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.

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.

Child Support Guidelines Changes & Parenting Time

By  Anthony C. Adamopoulos, Member of the MDRS Panel of Neutrals/Guest Blogger

The current “old” Child Support Guidelines provided a separate child support calculation where, for example, the father shared “financial responsibility and parenting time” of greater than one-third but less than fifty percent of the time.

This usually meant that if, for example, the father was with his children more than one- third of their time he was going to pay less child support than the father who is with his children about a third of the time. This adjustment is dropped under the new Guidelines announced on July 18th and formally effective on September 15, 2017.

While the formal effective date is not until September, experienced divorce attorneys, mediators and arbitrators have started using the new Guidelines.

Article originally published here: http://www.divorcingoptions.com/Blog/?p=260

Celebrate Conflict Resolution Week October 16-22

In 2005, the Association for Conflict Resolution [ACR] designated the third Thursday in October as Conflict Resolution Day, and later, the American Bar Association [ABA] designated the third week of October as Mediation Week.  Over the past decade, many states and other organizations have proclaimed days, weeks, and months in this honor, acknowledging the commendable and empowering services provided to all people via the many methods which comprise Dispute Resolution.

The DR Section celebrates this week with you to raise awareness about the availability of proven dispute resolution services to lessen the time, economic, and emotional costs of prolonged litigation, and the settlement of conflicts at every level.  We encourage users and practitioners to
focus this week on promoting fair, equitable, and creative solutions that are acceptable to the needs and interests of all parties involved.

Do you have a favorite Conflict Resolution activity, quote, story, or wisdom that you’d like to share? Visit our Facebook page at https://www.facebook.com/MassDispute/ or email us at caseadmin@mdrs.com

A Giant Leap Forward: Dispute Resolution Drops the ‘A’ and Launches MBA Section

“Over the past decades, no area of practice has grown to have a wider impact on legal operations than dispute resolution.” -Brian Jerome

The numbers don’t lie: 95% of pending personal injury lawsuits end in a pretrial settlement (according to Law Dictionary’s website), while legal news site Above the Law reports that only 1.5% of civil cases in Massachusetts ever make it to a jury. We at MDRS are excited and grateful to have been part of this prodigious evolution in the practice of law during our 25 years of service.

Recently, our role in the DR community has taken an even more specific leadership turn. Our founder and CEO Brian Jerome spearheaded September 1 st ’s official launch of the MBA’s brand new Dispute Resolution (DR) Section. Not only does the MBA finally have a dedicated DR Section, there has been an important terminology advancement as well: previously known as Alternative Dispute Resolution, ‘ADR’ has graduated to a more appropriately-named Dispute Resolution, or ‘DR’, in reflection of its legitimate wide-ranging contributions to law.

A Resource for All

“We’re delighted with the launch of our Section, and are working hard to become the primary resource of collaboration, outreach, and service for the entire DR industry here in Massachusetts,” said Brian Jerome, Chair of the MBA’s DR Section.

The new Section is building off the dedicated efforts of the earlier committee-driven working groups to offer resources to all who wish to access them, well beyond the previously limited membership. Any MBA member can join the DR Section (at no additional charge). Participation offers many rewarding opportunities to collaborate and network with known leaders in all areas of the law, gain new information and practice skills, provide service to the community, and be part of actual industry innovation.

Goals for the 2016-17 Association Year are in development and include outreach to every law school in Massachusetts and the development of live case observation plans, establishment of an appropriate and meaningful CLE program, skills development via best practice events, focus on identifying and meeting specific needs of young lawyers and those in small firms and solo practices, and much more…all of which are being conducted with the promotion of current and future MBA membership and participation in mind.

As Massachusetts Superior Court Associate Justice Dennis Curran has expressed, “Most people don’t want to be in the legal system. [They] don’t want to go to court.” Dispute Resolution offers economical solutions, speed, confidentiality, scheduling ease, immense flexibility, high settlement rates, and in most cases, the ability to settle their case and move on with their work and lives. #DR

Mediate Disputes Between Owners and Trustees

By Jeanne Kempthorne

Life in a condominium can be challenging when neighbors do not see eye to eye—and they very often don’t. And when owners and trustees can’t resolve their disagreements, the condominium community suffers. An efficient and effective means of managing disputes is key to avoiding the “condo hell” that causes owners to sue or sell.

