The Mediation Process at BDRS: Sessions

Sessions
Each mediation is tailored to the needs of the parties and the nature of the dispute. Typically, however, there will be a series of joint or private sessions. The goal of these sessions is to enable the parties to explore and understand
their interests, develop options, and determine whether all parties can reach agreement.

I first meet with all parties in a joint session for an introduction and review of the process, after which each party has an opportunity to present its side of the dispute.

After that initial joint session, I usually meet privately with each party, or with groups of parties, followed by subsequent joint or private meetings, as warranted. There are no arbitrary sequences or time limits.

Joint sessions can be a critical aspect of the mediation, particularly in instances where the parties have not ever met, or have not met since the time of the events giving rise to the dispute. The importance of giving parties an opportunity to have their say in front of their adversaries, and to hear directly any response the other parties might wish to make—all protected by the confidentiality of the mediation—should not be undervalued, even in cases where the dispute seems to be “just” about money.

Private sessions give the parties an opportunity frankly to assess the strengths and weaknesses of their case, discuss confidential information, to vent positions or emotions they do not wish to share with the other parties, and to consider the consequences and alternatives to a mediated settlement.

Resolution Solutions - July 2009

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The Mediation Process at BDRS: Pre-Mediation Statements

Pre-mediation statements

Before the mediation, the parties may submit optional, written
pre-mediation statements to the mediator. Such statements
might contain, for example, a summary of a party’s claim or
defense, what a party hopes to accomplish at mediation, or
particular concerns or perceived impediments to resolution.
Preparing such statements may be a useful tool for parties and
their counsel in thinking through the issues and preparing for a
productive session.

The purpose of such pre-mediation statements is not to
“persuade” the mediator—remember that the parties, not the
mediator, will decide how the dispute is to be resolved—but to
familiarize the mediator with the general context of the
dispute.

While BDRS encourages the parties to exchange information, it
is up to the parties to decide whether to submit their respective
statements just to the mediator, or also to exchange
statements among themselves. In order to avoid confusion,
however, the mediator will assume that anything in the
statements may be shared with the other parties at the
mediation, unless specific portions of a statement are
expressly stated as confidential.

About BDRS

I am a Boston lawyer with more than 28 years of experience. I founded Boston Dispute Resolution Services as an adjunct to my law practice. BDRS provides timely and cost-effective mediation and other ADR services to the legal, insurance, and business communities. These ADR services include mediation, conciliation, case evaluation, and business facilitation.

In my law practice, I have represented plaintiffs and defendants, including businesses ranging from sole proprietorships to Fortune 100 companies, in a variety of matters. These have included routine business disputes and personal injury claims, employment and workplace disputes, real estate and land use disputes, intellectual property and media matters, serious personal injury and death claims, major property losses, bad faith and unfair practices, and multi-million dollar, multi-party, complex business, construction, product liability, and insurance cases.

While many such disputes were resolved in court by motion, trial, or appeal, most were resolved through negotiated settlements. Over the years, my clients and I increasingly turned to mediation as a way to reach such settlements, particularly in complex, multi-party cases.

Although most of those mediations led to a resolution, in some instances the process itself was frustrating or unsatisfying. My belief that mediation participants deserve more than the “arm twisting” or “splitting the difference” that too often characterize “old school” mediation led me to explore different mediation styles and processes.

While mediation and most other services at BDRS (case evaluation being an obvious exception) primarily use a facilitative model of mediation (derived in part from concepts developed at the Harvard Negotiation Project), the process is tailored as needed to meet the needs of the parties in an efficient and productive manner.

I feel that I bring a balanced view and unique, practical perspective to my dispute resolution services, drawing on what I found to be most successful in my own ADR experiences as a litigator, while seeking to enhance the overall process and maximize satisfaction of those using the services provided by BDRS.

Ready for Trial? Really?

"I was never ruined but twice; once when I lost a lawsuit, and once when I won one."
- Voltaire

Being ready to try a case does not mean that trial is the best way to proceed. An imminent trial often suggests that neither side was able to dispose of the case by summary judgment or otherwise, perhaps due to difficult facts, uncertain law, stubborn positions, or even a lack of resources.

As a trial date approaches, so may the realization that the central issues and decisions affecting your case are soon to be placed in the hands of an unpredictable judge or jury.

Mediation, in particular, offers the opportunity to avoid the time, cost, and uncertainty of trial and, instead, arrive at a timely, cost-effective, and certain result that satisfies all parties.

At BDRS, our mediation and other ADR services focus on litigation (and claims likely to end up in litigation) involving the following substantive areas and issues:

Business and Commercial, including contract, business torts, and unfair competition disputes

Class Action and Mass Torts, including products, medical devices, pharmaceuticals, and consumer issues

Construction, including defect, cost overrun, and delay claims

Employment and Workplace, including executive compensation, severance, non-competition, and non-disclosure issues

Entertainment, Fine Arts, Music, and Publishing, including credit and compensation, advances, royalties, contract disputes, and rights of publicity, reproduction,
distribution, derivative works, and performance

Insurance, including complex commercial and excess and surplus lines coverage disputes, Lloyd’s and other London Market or European insurance issues,
reinsurance, unfair claims settlement practices, and agent and broker errors and omissions claims

Intellectual Property, including copyright, trademark, and trade secrets

Lloyd’s and Other London Market or European Insurance, including Names/syndicate relations, underwriting, broking, duty of utmost good faith, U. S.
brokers and agents, U. S. syndicate operations

Media, Defamation, and Privacy, including libel and slander, invasion of privacy, false light portrayal, access

Professional Liability, including claims involving legal, medical, and financial professionals

Product Liability

Serious Personal Injury and Death

Trust and Estates, including will contests, beneficiary/trustee disputes, fiduciary duty issues

Unfair or Deceptive Practices, including bad faith and claims under M. G. L. c. 93A

Can you hear me now?

Can't seem to get the other party to listen?

Mediation is a voluntary, confidential, and informal process where an impartial third-party—the mediator—assists the parties in reaching a resolution of their dispute.

Although the mediator guides the process, the mediator is not acting as a
judge, arbitrator, or fact finder. The parties—not the mediator—decide how the dispute will be resolved.

At BDRS, mediation is based primarily on a facilitative model of mediation (derived in part from concepts developed at the Harvard Negotiation Project), where the mediator facilitates communication and negotiation among the parties, and helps the parties explore and define their interests and goals, and develop options for a resolution.

The process at BDRS is tailored as needed to meet the needs and desires of the parties, and to provide services in an efficient and productive manner.

Problem. Solved.

Litigation has an avaricious appetite for time and money—exacerbated by clogged court calendars, seemingly endless discovery (often including expensive electronic discovery), and ever-increasing fees and costs—and is imbued with a rigid process and a pervasive uncertainty as to outcome.

Isn’t there a better way?

There is.

Mediation is a way to resolve disputes that are in litigation, or to avoid the need to resort to court. Unlike litigation, mediation is a timely and cost-effective process that enables parties to resolve their disputes and achieve certainty.

For parties with an ongoing business relationship, mediation provides a less adversarial forum in which the parties can resolve their immediate conflict, and then move forward.

Saving money is always important, but especially so in our current economic downturn. Mediation is a great way to enhance your bottom line.