What We Do

Mediation

Mediation is a non binding process in which an impartial third party facilitates the negotiation process between the disputants. Unlike litigation, the parties maintain control over the process.

Mediation can be confidential which benefits ongoing business relationships.

Mediation greatly reduces the costs of disputes compared to litigation.

Mediation is much faster than litigation which typically takes years to complete.

Litigation is inflexible and is governed by the strict rules of evidence.

Mediation permits the parties to explore issues that are not strictly legal in scope and recognize common goals.



TOP TEN REASONS TO MEDIATE

Portions of the following text excerpted from an article by Beth Byster Corvino and Irving Levinson

1. Your company should mediate both hard and easy cases whenever you think there is an opportunity to settle a dispute before litigation, or even halfway into litigation, rather than at the end of the long, costly road to the court house steps. This number one strategy favoring early mediation is critical and has few exceptions.

2. Mediate highly emotional disputes where parties need an opportunity to vent, and a skilled mediator can provide a constructive forum, sympathetic ear and necessary umpiring.

3. Mediate when there is a desire to maintain or resurrect a positive business relationship with the other side. Mediation is a far better forum than arbitration or litigation for striking new business deals or cleaning up old ones.

4. Mediate when your company’s dispute involves highly confidential or embarrassing information one or both sides may want to keep private. Discrimination cases, precedent setting products liability cases or cases with extremely prejudicial smoking gun evidence are cases a business should aggressively seek to resolve in a non-public forum.

5. Mediate when the other side has greater resources or better staying power to wage protracted legal battles. Often, however, even the largest and most profitable businesses lack the desire or stomach to engage in the years of litigation that may be necessary to obtain the best result. After all, these businesses have become profitable by being good at what they do, not by diverting management resources to long, drawn out courtroom battles. If you represent such a litigation adverse company, your proactive efforts to mediate will be appreciated.

6. Mediate bet-the-company cases, punitive damages cases, big cases, small cases and cases in between. The worst that will happen is your mediation will not proceed. Bear in mind, though, that mediating at the right time, using intelligent strategies, and thoughtful planning. maximizes the likelihood of a successful mediation and a practical, less painful, less costly solution for your client.

7. The other side must be persuaded the positive benefits of the mediation settlement process are driving your invitation to mediate, not weakness, fear or a belief a particular mediator may force a favorable result for one side.

8. Mediate before rancorous trial counsel become invested in the litigation process. You have very little downside to attempting a mediation and possibly great savings in cost, time, executive stress and corporate goodwill if the mediation is successful. Even if the mediation only settles a few issues, it will save many days of trial and motion work later.

9. Do not give up on mediation simply because the contract in dispute has a binding arbitration clause. Invite your arbitration adversary to the less expensive, more flexible mediation table. You may want to have different people serve as your mediator and arbitrator.

10. If you are mediating sensitive non numerical issues, such as ongoing business relationships or labor disputes, the mediator should be well versed in the creative processes of bringing people together. In this instance, a former judge or trial lawyer may not bring the requisite people skills to the table.


HOW TO SELECT THE BEST MEDIATOR

Portions of the following text excerpted from an article by Beth Byster Corvino and Irving Levinson

1. In selecting the best mediator for your case, consider the nature of your case and the personality type your client and the opposing party will best relate to. Determine whether you want someone who will more likely try to dictate terms of a deal, or someone who will more likely act as a neutral facilitator of the settlement process. Also, consider whether your potential mediator has industry or company biases. Highly technical issues may require a mediator with special expertise or business experience.

2. One of the most inviting features of mediation is the ability to hand pick the trained professional who will conduct your mediation. Do not select your mediator casually, without careful consideration.The role of a mediator, whether a strong or weak one, is central to the process. If you do not exercise great care in selecting your mediator, you are taking a risk.

3. In some cases, the mediator’s substantive knowledge may be helpful in resolving the case. Someone who is well informed about the industry, process or other relevant substantive matter could be far more credible and effective than an experienced mediator who lacks the detailed knowledge. Look for mediators that have business experience.

