DR Videoconferencing: Fitting the Forum to COVID-19

As published in Massachusetts Lawyers Weekly

The COVID-19 virus is affecting us all both personally and professionally. As of this writing, courts and many borders are closed, travel has been severely restricted, and even physical contact with one another is being discouraged (i.e., social distancing). All attorneys are now challenged with how to best represent their clients in this rapidly-evolving environment.

Dispute Resolution [DR] professionals must now coordinate all of our communication and technical options to continue to deliver the best possible support to the legal community and other clients. Though Online Dispute Resolution [ODR] has not typically been the most preferred method of solution delivery, the current state of crisis simply demands it.

Our own Massachusetts DR pioneer, Professor Frank E. A. Sander, prophetically published in 1994 a ground breaking article calling DR Fitting The Forum to the Fuss. Twenty-six years later this goal remains the same: we must continue to ask ourselves how the DR Industry can Fit The Forum to the Fuss in response to the global pandemic crisis.

In reality and for some time now, DR processes cannot be viewed as simply scheduled face-to- face physical encounters. Rather, from beginning to end, DR providers have been employing a variety of communications utilizing telephone, email, online tools, and in most cases still traditionally involving face-to-face sessions, where all parties with needed settlement authority and interest participate in person.

Most DR professionals will likely agree that face-to-face physical presence of all interested parties at a mediation session, for example, remains the preferred choice in resolving disputes. The complex dynamics and emotions of participants and the full range of neutrals’ interpersonal skills are perhaps best realized when the parties can reach out and touch each other.

However, DR’s historic reliance on physical meetings has been steadily eroding as ever improving online options, such as video conferencing, have become more efficient and user friendly. Many of us have become familiar with and enjoy using programs like Skype and FaceTime in our personal lives. Growing numbers of legal professionals are seeing the advantages of using advanced video conferencing services such as Zoom or GoToMeeting when a face-to-face meeting is either not possible or not preferred.

COVID-19 has not only nearly paralyzed the court system, but their ordinary backlog will continue to grow significantly with mandated closings. Many businesses, insurance claims handlers, lawyers, and individuals must currently and for the foreseeable future restrict their travel. Now more than ever it is the DR community that offers a forum to meet these challenges, employing the full array of technological advances, including [but not limited to] video conferencing to resolve disputes where all of the parties may not be able to meet face-to- face.

The cutting-edge technology of today’s video conferencing affords all parties the opportunity to fully participate with ease of use from offices, homes, or virtually anywhere – simply with phone in hand. Participants need not go to great costs to participate by video conference. All that is needed is a desktop, laptop, iPad, or cell phone that has a working camera and microphone. If devices don’t have a camera, inexpensive clip-ons that plug into the USB port can be purchased inexpensively online or at retailers. You might ask your DR provider for a trial run using videoconferencing before scheduling your next case.

Innovative DR providers have the facilities and technology to create sessions where some or even all of the participants cannot attend in person. Software applications such as Zoom, GoToMeeting, and others are tailored and administered by the DR provider to seamlessly fit the more traditional processes we all know, such as the joint meeting and private caucuses in mediation. Technology now allows the mediator to conduct advanced shuttle diplomacy, choosing who they speak to in private and when, even when participants are only doing so online.


While it is the COVID-19 virus bringing video conferencing to the fore for so many, incorporating video conferencing in the DR process has significant recognized advantages.

Cost savings has always been a key benefit of DR processes, and incorporating ODR technologies eliminates travel expenses, allows for quicker communications, and also provides more flexibility in scheduling. Documents can be easily shared during online sessions, and secure and encrypted document signing can be accomplished, critical, for example, to the all- important execution of a Mediation Settlement Agreement.

Quite frankly friends, these solutions will keep people in business.

So….please stay safe in these difficult times and look to DR as you Fit the Forum to Your Case.

 

Brian R. Jerome, Esq.

Founder and CEO

Massachusetts Dispute Resolution Services Boston and Salem, Massachusetts

Mediation and Arbitration Video Conferencing

Dear Friends and Colleagues,

We’re committed to staying one step ahead of COVID-19 restrictions.

Though our ‘new normal’ is rapidly evolving, we’ve been working hard to remain your choice as The Dispute Resolution Resource.

You can mediate, arbitrate, and settle your cases using online video conferencing.

Together, we can keep reaching resolution. MDRS has state-of-the-art video conferencing facilities both within our offices as well as virtually (through your computer, tablet, or mobile device). We utilize Zoom, the awardwinning app that provides the resources businesses need to most effectively navigate Dispute Resolution through the coronavirus pandemic.

