what has occurred
We know when a mediation begins. The better, and often more challenging questions are: when has
In a mediation, after learning the basic facts and issues in dispute, the mediator will work
Employees are only entitled to severance if provided for in an employment contract.
Severance, where provided
New York is an at-will state. If the employee does not have a contract entitling her
The parties have been at it for a while, without coming to an agreement. When is
Must your agreement be in writing to be enforceable? The answer is: Yes. Or no. In
I described a pilot mediation program launched that month by the Commercial Division of New York
When going forward in mediation, quite often the parties have the opportunity, at least in the
So you’ve decided to start a business. What type of business structure is best for you?
I provided an overview of arbitration and what happens if one chooses to take this path.
People unfamiliar with the various forms of alternative dispute resolution often ask the difference between mediation
You’ve been sent to mediation. What’s next? You’re going to mediation; you asked or agreed to
The decisions that parties make at the beginning of a lawsuit can have lasting consequences throughout
The Federal Labor Standards Act (FLSA) and New York Labor Law each provide sections entitling employees
As lawyers and many clients know, discovery can be very expensive and time-consuming. The default for
A company’s interest in protecting its trade secrets was recently acknowledged by the passage of the
here are risks involved in non-compete agreements, which are often part of an employment contract, and
Cases can often be won or lost during discovery. When a dispute arises and a party
In mediation, there is no formal process of discovery. And, if already in litigation, the parties
In mediation, there is no formal process of discovery. And, if already in litigation, the parties
Clients often ask whether or not they must go to court. As in many areas, there
In business today, it is commonplace for individuals to send numerous emails or texts during the
Very often, individuals and companies are presented with documents that they are required to sign in
It is one thing when sophisticated parties, of relatively equal bargaining positions, opt to include an
Arbitration is a form of alternative dispute resolution that can take the place of traditional litigation.
Arbitration is a form of alternative dispute resolution that can take the place of traditional litigation.
From time to time, individuals and companies will be served with a subpoena requesting the production
Bart J. Eagle provides Mediation and Arbitration services to clients in New York and now offers virtual mediation conducted over Zoom and other video and teleconferencing platforms.
Bart J. EagleRated by Super Lawyers
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