4. A former judge or experienced trial attorney may provide the most respected numerical recommendations on settlement, however, these can usually be negotiated between the parties or their counsel at the mediation. Respected recommendations result in settlements. If you are mediating sensitive non-numerical issues, such as ongoing business relationships or labor disputes, the mediator should be well versed in the creative processes of bringing people together. In this instance, a former judge may or may not bring the requisite people skills to the table.

5. Approaches to mediation vary considerably. Inquire about the strategies the mediators use in trying to settle cases. You can and should interview your prospective mediators regarding their approaches, experience and mediation philosophies. Ask them directly whether they take aggressive positions in pushing the parties to settle or view their role more passively as a facilitator for settlement discussions.

6. One of the best sources of information regarding mediators is those who have mediated before them. By speaking to informed people, you not only learn who will be the best mediator but also obtain valuable insight into how your mediator will conduct the process.

7. Investigate the success rate of a potential mediator. Mediators often will tell you proudly of their rates of settling cases. A high rate of settlement is especially attractive when you are mediating a dispute in which you would like to avoid litigation at all costs.

8. Make sure, that the mediator has NOT served as an expert witness for the other side or conducted numerous other mediations for them. These potential conflicts may not be absolute reasons to veto a mediator, but they should be explored thoroughly before the selection is made.

9. Make sure, that the mediator has liability insurance in place.


HOW TO SELECT YOUR COMPANY REPRESENTATIVE

Portions of the following text excerpted from an article by Beth Byster Corvino and Irving Levinson

The company representative in mediation, quite often, becomes a very active, important participant in the process. Carefully select the best people to attend the mediation. Some of the factors that should be assessed include the corporate/political hierarchy, authority to make business deals and the personalities of the prospective participants, including whether there is bad blood between the parties. The substantive knowledge of the prospective participants, and whether people have a vested stake in protecting their good reputations are also factors to be considered.

Negotiate who will attend the mediation with the other side or the mediator if necessary. The more specific the agreement is as to who will attend, the less likely it is that one or both parties will be unpleasantly surprised by who shows up on the day of the mediation. The vague statement that someone "with authority to settle will attend" provides minimal protection against bad faith mediating by the other side.

Sometimes personal chemistry counts more than anything else. Often the best chances for a settlement are obtained by people who are adept at resolving disputes, bringing people together and finding creative solutions. Look for such a person to serve as your company representative.

Work with your company representative about what the answers should be to tough questions. Explore what they will say if asked particular questions by the mediator or the other side. It may be wise to hold a practice mediation in advance to help reduce anxiety and to organize the presentation and responses to issues raised by the other side.

Do not forget the mediator as your secondary audience. Take every opportunity to give the mediator ammunition for later in the day, when he or she is meeting privately with the other side. Do provide examples, and do not hesitate to highlight favorable facts, arguments and reasons that support your case.


WHEN NOT TO MEDIATE

Portions of the following text excerpted from an article by Beth Byster Corvino and Irving Levinson

Business disputes are not like fine wines. They do not grow better with age. Yet, there are cases where forceful discovery, disruptive motions or simply growing distaste of litigation by the other side may suggest deferring mediation efforts.You may want to get your somewhat problematic motions on file and then mediate before a ruling. You may want to take precise, focused, damage discoveries, or document discovery generally, prior to initiating the mediation process. You may want to depose the other side’s weakest witness, perhaps the disgruntled ex-employee, before attempting to settle through mediation.

Do not mediate cases when your company needs to set a legal precedent. Mediating away a particular employee severance benefit issue may not provide the recorded precedent for future benefits decision making. Similarly, the weakest of 100 product claims should, perhaps, be tried if it can be won rather than mediated.

Do not mediate those few cases where public vindication is the most important objective. Be careful this strategy does not backfire. Public vindication can turn to public humiliation if the courts rule against you. Even if you are successful at an appeal, the damage to reputation and goodwill may be irreparable.