We can easily schedule your Mediation or Arbitration with some or even all of the needed
participants joining virtually and in a manner similar to how you would participate in a faceto-face session.

Zoom allows us to provide both joint sessions and private caucusing capabilities
seamlessly, and together with MDRS trained staff and neutrals, will help your business
maintain operations through this crisis and beyond.

BENEFITS of ONLINE DISPUTE RESOLUTION with ZOOM and MDRS:

  • Easy connection and ease of use
  • Stress-free 1:1 practice sessions as needed with our trained staff
  • Join in from any location and on any device, whether a desktop computer, a laptop
    or even your cell phone, all while maintaining employee safety. If needed, even an
    inexpensive clip-on camera attached by USB to your PC or laptop will get you up,
    running, and visually connected.
  • Built-in collaboration tools such as private chat, screen sharing, white-boarding,
    [shared or private] document viewing
  • Ultra HD video and audio
  • Scheduling available NOW!

Click here to Download the free Zoom client

Schedule your video conference now or let us answer any questions you may have by
emailing caseadmin@mdrs.com or calling (800) 536-5520.

We are committed to providing the resources needed to help your business stay strong.

Mediating Business Disputes Effectively

By Guest Blogger Tim Langella

Business disputes come in all shapes and sizes, and often have both monetary and non-monetary elements. Here’s an interesting mediation case study:

A successful, public company is looking for a consultant to assist with a 5 year project that will be undertaken through several, ongoing work orders. The founder of a local consulting company pitches the work along with one of the consultant’s three key employees, and lands the job. The parties enter into a detailed, written agreement that specifies, among other things, how the scope of the work for a particular aspect of the project will be defined, payment terms, and what happens if the consultant breaches the contract.

The relationship is rewarding for both parties for the first two years — three separate projects are defined and completed, the consultant has hired numerous extra people to work on the various projects, and the public company is happy with both the personnel assigned to the projects, as well as the results.

During the third year, however, just a few months into the next 18-month project, the key person assigned to the account leaves the employment of the consultant. The public company, concerned about the loss of that key consultant, reluctantly decides that it no longer wishes to pursue the project without that key person assisting, and unilaterally terminates the relationship – with less than complete attention paid to the terms of the contract and the legal implications of doing so.

Instead, the public company offers to pay the consultant for all work performed up to the date of termination, plus two weeks salary for the consultant’s employees assigned to the existing project. The consultant is concerned about the loss of work/revenue, angry (and bit embarrassed) about how the termination was effected, and worried about having to lay-off several employees who have become part of the business family. The consultant counter-demands damages equal to the revenue it would have earned for the remaining 15 months of the project, thinking that will provide enough time to keep the employees on the payroll and find substitute work for them.

The parties stop talking, lawsuits are threatened and then filed, and both sides are faced with the prospect of years of expensive and consuming litigation.

Litigation may be able to resolve the financial aspects of this dispute – after months, if not years, of paying lawyers and experts to sort through the relevant information. But it will never resolve the personnel issues the consultant faces as the owner of a small business, or the reputational concerns the consultant has from being suddenly terminated from what it thought was a successful relationship. Nor will it allow the public company to address in a private and confidential setting a messy contractual dispute which resulted from its failure to follow agreed upon contractual terms.

Mediation is the best option to contend not only with the monetary dispute, but also with the other factors that have arisen. Mediating such a matter not only keeps decision-making in the hands of the parties, but also offers the best chance at salvaging at least some of the work on the disputed project, preserving the parties’ relationship for future work together, and negotiating important issues such as recommendations that the consultant can reasonably expect from the company for the work it successfully completed over the years.

An experienced mediator, skilled in business disputes, can help the parties air and resolve all aspects of their grievances in a controlled and confidential setting. Quickly, efficiently, and less costly than protracted litigation, mediation offers unparalleled creative problem-solving opportunities.

Why Collaborative Divorce is Different & Better

By:  Anthony C. Adamopoulos
MDRS Neutral and Guest Blogger

THE DIFFERENCE:

The Collaborative Divorce Process is so much better because it is the only process where the attorneys are committed, by written agreement, to concentrate on settlement, AND, if they cannot get a settlement, they cannot represent you in litigation.

The difference is truly transformative in divorce law. In litigation, divorce attorneys cannot say that their first and only priority is to get a settlement. Collaborative Attorneys can and do.

