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October 2024
Welcome
Welcome to readers of Making the Connection!  
 
In this issue, you will find: 
  • In Focus: Challenges and Opportunities in Personal Injury Mediation
  • Question of the Month, answering a question about collaboration lessons from Smokey Robinson
  • Case on Point,  discussing a court's exercise of jurisdiction over a Chinese company
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Challenges and Opportunities in Personal Injury Mediation
Two years ago, I took a two-day training course to qualify to mediate personal injury cases.  Since then, I have observed several significant differences between personal injury mediation and mediation in commercial and employment contexts.  Last month, I was delighted to share these observations at a training program for federal court mediators. Some of the challenges I mentioned include: 
  • the case is usually a win-lose situation, rather than a win-win dispute where creative problem-solving can enhance the outcome for both parties;
  • various third parties, including insurance companies, litigation funders and plaintiff counsel have vested interests in the outcome of the case;
  • the parties often have incomplete or outdated information about the incident or damages
  • there is usually no personal relationship between the plaintiff and defendant to tap intpreserve;
  • the individual defendant or corporate representative ordinarily does not attend the mediation session, but is represented by the insurance company adjuster;
  • many insurance company adjusters prefer not to attend the mediation but just to be available by telephone;
  • insurance adjusters often lack sufficient settlement authority to resolve the case at the first session
  • plaintiff's counsel is reluctant to permit the plaintiff to attend the mediation or to speak directly with the mediator;
  • multiple defendants are seeking to shift responsibility to each other.
To maximize the chances of a successful mediation, I usually have a preliminary call with counsel to review applicable court rules and procedures and discuss mediation scheduling and arrangements. During these initial calls, I discuss how the parties and counsel can contribute to a  productive session by:
  • ensuring that plaintiffs and insurance adjusters attend the sessions;
  • encouraging insurance adjusters obtain adequate settlement authority in advance;
  • inviting lienors or other interested third parties to participate;
  • supplementing prior discovery with additional or updated information or documents;
  •  exchanging reports of verdicts and settlements in comparable cases; and
  •  educating the mediator about key issues in the case and the parties' perceptions about obstacles to settlement.  
Question of the Month
Q: What can we learn about collaboration from Smokey Robinson?

A: Smokey Robinson speaks lovingly about the Monday morning "quality control" meetings at Motown where artists would play their new compositions for each other.  All other attendees would  provide honest critiques of those compositions and make suggestions.  He emphasized that those critiques were not taken personally but helped the writers improve their songs.  This is a great example of separating the people from the problem.
Case On Point
American Girl, LLC v. Zembrka
(U.S. Ct. of App. for the 2d Cir. 2024)

American Girl manufactures and sells iconic dolls.  It sued Zembrka, a Chinese company,  for counterfeiting and trademark infringement.  On its website, Zembrka advertised and accepted orders for identical dolls bearing American Girl's trademarks.  The district court issued a temporary restraining order barring defendant from continuing these activities.  When defendant learned of the restraining order, it cancelled pending orders and refunded customer payments.  Zembrka then moved to dismiss American Girl's complaint on the grounds that the court lacked personal jurisdiction over it since it never actually shipped merchandise into New York. 

The district court granted the motion to dismiss.  The applicable New York statute permitted the court to exercise jurisdiction over a defendant that "transacts any business within the state or contracts anywhere to supply goods or services in the state." The Court of Appeals reversed, holding that Zembrka "purposefully availed itself of the privilege of conducting activities within New York and, thus, transacted business." The Court of Appeals also rejected defendant's argument that the court's asserting personal jurisdiction over it would violate the due process clause of the United Constitution, commenting "Zembrka ran the risk of being haled into court by offering for sale allegedly counterfeit items for which New York customers could order and pay."

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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.    
    
 
  • On November 11, 2024, I will speak on Managing and Resolving Conflict in Healthcare Worplaces at the 2024 Annual Conference of the Association for Conflict Resolution at Creighton University in Omaha, Nebraska. Visit www.acrnet.org for information and registration.
Client Corner
Client Corner features client announcements and events of potential interest to readers.

  • On October 25, 2024, Moxxie Mentoring Foundation will host its Emerald Summit Fundraising Luncheon from noon to 3:00 pm at the Heritage Club in Bethpage. Click here for information and registration.

  • On November 7, 2024, at noon, join Dr. Marc Miller for a webinar on The Importance of Not Avoiding Difficult Conversations in Your Business Relationships. Click here to register.


80 Orville Drive, Suite 100 | Bohemia, NY 11716
www.lisapom.com
© 2024, Lisa Renee Pomerantz. All rights reserved.



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