Month: September 2024
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No “Settlement Privilege” for Expert’s PowerPoint
By Leslie King O’Neal What Happens in Settlement Conferences May Not Stay There “Work Product Privilege” Waived; No “Settlement Privilege” Applicable The court rejected Warrington’s argument that “work product privilege” protected the non-testifying expert’s PowerPoint from discovery, finding he waived the privilege by revealing the PowerPoint to defendant during the settlement conference. The fact that…
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Tips for Construction Mediation Statements
By Andrew Ness Earlier posts cover preparing for mediation more generally.[i] This post provides tips for mediation statements, drawn from my experience both as a construction dispute mediator and an advocate at mediations. The Goal of the Mediation Statement: Helping the Mediator to be Effective Everything in the mediation statement should focus on the objective…
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Private Judging: An ADR Alternative in Florida
By Leslie O’Neal Process Combines Arbitration’s Flexibility and Litigation’s Procedural Safeguards [i] Most experienced construction attorneys are familiar with binding arbitration as an alternative dispute resolution (ADR) method. Some attorneys and clients are wary of binding arbitration because neither the Florida Rules of Civil Procedure nor the Florida Rules of Evidence apply in most arbitrations…
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Building the Foundation for Mediation Success
By Leslie King O’Neal Preparation is the Foundation for Mediation Success Most construction cases now go to mediation, either via court order or voluntarily. How can attorneys and clients get the most from the mediation process, maximizing settlement opportunities? While attorneys don’t control all the factors leading to mediation success, pre-mediation preparation is the foundation…
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The Attorney’s Role in Preparing Witness Statements and Exhibits
By Andrew Ness Last week’s post, Practical Tips for Drafting Witness Statements listed thirteen recommendations for making witness statements more effective and powerful. This week’s post adds guidance about the attorney’s role in drafting effective witness statements and exhibits, including some cardinal rules to follow to avoid potential disaster on cross examination. Who Drafts the…
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Practical Tips for Drafting Witness Statements
By Andrew Ness Drafting Effective Witness Statements Using Witness Statements in Arbitration (8/31/24) addressed the basics for using written witness statements in lieu of direct testimony in arbitration. This post provides tips for drafting effective witness statements. Practical Tips for Drafting Effective Witness Statements Takeaways Drafting effective witness statements requires collaboration between counsel…
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Confidentiality in arbitration–and afterward
Confidentiality in arbitration is more limited than many attorneys and parties believe. Confidentiality agreements can help protect sensitive information, but they’re not binding on courts considering post-hearing motions. This post gives guidance on keeping information confidential during and after arbitration.
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What is “good faith” in mediation? Is it enforceable?
By Leslie King O’Neal “They’re not here in good faith!” is an accusation mediators sometimes hear. But what does “good faith” mean in mediation? Is it the mediator’s role to decide if parties are acting in “good faith?” Should mediators report parties who violate “good faith” requirements to the court? Attorneys, mediators, judges and legal…
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