THE PROCESS:

First, you must be committed to a quick and less expensive resolution of your divorce; rather than winning in court litigation.

Once you are committed to a quick and less expensive resolution, you each select your own Collaborative Attorney who is specially trained to practice Collaborative Divorce. Not all attorneys are certified to be Collaborative Attorneys.

You, your spouse, and the two attorneys then sign a contract committing all efforts to resolution.

The next real difference from litigation is that you and your spouse, with the guidance of your Collaborative Attorneys, will then use two key experts – a Financial Neutral and a Facilitator Neutral. Your Facilitator expedites the process by helping you and your spouse identify short and long term goals and overcome inter-personal roadblocks. Your Financial Neutral expedites the process by analyzing the unique needs of your family, identifying tax provisions related to those needs and creating realistic plans to preserve family income and property. And, the neutrals will bill at fees below the attorneys’ fees. This means that unlike other divorce situations, if, for example, you and your spouse disagree over a parenting plan, the Facilitator Neutral will help resolve the parenting problem at a lower rate than the attorneys’ fees. Or, if there is a disagreement over whether to sell the house, the Financial Neutral will work on a resolution rather than the two higher paid attorneys.

In resolving issues that are delaying settlement, neither the attorneys nor the neutrals will be concerned about “winning”; they will concentrate on meeting the real needs of you and your spouse rather than any psychological “want to win”.

The Elements of Disputes

by Timothy J. Langella
MDRS Neutral and Guest Blogger

Business disputes come in all shapes and sizes, and often have both monetary and emotional elements.  Take this case, for example:

Two brothers-in-law go into business together and form a partnership or closely held corporation, after marrying their respective wives (who are sisters).  After a rocky start, the business is soon notably successful.  The two couples are close:  they work, vacation, and even socialize together.  They each start a family and the cousins seem like siblings for many years. But as the cousins age, they grow apart, causing tension among the four parents.  Small issues become large ones, tensions escalate, and the previously-strong partnership is in peril.  The men begin to bicker and argue at work, one claims the other is not as dedicated to the business, and claims of unreasonably-inflated business expenses are made – and categorically challenged.  Eventually, the two sides don’t even speak to each other, the sisters are alienated, and a lawsuit claiming breach of contract, fraud, and breach of fiduciary duty is filed.

Litigation may be able to resolve the financial aspects of this dispute – after months, if not years, of paying lawyers and experts to sort through the relevant information – but it willnever resolve the family dynamic issue.  Mediation is the very best option to not only contend with the dispute, but to deal with the factors that have also arisen beyond the business issues.  Mediating such a matter not only keeps decision-making in the hands of the partners, but also offers perhaps the best chances at preserving (hopefully improving) these complicated relationships.

An experienced mediator, skilled in partnership disputes, can help the parties air and resolve all aspects of their grievances.  Quickly, efficiently, and less costly than protracted litigation, mediation offers unequalled ROI.

What is the Difference Between Divorce Mediation and Collaborative Divorce?

MEDIATION is an independent, voluntary, confidential process conducted by a mediator, who is neutral. Attorneys are not required. The mediator will:

  • Assist you and your spouse in identifying those issues preventing settlement.
  • Explore various avenues to resolution.
  • Develop a settlement resolution acceptable to you and your spouse.
  • Will prepare a Separation Agreement for presentation to the Court. (Only mediators who are attorneys may draft Separation Agreements.)
    The two of you will select the mediator. The mediator’s fees will usually be split between the two of you, however, the two of you may agree to a different responsibility for the fee.

The major benefits of Mediation are:

  • The mediation is private.
  • The mediator will provide all the time you and your spouse need to work on a resolution.
  • Experienced mediators have settlement rates of between 85% and 97%.
  • An attorney need not be present at mediation sessions.

In COLLABORATIVE DIVORCE, you, your spouse, your Collaborative lawyers and Coaches make up the Collaborative Team. The Team has one goal, the quick and efficient resolution of all issues without trial litigation.Coaches make your divorce process efficient and usually less expensive. The most common Coaches are the Facilitator and the Financial Neutral. The Facilitator expedites the process by helping you and your spouse identify term goals and overcome inter-personal roadblocks. The Financial Neutral expedites the process by analyzing the financial needs of your family, identifying tax provisions related to those needs and creating realistic plans to preserve family income and property. Coach hourly fees are often much lower than attorney hourly fees.

In Collaborative Divorce, attorneys are specially trained and certified.

