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April 2025 Welcome Welcome to readers of Making the Connection!     In this issue, you will find:  In Focus: Applying Arbitrator Skills as a Mediator Question of the Month, about employee rights to view their personnel files Case on Point,  discussing clauses challenging the terms of wills or trusts At the Podium, listing my speaking engagements and public appearances Client Corner, spotlighting client events and announcements In Focus Applying Arbitrator Skills as a Mediator In our 2015 article entitled Overcoming the Arbitration Paradox: Toward a More Collaborative Approach to Commercial Arbitration Michele Riley and I discussed how arbitrators could use mediation skills in arbitration to foster a fair and efficient process.  At times, during mediations, I find myself applying certain arbitration skills and techniques. For example,  Arbitrators must be neutral and impartial and avoid any appearance of partiality. They should treat all parties and counsel with respect.  This is good practice in mediation as well; Arbitrators are authorized to ask questions to clarify the evidence or testimony  presented, or to better understand the context, but must do so in a neutral, open-ended way. Again, this is excellent practice for mediators, who use questions to help the parties get the issues on the table, and may suggest that exchanging certain information could be helpful; and Parties and counsel may become agitated and adversarial in both arbitrations and mediations. Experience in maintaining decorum in arbitration can be useful in mediation.  Question of the Month This month's question is one I posed to my students in Employment Law: Q: Should employees have the right to see their personnel files? A: There is no New York or federal law requiring employers to show employees their personnel files, although some employers do permit it.  However, should a dispute go to arbitration of litigation, a judge or arbitrator has the authority to require discovery of all or most of the contents of the file. Only those items which are subject to the attorney-client privilege (communications to or from an attorney to obtain or provide legal advice) or the attorney work product privilege (prepared by or for the attorney in anticipation of litigation) might be exempt from discovery. Case On Point  Carlson v Colangelo (N.Y. Ct. Of App. 2025) Intergenerational wealth transfers through gifts, wills and trust often spark family conflict among family members.  To deter such conflict, the individual making the will or trust can include an in terrorem clause disinheriting any beneficiary who challenges the terms of the instrument. Sometimes, though, the conflict is not about the terms of the will or trust, but whether the trustee or executor is faithfully carrying out their duties under the instrument. That was the situation in Carlson v Colangelo.  Defendant trustee informed plaintiff beneficiary that the trust set up by the decedent did not have sufficient funds to make certain payments specified in the trust instrument.  The trustee took the position that the language of the trust gave her discretion not to make those payments. Plaintiff sued, seeking a court order compelling defendant trustee to make the payments. Defendant contended the filing of the suit triggered the application of the in terrorem clause, disinheriting plaintiff. Defendant prevailed in the lower courts, but New York's Court of Appeals reversed, holding:  "The purpose of the in terrorem clause is to discourage challenges to the Trust that would upset the grantor's distributive intent. An action like plaintiff's, meant to require the Trustee to distribute the Trust in accordance with its stated provisions, is not a challenge to the grantor's distributive plan.Indeed, it would be contrary to the grantor's intent to hold that a party cannot file an action to receive exactly that which the grantor set aside for transfer to their named beneficiary." ___________________________________________________________________________________________________ At the Podium This is a listing of speaking engagements, workshops, events and other public appearances.  To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.            I look forward to serving on the American Arbitration Association's newly launched Consumer Mediation Panel. Client Corner Client Corner features client announcements and events of potential interest to readers.   On May 16, 2025, from 12 to 2pm, Moxxie Network will host a networking luncheon at Hotel Indigo in Riverhead.   Click here for information and registration. © 2025, Lisa Renee Pomerantz. All rights reserved.

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