In a case of first impression, the Business Litigation Session (Davis, J.) recently declined to reduce the amount of restitution a disloyal corporate officer had been ordered to pay to his employer in connection with a judgment against the corporate officer. In so holding, the court held that a settlement payment, received by the plaintiff employer from two co-defendants (the former employee and a competitor business), did not fall within the scope of the Joint Tortfeasors Act and, therefore, the Act could not be applied to offset any damages the former corporate officer was ordered to pay. See Element Productions, Inc. v. Editbar, LLC et al. (Suffolk Sup.Ct.).
How should counsel and parties prepare for the mediation of a business litigation case? For counsel, the process of mediation requires an entirely different mindset and style than he or she is accustomed to in court proceedings. In fact, a common mistake that inexperienced practitioners make is to prepare for mediation as though it were an adversarial court proceeding. Counsel should resist those natural impulses and instead focus on what the client needs to make the most of the opportunity presented at the mediation - that is, to get a good settlement.