Your Professional Collaborative Team will:

  • Identify issues regarding the children, support and property division that are preventing resolution.
  • Divide primary responsibility for resolving those issues. For example, issues dealing with the children will be addressed primarily by the Facilitator Coach; issues about the amount of support needed will be addressed by the Financial Coach.
  • Have the required Separation Agreement, Petition for Divorce and Affidavit prepared, executed and filed.
  • Have your attorneys accompany you to the Probate and Family Court for your divorce hearing before a Judge.


The major benefits of Collaborative Divorce are:

  • From beginning to end, you are with and “supported” by a team dedicated to getting you and your spouse divorced quickly and efficiently.
  • All issues are dealt with and resolved in confidential sessions.
  • Your attorneys handle all the administrative court matters to get your divorce papers filed, docketed and scheduled for a hearing.
  • At your divorce hearing your attorneys will respond to questions of the judge, thereby avoiding rescheduling of the hearing because you did not have an attorney to correctly answer questions.


by Anthony C. Adamopoulos

How Long Does It Take to Get a Divorce Through Mediation?

The time it takes to get “through” the Mediation Process initially depends on whether or not each party returns a properly completed Probate and Family Court Financial Statement. The Mediator needs a correct Financial Statement for many reasons. An insufficient Statement causes delay and increased cost. At the outset, the Mediator will provide clients with the form and instructions.

To complete the Divorce Mediation the mediator will guide the parties through any issues surrounding the three major components of a Separation Agreement – the children, support and division of property.

The length of time it takes to resolve each component is directly related to the amount of disagreement on each component.

For example, if the parties have already agreed on how many over-nights the children will spend at each parent’s home, they have essentially resolved about 1/3 of the Divorce Mediation. The same applies to support. If the parties agree with the accuracy of each other’s Financial Statement and their respective post-divorce financial needs, they will also have resolved 1/3 of the Divorce Mediation. Lastly, if the parties agree on the accuracy of each other’s Financial Statement and have already decided how the property listed on each Financial Statement will be divided between them, then they will have resolved 1/3 of the Mediation.

Assuming a fact pattern similar to the above, then the mediation can be completed in less than three hours. There remains only the preparation of the formal Divorce Separation Agreement by the mediator. (Only divorce mediators who are attorneys can prepare Divorce Separation Agreements.) Under the above scenario, it would take about one and half hours or less to prepare the Agreement.

So how long does a divorce mediation take? About four to five hours if the Financial Statements are accurate and the parties are in agreement as to the major issues.

by Anthony C. Adamopoulos

Read the Original Blog Here: https://www.divorcingoptions.com/Blog/?p=346

Stuck in Divorce Court? Here is Your Last Chance to Cut Costs and Aggravation

By Anthony C. Adamopoulos

Are you in divorce litigation?

Are you having second thoughts – time standards, discovery cost, no trial in sight? Enough!

You have complained to your attorney and your attorney reports that your spouse’s attorney has heard the same complaints from your spouse. Your attorney suggests mediation or conciliation.

What is the difference between Divorce Mediation and Divorce Conciliation?

Mediation is an independent, voluntary, confidential process conducted by a mediator, who is neutral. The mediator will:

-Assist you and your spouse in identifying and discussing those issues keeping the two of you from settlement.

-Explore with you and your spouse various avenues to resolution.

-Develop a settlement acceptable to you and your spouse.

-The two of you will select the mediator. The mediator’s fees will be split between the two of you or paid as the two of you agree.

The major benefits to Mediation are:

-The mediation is private. There is no report to the Judge.

-The mediator will provide all the time you and your spouse need to work on a resolution.
Experienced mediators have settlement rates of between 85% and 97%.

-If the mediation is in the 3-15% that fail, you and your spouse may enter a written agreement (stipulation) stating that all that was agreed to in the mediation shall not be litigated at trial.

The major negatives to Mediation are:

-The Mediator is paid.
-If the mediation is in the 3-15% that fail, the parties will have to return to the litigation process for the unresolved issues.
-Since you are in litigation, you must get permission from the judge to “take a time out” for mediation. Your attorney will handle this.

Conciliation is a court related process in which a court appointed neutral (the Conciliator) assists parties to resolve their case by:

1. Clarifying the issues preventing a settlement; and then
2. Assessing the strengths and weaknesses of each side’s arguments; and
3. If the divorce cannot be resolved, then the Conciliator explores the steps which remain to prepare the case for trial.

The Court usually allocates two hours for the Conciliation session. The Conciliator is not paid, but there is an administration fee, currently $50.00 per party.

