Changing the House Odds: Certainty and the Mediation Process
by Andrew Flake
I was in Las Vegas last week, at Caesar's Palace, for a meeting of the ABA's Dispute Resolution section, an annual gathering of mediators, arbitrators, and other dispute-resolution professionals to compare notes on best practices and to take...
Alohomora! Unlocking the Secrets of Successful Mediation
by Andrew Flake
I've enjoyed the Harry Potter books and then movies as they've come out over the years. They're filled with clever details and creative touches, like portraits that move and interact with the viewers (I suspect there...
Stops along the Way: When the Mediation Discussion Makes Sense
by Andrew Flake
More than ever, with case dockets overloaded, our trial judges welcome counsel's willingness to mediate. Indeed, much more frequently, I see them ordering parties to mediate, and doing so earlier in the litigation process, as part...
“Flora-Bama,” “Floribama,” and a Comparative Look at ADR
by Andrew Flake
You read certain appellate opinions and just know they were fun to write, and so it is with a trademark dispute, simmering over the past five years, involving a famous bar and an MTV reality television series...
Early Dispute Resolution (EDR): A Recipe for Success in Commercial Mediation
by Andrew Flake
When it comes to our favorite dishes, while we may not ourselves be chefs, most of us can at least name the key ingredients. A great sirloin is cut just so, perhaps seasoned with salt and pepper...
An Idea Whose Time Has Come? Considering the Role of Settlement Counsel
by Andrew Flake
Invited to an extended family reunion, I visited one of our state parks a few weekends ago. It was a cool and beautiful morning, and for a moment, standing under a bright blue fall sky, taking in the...
“Never Put Off Until Tomorrow…” The Importance of the Signed Mediation Agreement
by Andrew Flake
I spent a full day recently in virtual mediation. The case was a challenging IP dispute, one with a contentious and emotional history behind it, and even when schedules demanded concluding the full session, counsel and I...
Control over Time in Business Mediation
by Andrew Flake
When we think about "successful" mediations, it is often about a financial bottom-line: what was demanded; what was paid; what potential jury verdict was avoided. The dollar-recovery can certainly be measured, and the trial exposure, especially...
Making the Most of Our Online Mediations
by Andrew Flake
After a nearly ten-hour day on Zoom, even after concluding a great settlement, we're sometimes less than celebratory. The process can be intense, consuming a lot of focus and energy. It leaves us pretty exhausted....
Groundhog Day Edition: Considering the Mediation Privilege
by Andrew Flake
When that oddest of special occasions rolled around this year, our U.S. Groundhog Day, I decided to incorporate the festivities into a post. What are some of the recurring issues are in mediation, things that...