Mediation ruled first step in cyber coverage case

A debate about cyber-coverage has played out in favor of policy-holders in a ruling that requires an Insurer to utilize Alternative Dispute Resolution (ADR) to resolve their dispute. As with any emerging trend, early Court rulings will encourage the introduction of legislature to define how such cases will commonly be handled in the future. It will be interesting to see how the role of ADR develops in this new frontier where it may prove to be most valuable. Read more….

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 http://www.mdrs.com/faqs/mdrs-articles.

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

Mediation: Achieving Success

How can participants maximize their chances for a successful outcome in mediation? While there are many worthwhile opinions and no shortage of advice, the simple virtue of civility can advance your negotiations in a powerful way.
Overlooked in so many cases is the personal factor. There are reports, claims, medical bills, evidence to be collected. There are usually emotions that further complicate each situation, and always in unique ways. Quite often there is never a direct or seemingly appropriate opportunity for one side to say to the other: “I’m sorry this happened,” an offer of sympathy, or even a kind word. Easy to forget in our world of work and facts and responsibilities is that bringing personal touches such as kindness, friendliness, and receptiveness to traditionally business-focused circumstances can have astounding impact. This is a hidden treasure of a key to help unlock your successful mediation.

While most attorneys and other professionals who participate in mediations display similar traits of civility and courtesy during the mediation process, too often, perhaps in the pursuit of zealous advocacy for the client or their case, an attorney, representative or party, usually in the initial opening joint session, makes comments that cross a line and offend, demean, or alienate their opponent. One should consider that these initial comments at the joint session often set a tone for the hours that follow. Such offending comments become counterproductive to the process and the mediator’s work. Because of these comments, excessive and valuable time becomes required thereafter for the mediator to stabilize the person(s) offended by these comments, often in private caucuses, and make them receptive to compromise and the willingness to show the flexibility needed for a successful outcome. Our experience is that less Rambo and more Dale Carnegie, will significantly improve your odds for a successful mediated resolution.

Don’t confuse civility with weakness. Attorneys, representatives and parties must be able to clearly state their positions as to all relevant issues that arise during a mediation. How and when they do so at a mediation, however, is the issue. We see more and more that experienced trial attorneys, with track records of success as fervent client advocates at trial, are choosing to leave their hatchets at home and making ever briefer and less contentious opening comments at the initial joint mediation session, knowing that the mediation process differs greatly from trial.

Most mediators recognize that for many parties a mediation can be viewed as their “day in court” and they may be used to, or expect, that their counsel in opening comments will passionately attempt to vanquish their opponent. However, experienced counsel will advise their clients of what mediation is and isn’t, and that their opening comments may not be what the client would hear at a trial. Many comments or arguments that could offend the opponent if made at the outset in the open joint session can be shared with the mediator later in private caucuses. Often a mediator may have a better sense of how and when such arguments could then be made most effectively and productively to the opponent.

As Mary Wortley Montagu said well: “Civility costs nothing and buys everything.”

Our expert mediators can help you and your clients resolve even the most contentious of conflicts. Visit us at www.mdrs.com or call us at (800) 536-5520 to learn more about how we can help you achieve the results you need.

Divorce Decree Can’t Compel Mediation

In a recent ruling on Ventrice v. Ventrice, a husband and wife could not be compelled to engage in mediation at their own expense as a condition of their being permitted to file actions in the future to enforce or modify the terms of their divorce. The husband argued that his right to free access to the courts was violated by a clause in his divorce decree requiring the parties to engage in, and pay for, court-directed mediation before either could file any subsequent action in court. Ultimately, the Court agreed. And so do we. In fact, one of our Divorce Mediation experts, C. Michele Dorsey, Esq. writes, “For mediation to be truly effective, it must be voluntary. There have been noble efforts by courts and other administrative agencies to work around this by establishing rules that attempt to address the concerns that arise when court-connected mediation is mandated.” Current Massachusetts law (M.G.L. c.233, aec.23c) provides limited direction and protection for people who choose to participate in private mediation. Ventrice v. Ventrice refers to the direction given by the court in Bower v. Bournay-Bower, a decision that addressed issues regarding the authority of parenting coordinators, but also mentioned mediators and other ADR professionals. It’s high time to enact a comprehensive statute that provides protection to people who choose to engage in private mediation as well as guidance for private mediators.

