The Attorney, The Client, and The Mediator

By Brian Jerome, Esq.

Many attorneys recall law school being focused primarily on developing strong advocacy and trial expertise, with less emphasis placed on developing negotiation skills. Litigators rightly pride themselves on strong defensive skills; it is this ability and willingness of an attorney to effectively try their case that creates the opportunity to reach more favorable pre-trial settlements for their clients. However, with less than 3% of cases actually going to trial, focusing on negotiation, mediation, and settlement of cases is widely beneficial.

A mediator is an expert in the complex process of negotiation and settlement of disputes. An effective mediator orchestrates a mediation like an efficient business meeting. S/he creates a dynamic, structured and respectful climate, and sees that all parties, as well as their counsel and/or their insurers, have the opportunity to express themselves as needed to generate a full understanding of all aspects of the conflict, both material and human. S/he helps the parties focus on their fundamental needs and priorities and seeks out and encourages common ground in order to arrive at a satisfactory settlement.

An experienced mediator also goes beyond simple facilitation of the process, exploring the parties’ positions, raising important questions, reality testing, and focusing the participants on potential strengths and weaknesses of their case. The mediator helps the parties identify their key interests and has the ability to cut through posturing and argumentativeness to help parties achieve resolution.

An attorney’s role in the mediation process, as advocate and advisor to their client, is to suggest when mediation is appropriate, whether before suit is filed, or during/after the discovery process. The attorney must also explain the mediation process and benefits, suggest mediator selection, and prepare their clients to take full advantage of what mediation offers. The attorney advises the client on substantive case law, anticipated opposing arguments, potential risks, a realistic valuation of the case, and a range of possible outcomes – all prior to mediation.

Confidentiality plays a vital role in mediation; it’s important that clients understand confidentiality both under the terms of the written mediation agreement in effect as well as by applicable statutes or laws, such as in Massachusetts MGL c. 233, s.23c. Clients who know that their private discussions with the mediator are confidential speak more openly about their case and personal interests, which allows the mediator to better foster a resolution that meets the needs of all involved.

Some attorneys tend to limit their client’s active engagement during the course of the mediation session. While in some cases limiting a client’s participation may be advisable, i.e. where the client has a tendency to speak in a manner damaging to them, has excessive anger, and/or otherwise would disrupt the process, counsel should expect that the mediator will seek to engage the clients in discussion to assess their views, emotions, needs, and priorities. It is important for the mediator to establish a relationship of trust, openness and impartiality with all parties directly. A lawyer should consider advising the mediator in advance of the session of any client issues, such as intense emotions or unrealistic expectations so that the mediator can tailor their approach appropriately.

Some attorneys find it challenging to communicate to their client (or their insurer) weaknesses they have in their case. It can be very powerful for such parties to hear the mediator directly point out shortcomings so they can consider a more realistic evaluation. This is why all parties must attend the mediation. Participation by telephone during the mediation is a poor second to actual attendance. In such circumstances, the mediator’s ability to speak to the party or insurer is necessarily limited, and it is left to the attorney to communicate the many ebbs and flows of an ongoing mediation process to his client, which can be difficult at best for many reasons. To take full advantage of mediator input, the attorney should have his insurance client attend the session and work with the mediator directly.

Principally, a mediation is for and about the parties. It is the client’s case and s/he ultimately decides whether to accept settlement or not at the mediation, after hearing the advice of their counsel. To many, the session is equivalent to their day in court, an opportunity at long last to express their arguments, perspectives and feelings to both the opponent and an expert, impartial mediator, who is there to listen and help promote resolution.
The relationships involved in a mediation are at the heart of resolving the matter.

To learn more about this and other ADR-related topics, visit us at

This shortened article was printed in Massachusetts Lawyers Weekly (April 27, 2015).  For a full and more detailed article, please click here.

Sheri Stevens Awarded Excellence in Operations

Massachusetts Dispute Resolution Services’ Sheri Stevens was recently announced as honoree in Lawyers Weekly Excellence in the Law’s Category of Excellence in Operations.

As Business Manager, Sheri executes and oversees all daily operations at MDRS; we can’t think of anyone more deserving of this award.