Mediation is an approach that is well-suited to disputes among people who have an ongoing relationship and need to work together to make decisions and solve problems. Facilitated discussion assists people with competing positions to hear each other out, prioritize issues, compromise and invent solutions, and ultimately to sign on to a deal they themselves make. Mediation offers more than a fix to an immediate problem. It can establish a mechanism for raising problems, communicating news and triaging projects. The process itself can reestablish long-broken lines of communication, breaking through stony silences and entrenched patterns of withdrawal or instant escalation.

To read the full article, please click here.

Collaborative Law, PEN Focus of MBA ADR Panel

by Attorney Michael A. Zeytoonian

Most people who are in a dispute think about mediation or arbitration as alternatives to lawsuits and litigation. But there are several other process choices that people have for how to resolve their disputes. That critical choice of which process to use is often the most important choice people make in resolving their legal issue. Among these other choices are Collaborative Law, Case Evaluation and a general approach called Planned Early Negotiation or PEN.

Four talented and experienced practitioners teamed up for a lively and enlightening panel presentation and discussion on these other approaches to resolving disputes on May 17 at the MBA office in Boston. The program was the last in a 2016 series of “Best ADR Practices” presented by the Massachusetts Bar Association’s (MBA) Alternative Dispute Resolution (ADR)Committee. Brian Jerome, Esq. of Massachusetts Dispute Resolution Services in Boston and ADR Committee Chairman, along with MBA President Robert Harnais, Esq., welcomed a full and engaged audience to the program. Jerome also announced that the ADR Committee will be expanded and transformed into the new Dispute Resolution (DR) Section of the MBA starting in September, 2016 and welcomed people to join it.

Michael Zeytoonian, Esq. of Dispute Resolution Counsel, LLC in Wellesley, opened the panel discussion and served as its moderator. Zeytoonian set the tone for these “cutting edge” DR processes, suggesting a different approach to resolving disputes by designing the DR process to be responsive to the situation. He noted that processes like Collaborative Law offer parties the flexibility and agility to be shaped to the circumstances of each unique dispute, and intentionally designed for the goal of resolving the dispute efficiently and creatively.

Paul Faxon, Esq, a transactional attorney whose firm is in Waltham, explained the basic elements and components of Collaborative Law, specifically focusing on its application in small, closely-held or family business disputes. Faxon noted that this approach’s effectiveness when ongoing relationships are important to the parties, where the parties want to control their destinies and not turn the decision-making over to a third party, and where cost and time efficiency is valued. He highlighted some of the basic elements of Collaborative Law including the open and voluntary
sharing of all relevant information and the shared retaining of neutral experts that can freely and independently serve as a resource to the negotiation process.

David Consigli, a CPA and business valuation expert with the CPA firm of Alexander Aronson & Finning in Boston and Westborough, spoke about the advantages to using a neutral expert in a Collaborative case or a Mediation. He compared the role of an independent expert providing value to all parties as opposed to being hired by either the plaintiff or the defendant. He pointed out the value of having expert information available in business break-ups or partnership disputes, as well as the importance of valuation information in business succession planning.

John Fieldsteel, Esq., a lawyer, mediator, arbitrator and case evaluator whose specialty area of practice is complex construction cases, spoke about using case evaluation as a tool and an approach that can often be transitioned into mediation or used to assist a mediation. Case evaluation gives the parties a better sense of the strengths and weaknesses of their case as well as good indication of what the range of damages would be. Fieldsteel talked about the value to the parties of giving them good information, often confidentially, about the strength or viability of their positions and how useful this neutrally given information is in reaching a settlement.

Avoiding Mediation Hazards, and getting to YES!

The expectations of the parties and their counsel or insurer coming into a mediation session play an important role in how successful the mediation process will be. Some cases come to mediation on the eve of or even after a trial, while others arrive before suit is filed or perhaps even before the parties have consulted with counsel about their dispute. In some cases, little-to-no negotiation has taken place. In others, extensive negotiations have taken place and have reached an impasse with specific parameters, or offers or demands being recognized and defined. When to go to mediation is important for both the parties and their counsel to consider.

How can the expectations of the participants impact the mediation process and the overall prospects of success, at both the essential initial stages as well as at its conclusion? And how can parties, counsel, and the mediator all take steps to avoid the pitfalls of misunderstood or unfounded pre-mediation expectations of the other side? In this article we’ll review some real-life examples of expectation pitfalls, consider what the impact to the mediation could be, and offer ideas on how to avoid the hazards which can negatively impact your chances of settling.

