January 9, 2025

Mastering Mediation: Insights from Leading Experts on Success Strategies and Challenges – The Precipice

In the latest episode of The Precipice, host Peter Biging alongside mediators Mark Bunim, Jennifer Lupo, and Theo Cheng, discuss the complexities of mediation in professional liability. The episode sheds light on several crucial aspects that can determine the success or failure of mediation.

The Importance of Preparation
One key takeaway is the indispensable role of pre-mediation efforts. Conducting ‘pre-mediation reconnaissance,’ involving joint calls with counsel to iron out logistics and reviewing submissions in detail, is crucial. This step ensures mediators understand the intricacies of the negotiation dynamics and relationships between parties, thus setting a solid foundation for a successful mediation session.

Value of Opening Statements
Another significant insight is the relevance of opening statements. Opening remarks set a collaborative tone and present an opportunity for each party to frame their case. This helps in fostering a mutual understanding and moving the mediation forward effectively. The mediators highlight the importance of careful language and demeanor to avoid derailing the process.

Maintaining Momentum
The mediators also address strategies for overcoming hurdles during mediation. They suggest using techniques like proposing brackets in financial disputes or taking breaks to refresh mentally. Additionally, switching conversational focus and reality-checking exercises, such as time-cost analyses, help in maintaining momentum and steering the session back on track.

Importance of Trust and Rapport
Building trust and rapport with parties is highlighted as essential. Techniques like ex parte calls not only clarify the parties’ positions but also help establish the mediator as a neutral and trustworthy figure. This trust facilitates open communication and a more collaborative mediation process.

Effectively Closing the Deal
Lastly, the episode emphasizes the importance of stamping out a binding agreement. Thoroughly addressing all details, clarifying must-haves, and capturing all material terms in binding documents like term sheets are crucial to avoiding last-minute disruptions and ensuring a durable agreement.

Overall, the episode provides in-depth insights into the preparation, techniques, and strategies that can bring about effective mediation resolutions. Listeners walk away with a better understanding and actionable tactics to facilitate smoother dispute resolutions.

Interested in learning more about this topic? Listen to the full episode here.

Meet the Speakers

Peter Biging

Partner, Goldberg Segalla LLP

Peter Biging is an accomplished trial and appellate attorney with more than 30 years of experience as a litigator in the state and federal courts of New York. His practice focuses on litigation involving directors and officers, financial institutions and defense of management and professional liability claims, including the defense of a variety of professionals against errors and omissions claims, labor and employment practices litigation, commercial litigation, municipal liability litigation, and professional liability coverage work. His work as a litigator includes defending a variety of financial service professionals, including insurance agents and brokers, investment advisers, accountants, broker-dealers and their registered representatives. He also regularly represents lawyers, real estate and title agents, and a variety of miscellaneous professionals. Peter regularly handles complex, high-stakes commercial litigations and claims involving allegations of fraud or malfeasance, as well as litigations of non-solicitation/non-compete disputes. A partner in the firm’s Manhattan offices, he heads up the Goldberg Segalla metro area Management and Professional Liability practice, and is Co-chair of the M&PL practice group nationally. Peter is widely recognized as an authority on D&O, management and professional liability, E&O, EPL, and professional liability coverage issues. In addition to regularly writing and presenting to national audiences on these topics, he is active in a number of organizations devoted to the education and development of lawyers involved in management & professional liability defense work, including his current role as a member of the Board of the Professional Liability Defense Federation (PLDF) (for which he currently serves as president-elect), various posts within the American Bar Association’s Tort, Trial & Insurance Practice Section (TIPS) (including Chair of the Editorial Board of The Brief, the TIPS flagship magazine), and his active participation in the Professional Liability Underwriting Society (PLUS), and the Claim and Litigation Management Alliance (CLM), for whom he has written numerous articles, given numerous presentations, and served on several committees. He is regularly recognized as a New York metro area Super Lawyer in Professional Liability Defense, is AV rated by Martindale Hubbell as having the highest levels of skill and integrity, and has been selected a Top 100 Bet the Company Litigator.

Mark J. Bunim, Esq.