Massachusetts Lawyers Weekly will honor Sheri, as well as honorees in other categories including Up & Coming Lawyers, Excellence in Pro Bono, Paralegal, Marketing, and Firm Administration, at its upcoming 2015 Excellence in the Law event in Boston on May 14th.

The Massachusetts Bar Association, Lawyers Weekly’s partner in this event, will be announcing their honorees for Judicial Excellence and Excellence in Legal Journalism as well. The annual event celebrates excellence throughout the legal community and MDRS is excited to be a part of the occasion.

Please join us in congratulating Sheri on this well-deserved and esteemed award.

MDRS Presents ADR Techniques to Nigerian…

MDRS is honored to again have been asked to present on alternative dispute resolution to a high-level delegation from Nigeria visiting the United States seeking out information on ADR so that they can further such implementation in their country. This is the third year that MDRS will have the honor of working with this admirable group of dedicated policy-makers. The presenting panel, featuring veteran MDRS Neutrals Attorney Brian R. Jerome and Attorney Paul R. Kelley, will again be joined by Massachusetts Superior Court’s Associate Justice Dennis J. Curran.  We are delighted to welcome Massachusetts Superior Court’s Associate Justice Shannon Frison to our group presentation this year as well. The event on Tuesday, August 19, 2014 will include a number of esteemed, high-level Nigerian Judges and Attorneys traveling to the United States to work with the University of Massachusetts Center for Peace, Democracy, and Development who desire in-depth information about ADR and how it can help their country and their judicial process. MDRS is very pleased that such a distinguished group will join us for this noble and interesting discussion. We are excited for the event and to share the numerous benefits of ADR with those around the world.

Jeanne M. Kempthorne selected for Super Lawyers

We are pleased to announce that one of our distinguished neutrals, Jeanne M. Kempthorne, has been recently selected for inclusion in Super Lawyers 2013 by Thomson Reuters.

Super Lawyers is a rating system for lawyers in a range of practice areas that uses a patented multiphase selection method to choose only the best attorneys to hold the title. The rigorous and discerning selection process includes peer nominations, evaluations of professional achievement and third-party research to ultimately choose only the most exceptional attorneys in each practice area. Super Lawyers provides a comprehensive listing of esteemed attorneys, an unmatched database for those seeking quality legal counsel.

We are proud to have Attorney Kempthorne on the MDRS team, and hope you will join us in celebrating this much deserved accolade. You too can work with this super lawyer, who is available to help you mediate or arbitrate your cases by calling MDRS at (800) 536-5520.

MDRS Spotlight on Premises Liability

According to a recent statistic, the National Safety Council reported that slip and fall accidents account for 1 million visits to the ER per year.  And these account for only a fraction of premises liability cases, which can occur from any injury suffered on property belonging to or maintained by another person or party.  Premises liability cases can be complex and unique, with many factors that can impact an individual case.  After all, where premises liability is concerned, it can be difficult to prove whether the fault is on the injured party or the owner of the property where the injury has occurred. Those involved in these unfortunate accidents deserve fair resolution.

Using Alternative Dispute Resolution to settle these types of cases can often be the best choice for both parties. Rather than waiting years to resolve their case, both parties will be able to come to an agreeable settlement without leaving the decision in the hands of the court system.

What makes ADR the best choice for resolving these cases? Control is in the hands of those involved and a settlement can be reached that is fair and acceptable to both parties.  In addition, a case can be handled quickly, at the pace determined by those involved, without sacrificing valuable time and money, which is often a consequence of cases brought to trial.

At MDRS, we have knowledgeable and skilled mediators who have a multitude of experience handling premises liability cases.  Whether it be a building maintenance issue, a construction site incident, the use of defective tools or equipment, an animal attack or a workers’ compensation claim, our mediators have seen and handled it all, including the resolution of thousands of slip and fall cases.  Now, more than ever, ADR is the answer.  See our Areas of SpecialtyPremises Liability page for more information on how we can help resolve your case.