Over the years, I have experienced many situations which could have been avoided, if they had been identified early in the case, such as:

– a case comes to mediation with a high six-figure demand, where no offer has been made, when the defendant advises the mediator in an initial private caucus that they have authority only up to $10,000 for settlement;

– a case comes to mediation where at the beginning of the mediation session a prior settlement demand is increased significantly by the plaintiff, or a prior offer by the defendant is reduced, whether justified or not;

– a case comes to mediation where the parties have had prior negotiations, and where settlement offers and demands were made, but an impasse was reached. Now at the mediation session, one or both sides indicate they are starting at a zero offer, or at the initial demand made before negotiations began;

– a case comes to mediation where counsel or the parties have had a so-called “off-the-record” settlement discussion which set some informal expectations, but at the mediation session – either after a more formal discussion with their clients or not – a change is made from previous informal representations;

– a case comes to mediation where a party previously indicated off-the-record that a certain amount would likely settle their case, then at the mediation, makes a formal initial starting demand significantly higher than the off-the-record amount;

– a case where mediation has been suggested and deemed beneficial by the parties, where the plaintiff indicates they will not attend without a formal offer, perhaps of a minimum amount, or where the defendant will come only if the plaintiff lowers their demand to a certain number.

These scenarios can have very negative impact to the mediation session, the work of the mediator, and any future collaboration between the parties. Some general reactions I have heard from parties in these scenarios show the problematic effect:

“If I knew that was the other side’s position, I would never have come to mediation.”

“They should have told me that before coming today; they’ve wasted my time and my client’s time. I’m going to demand they pay my expenses and our share of the mediation costs.”

“They are not acting in good faith! I’ll never negotiate with them now on this case. I’ll see them in court!”

“I am going to assert a 93A and 176D claim over this bad practice and low offer.”

“We only came to the table when we were told a certain number or range would likely settle this case, and now they are starting with an unrealistic demand. We are finished here.”.

“If that is their position, I am raising my demand [or lowering my offer].”

“Mr/s. Mediator, you have to remind counsel, and tell their client as well, that we were told off-the-record that [a certain amount] would likely settle this case.”

“Until the other side puts their last pre-mediation demand [or offer] on the table, off-the-record or not, we are not going to begin negotiating.”

“I will never mediate with this attorney and/or insurer again.”;

“I will never go to mediation again without a significant pre-mediation offer [or more reasonable settlement demand].”

“I will never use you again Mr/s. Mediator, if you can’t get the other side to commit to a realistic starting number.”

Parties, counsel, insurers, and mediators need to know how to avoid the hazards in the examples above.

Here are some ways to remedy the common hurdles:

– The parties and/or their counsel should communicate clearly with the other side their reasonable expectations of one another before coming to a mediation session, or in many cases, before agreeing to the mediation process, to avoid surprises or unfounded expectations.

– Carefully consider the downsides of changing previously expressed settlement demands or offers on the day of the mediation. If such revisions are merited or sought, consider advising the other side well in advance of the mediation session, and provide rationale for such changes so the opposing side has the opportunity to digest and review the proposition and are not surprised at the mediation.

– As best possible, reach an understanding of what the starting demand and offer will be at the mediation session to avoid surprises. Agree on what effect “off-the-record” conversations will play, if at all, at the mediation session.

– Consider having a pre-mediation conference with the mediator should some of these issues arise so the mediator might assist you in sculpting an agreed-upon mediation process to best fit the needs and expectations of all participants.

– Many cases that settle have come to mediation without pre-mediation settlement demands or offers having been made. However, parties and their counsel or insurers may well consider whether and to what extent pre-mediation negotiations, offers, demands, or other parameters may be needed in a particular case to increase the likelihood that a mediation session will be most productive and successful.

– In certain cases, the parties may need to set parameters or expectations before coming to mediation. Recognize that pre-mediation conferences or telephone calls to negotiate parameters and/or expectations before the formal mediation session begins, can mean the difference between settlement or trial.

The good news is that experienced mediators have the skills to deal successfully with all of the issues, pitfalls, and avoidable frustrations noted above. Being informed of issues in advance, an experienced mediator can arrange for pre-mediation conferences so that false expectations won’t torpedo the session ahead. Even if these issues rear their heads only when the session begins, a seasoned mediator will use his skills to help the parties navigate these choppy waters, and steer everyone’s attention to the merits, strengths, and weaknesses of the case, the true needs and interests of the parties, and the benefits of a negotiated resolution. Avoid the prolonged time, expense, frustration, and uncertainty of further litigation and trial and come to the table with founded expectations….there’s a very high likelihood you will get to YES.