Arbitrator and Mediator, Case Closure LLC

MARK J. BUNIM is an advanced trained Mediator and Arbitrator and an attorney licensed to practice in the Courts of New York and the United States Courts, since 1976. Mr. Bunim has conducted over 400 mediations and dozens of arbitrations concerning insurance policy related and coverage issues, complex business disputes and partnership disputes. Mr. Bunim’s arbitrations and mediations have principally involved all insurance policy types including general liability, property, construction, employment practices, supply-chain, business interruption, directors and officers, rep. and warranty, professional liability, life, disability and Workers Comp. He has also arbitrated and mediated many insurance industry related business disputes between insurers and: MGAs; brokers and agents and general commercial disputes and Family Business Disputes. Mr. Bunim has been selected as “2013 Top Rated Lawyer in Insurance Law” by the American Lawyer/ New York Law Journal. Mr. Bunim has also been selected as a member of the National Academy of Distinguished Neutrals (NADN) and as a Charter Member of the New York Academy of Mediators and Arbitrators. Mr. Bunim is a Fellow of the College of Commercial Arbitrators. He is on the Panel of Large and Complex Case Arbitrators at the American Arbitration Association and designated as an “insurance coverage specialist”; the Panel of Insurance Mediators of the American Arbitration Association; the Panel of Commercial and Insurance Arbitrators and Mediators of FedArb.; the panel of the National Association of Distinguished Neutrals; and is Chairman of Case Closure Arbitrators and Mediators. He is the immediate past Co- Chair of the New York State Bar Assn. Insurance Dispute Committee of the DR Section.

Jennifer Lupo

Managing Member, Lupo Law, Arbitration & Mediation PLLC

Jennifer Lupo is a distinguished neutral with more than 30 years’ experience. Her areas of expertise lie in resolving business-to-business, complex commercial, employment, entertainment and sports, and insurance disputes. She brings a unique perspective to her craft as a neutral because she has sat in each seat at the dispute resolution table; as a civil litigator, as a general counsel to private and public companies, and finally, as the neutral. Ms. Lupo is a member of the commercial and employment arbitration and mediation rosters of the American Arbitration Association (AAA), the International Institute for Conflict Prevention & Resolution (CPR), the National Association of Distinguished Neutrals; and a Financial Industry Regulatory Authority (FINRA) arbitrator. She is also a member of mediation panels of the United States District Court for the Southern and Eastern Districts of New York, and several New York State court panels including the Commercial Division, New York county.

Theo Cheng

Arbitrator and Mediator, ADR Office of Theo Cheng

Theo Cheng is an independent, full-time arbitrator and mediator, focusing on commercial, intellectual property, technology, entertainment, and employment disputes, including breach of contract and negligence actions, trade secret theft, employment discrimination claims, wage-and-hour disputes, and IP infringement contentions. Mr. Cheng has been appointed to the rosters of the American Arbitration Association, the International Centre for Dispute Resolution, the CPR Institute, Resolute Systems, the American Intellectual Property Law Association’s List of Arbitrators and Mediators, and the Silicon Valley Arbitration & Mediation Center’s List of the World’s Leading Technology Neutrals. He is also a AAA Master Mediator and serves on the AAA’s Council. Mr. Cheng is an Adjunct Professor at New York Law School and was appointed a Practitioner in Residence at the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University Antonin Scalia Law School. Mr. Cheng is a Past President of the Justice Marie L. Garibaldi American Inn of Court for ADR, a Past Chair of the New York State Bar Association Dispute Resolution Section, and currently serves as the Vice President of the Copyright Society. Mr. Cheng is also a member of the National Academy of Distinguished Neutrals and a Fellow of the College of Commercial Arbitrators. He received the 2024 Richard K. Jeydel Award from the Garibaldi Inn and the 2020 James B. Boskey ADR Practitioner of the Year Award from the New Jersey State Bar Association Dispute Resolution Section, and the National Law Journal named him a 2017 ADR Champion. In 2022-2024, Mr. Cheng was voted a Top Arbitrator in the New York Law Journal’s Best of Reader Rankings Survey. In 2021, Mr. Cheng was voted the Best Mediator/Arbitrator in the New Jersey Law Journal’s Best of Reader Rankings Survey.