Mediation is a valuable service which should be available without having to compromise constitutional rights.” Another of our Divorce Mediation experts, Patricia D. Watson, Esq. further notes, “The reference in the decision to Gustin v. Gustin, which held that a judge cannot order the parties to binding arbitration unless they agree to do so, suggests that this decision limits what a judge can order, but does not limit the ability of the parties to agree otherwise.” This indicates that the decision in Ventrice v. Ventrice may be more narrow than it first appears. What does all this mean to those seeking Alternative Dispute Resolution? Mediation and arbitration still remain available to divorce litigants who both agree to employ a process that will provide a faster, less expensive, and less stressful resolution of their conflict then going to court.

Our experts in divorce mediation can help you and your clients resolve even the most contentious of conflicts. Visit us at www.mdrs.com or call us at (800) 536-5520 to learn more about how we can help you achieve the results you need.

Resolution of Complex Issues Go Beyond Insurance

When people think ADR [Alternative Dispute Resolution], imaginations are sometimes limited to situations having an ultimate financial settlement. While this is in many cases true, MDRS has assisted clients in resolving conflicts well beyond dollar signs.

Consider, for example, the family-owned business run for decades by Mom and Dad, now turned Grandma and Grandpa, who are thinking about retiring. Mixed families, involved together for years, are suddenly at odds as their jobs, positions, and futures feel less steady. Who will be chosen to be the next business – and perhaps family – leader? Is there favoritism involved? And what about relationships that are already contentious…are they likely to become even more problematic without Grandma/Mom and Grandpa/Dad keeping the peace and ensuring everyone stays focused on the business? Is it all fair?

There is the question of who works how many hours doing what job to consider, and of course how much they get paid for doing so. Perhaps family salaries were never subject to discussion before, and there are now unhappy surprises. There are benefits, perks, and power struggles on the line. There is, at the very core of the matter, a viable business that must be preserved and run professionally, regardless of these personal and personnel struggles.

MDRS can help resolve a wide range of conflicts, whether comprised of an ultimate financial determination or a complicated host of other factors. Our skilled mediators and arbitrators bring incredible experience to the table and help our clients achieve the results they need: closure and resolution of the issues.

Join thousands of believers when you become one of our clients. Call MDRS at (800) 536-5520 or visit us at www.mdrs.com to learn about how we can help you do more.

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.

What Happens in the (Mediation) Room Stays…

MDRS’ Brian Jerome was recently quoted in the Boston Herald in regards to the now-resolved Market Basket situation.  During a phone interview with the Herald, Brian expressed the importance of confidentiality while in the mediation room.  While his quote was referenced out of context in the published article, the interview brought up an important component of mediation, which is critical to highlight, and is always in the ADR spotlight – confidentiality.

Confidentiality in mediation is essential to the successful resolution of a case. It serves to preserve the sense that a mediation room is a sanctuary for those hoping to resolve a legal matter without trial.  This is especially important to emphasize given that if the case is not settled in mediation and finds its way in front of a judge that the information brought up in the mediation room will not impact the case.  It is the goal of the mediator to promote a comfortable environment where all parties feel safe to discuss a number of scenarios in order to reach a settlement.  Without the promise of confidentiality, some may not feel as secure in this process.  It’s also important to know that confidentiality doesn’t just start in the mediation session…it actually begins when the parties initially agree to mediation and submit their case.  This confidentiality is guaranteed until the mediation ends – and even then, if parties do not reach a settlement in mediation, the happenings of the mediation cannot be disclosed at any judicial proceeding or trial.

All parties involved in mediation have to trust in this confidentiality, and the mediator plays a significant role in maintaining this security.  A mediator’s role is to facilitate a settlement between multiple parties, and this can only be done if they are comfortable and willing to be open with their conversations and end-result considerations, which is a feat accomplished primarily through confidentiality and trust.  The mediator will also have private one on one caucuses with each party, and their counsel if represented, and these private caucuses are themselves confidential, which allows the parties to discuss their fundamental needs and interest in confidence with the mediator, based upon which a skillful mediator will work to sculpt a beneficial settlement to all parties.

Mediation is a timely, cost-effective alternative to trial and offers an opportunity to reach a settlement that is more agreeable to all parties.  If you agree to mediation, you should know that the information you share will be protected, and confidentiality will be upheld throughout the process.

 

 

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.

Alternatives to Foreclosure

If you are behind in payments on your mortgage, you may be concerned about the very real possibility of foreclosure. If you are in default on your loan and are considering options that you can take to avoid foreclosure, here are some alternatives to consider.

Reinstating Your Mortgage

You can reinstate your mortgage by making up the missed payments along with any fees and interest the lender requires. Sometimes fees can even be negotiated to a lesser amount. Once you receive notice from your lender that foreclosure is imminent, you will have a certain amount of time to pursue this option. While this option is ideal, it can be difficult to accomplish since financial difficulty is often what leads to impending foreclosure in the first place.