Avoiding Pitfalls During Mediation Settlement

It’s 6 PM after a long mediation and all the participants are cranky and tired…but an agreement on a monetary amount has been reached! The moment the parties heard “yes”, they began packing up their files, but the mediator insists that they stay long enough for him or her to prepare a mediation settlement agreement. The responses are varied but sound like this: “Jim and I can work out the release details later this week”, or, “A handshake has always been good enough for me”. A good mediator, however, wears suspenders and a belt for the parties and does not want their hard work (or his or hers) to be lost because fifteen more minutes of attention are needed. Don’t leave now, because all of your efforts could unravel unless a written mediation settlement agreement, containing all the necessary terms of the agreement, is signed by all needed parties. This agreement need not be long and most often, the settlement agreement contemplates that a further more detailed release will be signed by theparties. I can’t stress enough that it is the best practice – and in the best interests of you and your client – to contemplate and deal with all potential issues that may arise in agreeing on the terms and specific wording of this more formal release, since the devil, as they say, is in the details. Remember: a mediation settlement agreement in and of itself is a binding, enforceable contract as long as it contains all the material terms of the agreement, even without a later, more detailed release being executed.

Here are some examples, based upon my experiences, of what may come up (too) late in the mediation process that can jeopardize the finalizing of agreements reached at a mediation session:

Let’s take, for example, a personal injury case where Bill Smith, now 68 years old, was injured four years ago while working in the course of his employment, suffering serious and allegedly permanent injuries at on off-site location. There is an issue as to whether all of his injuries were causally related to this accident as opposed to pre-existing conditions he suffered from. His workers compensation case was lump-summed, and reflected contested issues of medical causation. Some of Bill’s initial medical bills were paid by workers’ compensation, while other contested medical bills were paid by his personal health insurer. He turned 65 after the injury and now qualifies for Medicare, who has paid some of his more recent bills. The case is in suit against multiple high profile defendants who don’t want furtherpublicity, and multiple insurers are involved. Though none of the insurers had been named as defendants, Bill’s lawyer had sent MGL c. 93A and 176D demand letters to some of the insurers. Bill will need future medical care or perhaps rehab or nursing home care that may well involve further Medicare and/or Medicaid payments.

Now it’s the end of a long day of negotiation, and a final joint settlement offer made on behalf of all of the defendants has been found acceptable by Bill and his lawyer. The mediator insists upon drafting a mediation settlement agreement to be signed by all involved parties. The mediator sharpens his pencil and consults with the parties as to the terms of this mediation settlement agreement, which is to be followed by a more detailed release to be prepared by the defendants within a scheduled period of days. Here we highlight a selection of issues which may or may not have been dealt with by the parties earlier during the session…which could potentially torpedo the hard fought agreements reached:

* The mediator may be told that the defendants need a strict confidentiality clause and a non disparagement clause in the release applying to Bill, his wife, and his attorney, and to the benefit of all defendants and their insurers, and a liquidated damages clause in the event of breach. Bill’s attorney may say, “I don’t agree to confidentiality clauses, period…”, “This issue was never raised or negotiated”, “If you need that clause, you’ll need to pay us $50,000 more”, ” I intended to put this case in Lawyer’s Weekly or the Boston Globe”, “What specific language are you looking for?”, or, “I can’t agree to that, haven’t you read the Dennis Rodman case?” (Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 Tax Court rules that portion of personal injury settlement attributable to secure a confidentiality clause is taxable).

* The mediator may be told that the defendants need a defense and hold harmless agreement as to any and all claims brought by anyone arising out of this litigation. The plaintiff may be unwilling to agree, defend, or indemnify the defendants against claims brought by others outside of their control.

* The mediator may be told that the defendants, in addition to agreeing to defending and holding harmless the defendants and insurers as to any and all liens, also need lien discharge letters from all lien holders in hand before making any payment. Plaintiff’s counsel may say, “Bill or I will hold you harmless personally, but it takes too long to get lien discharge letters and Bill needs the money now.”

* The mediator may be told that the workers compensation lien holder won’t agree to a reasonable compromise, and Bill’s lawyer needs to file a Curry motion with the Court to have a judge decide the lien amount.