Neutral Thomas B. Arnold, Esq. is Retiring

Thomas B. Arnold, Esq.As of July 1st, neutral Thomas B. Arnold, Esq. is retiring.  A graduate of Princeton University and Harvard Law School, Mr. Arnold began his law career as a civil litigation attorney before starting his own firm, Arnold & Kangas, PC, in 1983.  During his years as an attorney, he handled a vast range of civil litigation cases.  He began practicing ADR in 1989 and has been chosen as arbitrator or mediator in well over 1,800 cases. Since 2001, he has worked exclusively as a neutral.  It has been a pleasure working with Tom over the years, and although both his colleagues and clients will be sad to see him moving on to the next step in his journey, knowing that it will include spending more time with his children and grandchildren surely enables us to celebrate this accomplishment!  We are very grateful for the years Tom served on the MDRS Panel of Neutrals and wish him all the best in his retirement.

MDRS Welcomes New Neutral, James Purcell


James E. Purcell

Jim has a long involvement with ADR both as a practicing attorney and as the CEO of Blue Cross & Blue Shield of RI.  As a trial lawyer, Jim represented clients in mediations and arbitrations.  He was a charter member of the ADR Panel of the US District Court for the District of RI and conducted court assisted mediations and early neutral evaluations, until he left his practice in 2000 to become first the COO and later in 2004, the President & CEO of Blue Cross RI. He remained CEO until he retired effective December 31, 2011.  He practices independently and focuses solely on ADR as facilitator, mediator, and arbitrator.  As an attorney, he focused on the resolution of complex business disputes, particularly in healthcare.  Jim has sat in mediations both as counsel and as client.  He understands both perspectives.  He takes an active role in moving the parties toward resolution.  He believes pre-meeting preparation is very important.  Jim makes it clear how he will conduct the proceeding to minimize surprises to counsel.  At the onset of the mediation or facilitation, he will set the tone with the clients, making them understand this is not about mad dog litigation or “winning,” but rather settling.  Counsel will tone down their arguments in hopes of a civil, courteous and respectful dialogue.  ADR, particularly in the healthcare arena, is the best way to resolve disputes.  Confidentiality is key to the participants; subject matter expertise is a must; and the attorneys get to choose who will conduct the proceeding, unlike in the court system. Read more about Jim in his neutral profile.

Words of Wisdom Imparted by MDRS Experts!

Massachusetts Dispute Resolution Services is now featuring articles and interviews by members of our Panel of Neutrals, “Words of Wisdom.”

Here’s a brief excerpt from our most recent article, A Trial Lawyer’s Experience as a Mediator: A Few Brief Lessons, written by MDRS Neutral Thomas W. Porter:

On the first day of practice as a trial lawyer, my boss told me about the different cross-examination styles of the partners.  He spoke of one, a very devout Catholic, as a pugilist.  He would just come out swinging.  The witnesses would see the blows coming, but there was nothing they could do.  He would leave them a bloody pulp.  Another partner was a Quaker and a very kind man.  His style was different.  He used a stiletto.  Often the witnesses would not see it coming and sometimes they wouldn’t even feel it going between the ribs, but the result was the same, a pool of blood underneath the chair.

MDRS is pleased to highlight our diverse team of Neutrals, their various backgrounds and experiences, in order to better serve the Alternative Dispute Resolution community.

We would love to hear from you–please post your comments regarding “Words of Wisdom” articles and interviews on the MDRS Facebook page.


MDRS ADR and Mediation Video

Please enjoy a short video, also featured on YouTube here, in which I talk about the advantages of mediation and alternative dispute resolution.

– Brian Jerome

MBA CLE Mediation Program

The Massachusetts Bar Association CLE Program, Shuttle Diplomacy: Winning Your Mediation During the Private Sessions, is “designed for both plaintiff and defense lawyers who regularly mediate or for those just getting into the game.” I am pleased to be a part of an experienced faculty team whose goal it is to help the continuing of legal education in the following areas:

Winning in private sessions;
Avoiding common pitfalls;
Using bracketing to your advantage;
Deciding how much information to give each party.

I’m looking forward to our webcast Tuesday, September 27, 2011, from 4pm-6pm at the Massachusetts Bar Association headquarters at 20 West Street, Boston, Massachusetts, 02111.

For additional information, please see the MBA website here, or contact me at