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September 2023
Welcome to readers of Making the Connection!   
In this issue, you will find: 
  • In Focus: Navigating Surprises in Mediation
  • Question of the Month, on non-circumvention agreements
  • Case on Point, discussing discovery sanctions
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Navigating Surprises in Mediation
During the pre-mediation process, the mediator will attempt to facilitate the exchange of information and documents needed by the parties to participate meaningfully in the mediation. As described in last month's Question of the Month, the parties will be asked to submit pre-mediation statements to inform the mediator of the nature and history of the dispute and any prior settlement discussions. Despite these preparation efforts, surprises may come to light during the mediation as to the operative facts, the parties' real interests and concerns and their receptivity to various potential settlement arrangements. When this happens, it can be disruptive, and further undermine trust between the parties. The  mediator should help the parties explore this new information, and the parties should take the time to meet with their attorneys and consider how it affects their understanding of the dispute, their views of the other party, and how they should adjust their negotiation strategy.  In formulating a response, they might consider:
  • Does this new information open the door for new approaches to settlement? or
  • Should previous settlement proposals be rescinded or qualified?

Question of the Month
This month's question was inspired by some recent client interactions:
Q:How can a sales agent, broker or other intermediary ensure they get compensated for making a sale or facilitating a transacton?

A: The salesperson or broker's contract can include two provisions:

  • A non-circumvention clause prohibiting the principal from bypassing the agent in negotiating or concluding the sale or transaction; and
  • A provision entitling the agent to compensation upon the closing of the deal, regardless of the agent or broker's actual role in the transaction.
Case On Point
Freeman v. Giuliani
(U.S.D.C. for the District of Columbia 2023 )

Two Georgia election workers sued Rudolph Giuliani and two of his companies, asserting defamation and other claims arising from defendants' false assertion that plaintiffs mishandled ballots in the 2020 Presidential election. Plaintiffs filed discovery requests, seeking electronic and hard copy documents, and also to take defendants' depositions.  Giuliani and his companies failed to retain and produce the requested documents, and the companies failed to designate a representative to be deposed.  Plaintiffs moved for sanctions, including the grant of summary judgment on their defamation claims, and attorneys fees. Although courts are relucant to deny litigants their day in court, the court granted the motion, observing as follows:

Given the willful shirking of his discovery obligations in anticipation of and
during this litigation, Giuliani leaves little other choice.  . . .  Default judgment will be entered against Giuliani as a discovery sanction  . . . , holding him civilly liable on plaintiffs defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damage claims, and Giuliani is directed to reimburse plaintiffs for attorneys’ fees and costs associated with their instant motion.

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    

  • On October 4, 2023, at 1:30 p.m., I will present on Using Surveys and Questionnaires in the Mediation Intake Process at the 2023 Annual Conference of the Association for Conflict Resolution at George Mason University in Arlington, VA. Click here for information and registration.

  • On October 26, 2023, from 9:00 to 10:30 a.m., I will offer a virtual workshop on Navigating Challenges in Family Businesses sponsored by the Stony Brook Small Business Development Center. Click here for information and registration.

  • I am very pleased to have been named as a FINRA Dispute Resolution Services Arbitrator.
Client Corner
Client Corner features client announcements and events of potential interest to readers.

  • Georgia Tyner announces that Lorie in Cybersecurity Wonderland: The Fun of Camping & Mobile Security is now available on her company's website.  This children's STEM book focuses on cybersecurity and introduces children to mobile security, privacy and how to be safe in the mobile digital world.

  • On Thursday, September 28th, Marc Miller, Ph.D., PCC of MLM Coaching and Consulting LLC will be doing a presentation as part of the Virtual Retreat of ADFD, the Association of Divorce Financial Planners, entitled Triggered Emotional Reactions:How "Saboteurs" Undermine our Understanding and Communications as Professionals.

  • On Monday, October 17th, Marc will be the presenter at the monthly "Eminae Roundtable." The title of the presentation is: Succession Planning in Family Businesses: How to Identify the Best Leaders for the Next Generation. This presentation can be attended live or remotely.  Click here for information and registration.
  • Moxxie Mentoring Foundation will have its 2023 Emerald Summit fundraising luncheon on October 27, 2023. Click here for sponsorship and event information.

80 Orville Drive, Suite 100 | Bohemia, NY 11716
© 2023, Lisa Renee Pomerantz. All rights reserved.

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