Refinancing or Loan Modification

These options can be ideal, since they allow you to secure a better rate, and/or pay off your loan and start over. But issues such as current income and the ability to sustain your loan, the amount of equity in your house, neighborhood values and more can affect these possibilities. If your mortgage is owned by Fannie Mae or Freddie Mac, you may qualify for refinancing under the Home Affordable Refinance Program.

Taking out a Reverse Mortgage

With a reverse mortgage you can access the equity of your home without selling. With a reverse mortgage you receive money from a lender which you typically do not need to pay back while you still live in the house. If you sell the house, the loan must then be repaid. You are a candidate for a reverse mortgage if you are over 62 years old and have considerable equity. The downside of a reverse mortgage is that they take part or all of your equity, leaving you with a significantly smaller estate to pass to your beneficiaries. Also, while you do not have to make mortgage payments, you may still be liable for property taxes and other fees, so making certain you can afford these costs is key.

Taking the Fight to Court

If you believe that your lender didn’t follow state or federal law when approaching the foreclosure process or you feel they violated the terms of your loan agreement, you may decide to fight the foreclosure in court. Foreclosing parties are often required to show documentation that they own the mortgage loan and have a right to foreclose.

Giving up your House

When foreclosure is looming, you may decide that it is the right choice for you to give up the house. If you decide that this is the best route for you, there are a couple ways to approach this decision.

One way is to arrange a “short sale” and sell the home as a means to avoid foreclosure. With a short sale, you are selling the house for less than the outstanding debt. If you have more than one mortgage on your house, this option may not be a possibility, since all lending parties have to agree to the terms of a short sale, and your second and third mortgage lenders will not profit from this scenario. If you are able to arrange a short sale, it will have an added long-term benefit by not negatively impacting your credit score as much as foreclosure or bankruptcy.

Another way to give up your house as a means to avoid foreclosure is to sign a “deed in lieu of foreclosure,” which simply means handing over the house to your lender by deeding the property to them so that foreclosure becomes unnecessary. If you decide to pursue this route, make sure you come to an agreement with your lender so that they won’t pursue any further deficiency. It is always important to get agreements of this kind in writing. Some homeowners are able to negotiate a “cash for keys” agreement where the lender provides the homeowner with a small amount of money in order to assist the homeowner in relocation.

Ultimately, while foreclosure is an unfortunate scenario, there are ways to avoid it, especially if you act sooner rather than later. If you are considering your options and are unsure which route to take, foreclosure mediation allows for open communication between homeowners and lenders on neutral ground so that a mutually agreed upon alternative can be reached.

MDRS Launches Foreclosure Mediation Program

MDRS is excited to bring our valuable knowledge and experience of out-of-court dispute resolution to the City of Lynn Foreclosure Mediation Program. This groundbreaking program has been created to give Lynn homeowners and their lenders an opportunity to find mutually beneficial alternatives to foreclosure. The goals of the program are to prevent foreclosure, keep Lynn families in their homes, and prevent vacant and abandoned houses from negatively impacting property values and destabilizing Lynn neighborhoods.

The City of Lynn is working exclusively with MDRS to use mediation as a means of exploring alternatives to foreclosure. These alternatives include retention options such as loan modification, repayment plan, reinstatement, or forbearance agreement, and non-retention options such as a short sale, deed-in-lieu-of-foreclosure, or consent foreclosure.

In foreclosure mediation, experienced and impartial MDRS neutrals, who have been specially trained in foreclosure mediation, work to facilitate communication and negotiations between the homeowner and lender. The solutions may vary for each situation, but the end goal is the same – to avoid foreclosure and find an outcome that works for both the homeowner and the lender.

The City of Lynn Foreclosure Mediation Program is limited to residential, owner-occupied properties that are currently the homeowner’s primary residence. Foreclosures of non-residential, investment, or commercial property are not eligible for this program. MDRS will be notified by the City of Lynn when a lender files a Notice to Cure with Lynn City Solicitors, per their city Ordinance.  MDRS and Lynn United for Change, the mediation program’s loan counseling and advocacy group, will immediately notify the homeowner and lender about participating in the program.

Eligible homeowners in Lynn will receive an easily recognizable gold envelope from MDRS in conjunction with the foreclosure mediation program. These envelopes bear the MDRS and City of Lynn logos and are easily distinguishable from other materials that may be received outside of the program.  Homeowners should be vigilant of foreclosure rescue scams promising relief from foreclosure for fees.

If you would like more information, please call Sheri Stevens at (800) 536-5520 or e-mail Sheri at sstevens [at] mdrs.com.