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June 2022
Welcome
Welcome to readers of Making the Connection!   
 
In this issue, you will find: 
  • In Focus : Is the Term "Handshake Deal" an Oxymoron?
  • Question of the Month, asking if mirror neurons work remotely
  • Case on Point, discussing the waiver of an agreement to arbitrate.
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Is the Term "Handshake Deal" an Oxymoron?
Often, clients (or potential clients) tell me they have a "handshake deal" with the other party. On closer examination, it turns out they have not even discussed or agreed on key elements of the transaction. These omissions can lead to problems and disputes.
Recently, I had the pleasure of presenting a program on Good Contracts-More Than Just a Handshake! for the Stony Brook Small Business Development Center. I explained that good contracts:
  • clarify and confirm the parties' rights and obligations for themselves and their employees, agents and subcontractors as they carry out the agreement;
  • facilitate enforcement of the agreement by the judge or arbitrator who later has to interpret the agreement;
  • address collaterial issues such as risk allocation and intellectual property rights;
  • and specify communication, decision-making  and dispute resolution procedures.

Question of the Month
This month's question is one I have been pondering since the Covid pandemic prompted a shift to online mediations.
Q: Do mirror neurons work remotely?

A: Mirror neurons cause people to respond involuntarily to actions of others as they would to their own actions. Thus, observing another person smile can activate neurons just as if the observer were smiling herself.  Mirror neurons help explain how the "mood in the room" can change during mediation and contribute to rapport and empathy between the parties.  Since the parties cannot readily make eye-contact or decipher facial expressions and body language online, the effect of mirror neurons is weaker in virtual interactions. To address this, Zoom is working to enhance its application to identify and decode facial expressions for the parties. (Query whether the knowledge of being monitored would stifle emotional displays).  Privacy advocates have objected to deployment of this feature. To address such objections, perhaps such a feature could be deployed only with participant consent.  
Case On Point
In this month's case, the United States Supreme Court considers whether a party waived its right to arbitrate.
Morgan v. Sundance, Inc.
(U.S. S. Ct. 2022)
 
Plaintiff was employed by defendant in a Taco Bell franchise. Ignoring the arbitration clause in her employment agreement, plaintiff filed suit claiming defendant failed to pay overtime in accordance with requirements of the Fair Labor Standards Act. Although defendant could have immediately moved to stay the federal court action and compel arbitration, it participated in the litigation for eight months, moving to dismiss, filing an answer and participating in a mediation, before doing so.  Plaintiff claimed defendant waived its right to arbitrate.  Defendant disagreed, asserting that plaintiff had to show prejudice caused by the delay.  The Court of Appeals agreed with defendant.

The Supreme Court reversed.  It observed that waiver is the "intentional relinquishment of a known right." There is ordinarily no requirement that the party asserting a waiver show it has been prejudiced, and the federal policy favoring arbitration agreements set forth in the Federal Arbitration Act does not justify imposing such a requirement that would otherwise not apply. 
At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances. At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.    
    
  • I will present on Using Mediation to Navigate Family Business Disputes at the Association for Conflict Resolution Annual Conference in Orlando from September 14-16, 2022. Visit acrnet.org for information and registration.
Client Corner
Client Corner features client announcements and events of potential interest to readers.  Some Client Corner events are also listed on the calendar page of my website.    

  • The Moxxie Network Summer Social and Accessory Exchange will take place on July 15, 2022 from noon to 2:00 pm at Hotel Indigo in Riverhead.  Visit moxxienetwork.com for information.

80 Orville Drive, Suite 100 | Bohemia, NY 11716
www.lisapom.com
© 2022, Lisa Renee Pomerantz. All rights reserved.

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