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August 2021
Welcome
Welcome to readers of Making the Connection!   
 
In this issue, you will find: 
  • In Focus : Mediation of Personal Injury Cases
  • Question of the Month, answering a reader's inquiry about alternatives to non-competes
  • Case on Point, discussing sanctions for failing to comply with mediation rules
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Mediation of Personal Injury Cases
Although New York's no-fault system utilizes arbitration to resolve automobile accident cases not involving serious injury, most cases involving serious injury and other personal injury cases must be resolved through the court system if they cannot be settled. Often, it can take years to get to trial, and court system backlogs only increased during the pandemic.
To expedite resolution of these and other cases, New York Chief Judge Janet DeFiore announced in her 2021 State of the Judiciary address:
We know and understand that ADR will play a key role in providing court access and helping us safely and efficiently process our dockets as we emerge from the pandemic, and we remain 100% committed to implementing our model of presumptive early ADR in order to transform the old culture of “litigate first,” to the new culture of “mediate first” in all appropriate cases.
To implement this initiative, the New York Office of Court Administration is offering personal injury mediation training to experienced mediators. I had the opportunity to participate in this training and look forward to mediating personal injury cases for the New York courts.
Question of the Month

This month's question comes from my son Lionel Pomerantz in response to last issue's article entitled Should we blue-pencil the blue pencil rule in the non-compete context?
Q: What alternatives to a potentially unenforceable non-compete should an employer consider?

A: The employer has a legitimate interest in protecting its trade secrets and confidential information, and its investment in the training of the employee.   There are two kinds of covenants which protect the employer’s legitimate interests without foreclosing the employee from competing:

  1. Confidentiality and non-disclosure agreements
  2. Non-solicitation agreements
Secondly, the parameters of the restrictions, including duration, geographical scope, and definition of the business from which the employee is foreclosed from should be as narrowly drawn as possible.

Thirdly, an employer might consider a retention bonus or having the employee repay the cost of training to retain the employee.

Case On Point
In this month's case, the Court of Appeals upholds sanctions for noncompliance with mediation rules.
Liebowitz v. Bandshell Artist Management
(2d Cir. Ct. of App. 2021)

Most courts have rules governing mediations taking place under their auspicesThose rules may specify procedures for mediator selection and compensation, confidentiality, submission of pre-mediation statements, and party participation.

The rules of the U.S. District Court for the Southern District mandate in-person attendance at mediations by parties and their counsel, unless the mediator permits telephonic or videoconference participation.  In this copyright infringement case, neither plaintiff nor counsel of record appeared.  Rather, an associate  who had not filed a notice of appearance attended the mediation. When defendant moved for sanctions, plaintiff's attorney testified falsely that the mediator had given such permission. Based on this conduct, and the filing of an action alleging the copyright had already been registered when it had not, the court imposed extensive sanctions, and the Court of Appeals affirmed.
 
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.    
    
  • On September 24, 2021, I will do a presentation on Using Mediation to Navigate  Family Business Disputes for the American Photography Archives Group from noon to 1:00 p.m. Information will be posted at apag.us.

  • On September 29, 2021, from 10:45 to 12:15 p.m.,  I will be a presenter at a session on Overcoming Challenges in Virtual Mediation at the 2021 Annual Conference of the Association for Conflict Resolution. 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.    

  • Congratulations to Theresa Jacobellis on her appointment as Director of Communications Solutions for IPRO, a healthcare quality improvement organization.

  • Moxxie Network is hosting two  Summer Social & Accessory Exchange luncheons ­at Oniro Taverna in Woodbury on Thursday, August 5, from noon to  ­ 2:00 PM and at Hotel Indigo on Friday, August 20 from noon to 2:00 PM. Visit moxxienetwork.com for information and registration.

  • Moxxie Mentoring Foundation is now accepting applications for its Ms Moxxie 6 month virtual group mentoring program beginning in mid-October. Click here for details, including the curriculum and application. 

80 Orville Drive, Suite 100 | Bohemia, NY 11716
www.lisapom.com
© 2021, Lisa Renee Pomerantz. All rights reserved.



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