The major benefits to Conciliation are:

-The trained Conciliator will assess your “side” and your spouse’s “side”. You will then be able to consider the assessment in planning your next step, e.g., trial or settlement.
-The Conciliator does not get paid.

The major negatives to Conciliation are:

-The Conciliation lasts a short time, contrasted to Divorce Mediation.
-The Conciliator may report her/his assessment to the Judge and any opinion as to whether someone is not acting in good faith.

What should you do?

Statistically, 97% of divorce litigation will settle within days of the trial. That means, even though you and your spouse each paid an enormous amount of money to get ready for trial, it may never happen (97% of the time).

The sensible thing is to avoid more costs now, stop the litigation, and settle your differences in mediation or arbitration.

Read the original blog here

Divorce Arbitration is the Way to Go! So……

by Anthony C. Adamopoulos

A decision of our Appeals Court, Gravlin v. Gravlin, is helpful for those facing divorce.

For collaborative divorce attorneys and divorce mediators, the decision confirms that arbitration is the viable alternative to court litigation for resolving a single issue or even taking the place of a full court trial.

In Gravlin, the Appeals Court acknowledged “… arbitration has long been recognized as a valid means of resolving disputes between divorcing parties.” This Blog has often praised the value of arbitration as an alternative to divorce litigation; with Gravlin, the Appeals Court stamped an imprimatur of sorts on divorce arbitration.

While arbitration is available to replace a public court trial, it is also available if collaboration or mediation reaches a deadlock (a stalemate on one or two remaining issues); then, it is time for divorce arbitration.

When parties follow a simple process, the Appeals Court promises a “… strict standard of review [that] is high[ly] deferential…” to an arbitration award.

What does the simple process involve? The simple process requires that:

Respective counsel advise each party.
Parties freely enter an Agreement to Arbitrate.
Parties knowingly waive a court trial and submit to arbitration.
If there is any trial court review of an arbitration award, the review will be limited to determining:

The arbitrator’s award was confined to what he/she was asked to decide;
The award did not give relief that is prohibited by law;
The award is not based on fraud, arbitrary conduct, or procedural irregularity in the hearing.
(In my experience, the selection of an experienced, knowledgeable arbitrator will result in a positive review and enforcement of the award.)

For collaborative attorneys and mediators, Gravlin is another reason to recommend arbitration for settlement stalemate.

For parties facing divorce or divorce stalemate, arbitration is an alternative to a costly, lengthy and publicly litigated trial.

Anthony is a divorce arbitrator, collaborative attorney and divorce mediator. His office is in Salem.

Brian Jerome selected as Super Lawyer for 2018

FOR IMMEDIATE RELEASE:

BRIAN R. JEROME, MDRS Founder and CEO, selected as 2018 Massachusetts Super Lawyer

DR Industry leader Brian R. Jerome brings valuable knowledge and experience of out-of-court Dispute Resolution to those seeking mediation and arbitration solutions as a means to achieve faster, less frustrating, and more effective resolution to business and personal disputes.  

October 30th, 2017 – BRIAN R. JEROME, MDRS founder and CEO, has been selected to the 2018 Massachusetts Super Lawyers list.  Each year, no more than 5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.  The result is a credible, comprehensive, and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.  For more information about Super Lawyers, visit SuperLawyers.com.

Attorney Jerome, Chair of the Massachusetts Bar Association’s DR Section, is available for questions and interviews.

About MDRS – With offices in Boston and Salem (MA), Massachusetts Dispute Resolution Services (MDRS) provides a full range of out-of-court mediation and arbitration services to private individuals, attorneys, business, labor, and the insurance community.  MDRS, one of the first DR providers in Massachusetts, offers a professional panel of over 35 select neutrals, including retired judges and experienced attorneys.  Including cases handled by the panel, they have resolved more than fifteen thousand cases for their clients.  Massachusetts Dispute Resolution Services provides mediation and arbitration services to parties seeking equitable settlement of their disputes without the time, expense, and frustration which often accompany the more formal trial court system.  MDRS neutrals provide a wide spectrum of experience paired with a wide range of dispute resolution processes designed to meet the parties’ interests in solving disputes equitably and skillfully.

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If you would like more information, please contact Marketing Director Sheri Wilson at (800) 536-5520 or swilson@mdrs.com.

Massachusetts Dispute Resolution Services (MDRS)

60 State Street, Suite 700
Boston, Massachusetts 02109
Phone: (800) 536-5520
Fax:     (978) 741-2368
http://www.mdrs.com