* The mediator may be told that the defendants need extensive and detailed Medicare language included in the release. Because Bill will need long term medical care and perhaps nursing home care involving Medicare and/or Medicaid, the defendants may respond, “We also need to set up a Medicare Trust and set aside, to protect the defendants and their insurers from potential further Medicare/Medicaid claims.” Bill’s lawyer may demand the defendant’s counsel to “Show me the specific language you need in the release”, or ask, “Why is this being brought up now?”, or indicate that they
“don’t agree that a Medicare set aside is needed in these circumstances.”

* Some of the defendants may insist on adding Medicare or Medicaid or other large lien holders on the settlement check and not allow Bill’s attorney time to negotiate these liens and provide discharge letters after which separate checks can be issued. Bill’s attorney may say, “If you put the lien holders on the settlement check I lose all leverage and will never be able to negotiate a fair compromise of these liens”, or, “It will take forever to get endorsements from the lien holders and Bill needs his money now.”

* The defendants may say, “We want Bill and his wife, individually, to sign the release, and because Bill’s late-in-life son is a minor, we need a minor’s settlement approval by the Court.” Bill’s lawyer may respond that, “These requests were never raised during our mediation”, “They are not parties to this lawsuit”, “If you want these other releases you need to increase the settlement”, or, “I’m not going to court for approval of a $1.00 payment to Bill’s son”.

* The defendant may say, “Our release must include all potential claims from the beginning of time until the date the release is signed”. Bill lawyer may respond, “No way. Our claim is confined to a specific date of injury.”

* Defense counsel may say, “The release must discharge all claims against all insurers for claims of violation of MGL. 93A or 176D claims”. Bill’s attorney may respond, “No suit was brought on these claims”, “Defense counsel does not represent these insurers”, or, “We never negotiated settlement of these claims, so you need to increase the settlement amount to discharge these claims”.

Discussing the merits of the issues raised above, or methods by which these issues can be resolved, is beyond the scope of this article. The good news is that with time, all of these issues can usually be negotiated and resolved with the help of an experienced mediator. My purpose in this article is to highlight the problems that can occur if these issues are not raised earlier in the mediation session, but rather, are left to the end. To avoid this problem, may I suggest these thoughts for your consideration:

– Parties and their counsel should understand and appreciate the importance of embodying agreements reached at a mediation session into a detailed and signed Mediation Settlement Agreement;

– All material terms of the agreement should be included in the Mediation Settlement Agreement so as to make it an enforceable contract;

– Parties and their counsel should anticipate any and all potential issues that may arise when formalizing and embodying the material terms of the agreement in a Mediation Settlement Agreement and/or, should it be followed by a further release, all anticipated and needed terms of the release, including, but not limited to, such issues as discussed above;

– Parties and their counsel should not wait until the end of a mediation session to raise and discuss all material terms required in both a Mediation Settlement Agreement and the specific terms of any further release required;

– Anticipating that specific terms and language will be needed in a release, parties and/or their counsel may wish to bring a release with them that could be executed at the end of the mediation session and/or at least shown to the other parties when discussing specific terms required in the final release.

A skilled and experienced mediator will likely anticipate the issues that will need to be agreed upon before final settlement can be reached, and will raise these issues during the mediation at an earlier time and in an appropriate manner, such as in private caucuses first, to help you avoid pitfalls at the end of the session that could jeopardize the overall settlement.

MDRS Welcomes Ralph Cecere to the Neutral Panel

3b9cf07We are so pleased to welcome Attorney Ralph N. Cecere to the MDRS Panel of Neutrals. Attorney Cecere is a seasoned practitioner with over 24 years of experience in the trial court and administrative agencies. He has handled over 200 cases taken to trial in the Superior and District Courts. During his years as a practicing attorney, most recently at Ralph N. Cecere, P.C., Ralph has represented insurance companies, small businesses and plaintiffs, acting as lead counsel in jury trials, binding arbitrations, and settlement conferences. Previously, Ralph handled litigation and trial work for a large insurance defense practice in a variety of contract and tort cases with substantial active caseload. Attorney Cecere’s career has encompassed a wide range of insurance coverage matters for auto, homeowners and causality. He also practices criminal defense as a Bar Advocate in Essex County. He has been admitted to the Massachusetts Bar and the New Hampshire Bar, and is a member of the Massachusetts Bar Association. Attorney Cecere brings thorough, hands-on knowledge and experience to his specialties in Insurance, Personal Injury and Workers’ Compensation-related areas. We are very happy to have Attorney Cecere join the MDRS Panel of Neutrals, and we look forward to having him assist MDRS clients achieve resolution of their disputes.