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

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.

Use an Honorable Engagement Provision

Use an Honorable Engagement provision to make the “steep uphill climb” toward arbitral vacatur improbable.

By Anthony C. Adamopoulos, Esq. ©2015

In May, the First Circuit of the United States Court of Appeals issued a decision of interest to arbitration practioners. Of exceptional interest is the court’s recognition that when arbitration agreements contain an Honorable Engagement provision “… the prospects for successful arbitration are measurably enhanced…”.

First State Insurance Co. and New England Reinsurance Corporation v. National Casualty Co., 781 F.3d 7 (1st Cir. 2015) 1 (First State)  described and confirmed, in a clear and plain manner, two concepts of arbitration: (1) the unlikelihood of having arbitration awards vacated and (2) the value of an “ honorable engagement” provision in arbitration agreements.

In First State, the arbitration Panel’s award arose out of a dispute involving eight reinsurance agreements.  The Panel’s interpretation of the agreements was the basis for its award.  The award included the establishment of a payment protocol and a reservation of rights procedure.

The appellant, National Casualty Company, contended that the interpretation that led to the payment protocol exceeded the Panel’s authority and that the reservations of rights procedure “…[did] not draw its essence from the underlying agreements.” Id. P. 10.

The unlikelihood of vacatur.

The Panel first describes the practical likelihood of having an arbitral award vacated:

“A party that implores a court to vacate an arbitration award normally faces a steep uphill climb: the scope of judicial review of arbitration awards is ‘among the narrowest known in the law’.”  Me. Cent. R.R. Co. v. Bhd. of Maint. of Way Emps., 873 F.2d 425, 428 (1st Cir. 1989).” First State Insurance Company, 781 F.3d at 9.

“… A federal court’s authority to defenestrate an arbitration award is extremely limited. … A legal error (even a serious one) in contract interpretation is, in and of itself, not a sufficient reason for a federal court to undo an arbitration award. … Only if the arbitrators acted so far outside the bounds of their authority that they can be said to have dispensed their own brand of industrial justice will a court vacate the award. … Put another way, as long as an arbitration award draw[s] ‘its essence’ from the underlying agreement, it will withstand judicial review — and it does not matter how ‘good, bad, or ugly’ the match between the contract and the terms of the award may be.” (Internal quotation marks and citations omitted.).  First State Insurance Company, 781 F.3d at 11.

Massachusetts case law provides a similar “steep uphill climb”:           “… on review of an arbitrator’s decision, we do not review the arbitrator’s findings of fact or conclusions of law for error… . Judicial review of an arbitration award is narrowly confined… . [A] court is bound by the arbitrator’s findings and rulings ‘even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing’. ” (Internal quotation marks and citations omitted.) American Fed’n of State, County, & Mun. Employees, Council 93, AFL-CIO v. School Dep’t of Burlington, 462 Mass. 1009,1010 (2012) Rescript affirming: American  Fed’n of State, County, & Mun. Employees, Council 93, AFL-CIO v. School Dep’t of Burlington, 78 Mass. App. Ct. 511, (2011).

The First State Panel does not set new law; rather, it boldly reiterates what seasoned arbitral attorneys know about overturning an award, from step one, it is a “steep uphill climb”.

For Massachusetts practitioners, arbitration law generally flows from two sources, U.S. Code, Title 9 – Arbitration, The Federal Arbitration Act  (FAA) and M.G.L. Ch. 251 – The Uniform Arbitration Act for Commercial Disputes, The Massachusetts Arbitration Act (MAA). “In all relevant respects, the language of the FAA and the MAA providing for enforcement of arbitration provisions are similar, and…[our Supreme Judicial Court] has interpreted the cognate provisions in the same manner.” Warfield v. Beth Israel Deaconess Medical Center, Inc., 454 Mass. 390,394 (2009).

The FAA, at Section 10, lists four reasons for vacating an arbitral award. The MAA’s Section 12, lists five.

The value of an Honorable Engagement provision.

What power does an honorable engagement provision give to arbitrators? “…[A]n honorable engagement provision empowers arbitrators to grant forms of relief, such as equitable remedies, not following the strict rules of law.’ ” First State Insurance Company, 781 F.3d at 12.

Until this case the First Circuit had “…not had occasion to address the operation and effect of an honorable engagement provision in an arbitration clause.” First State Insurance Company, 781 F.3d at 12.

The arbitration section in each of the subject reinsurance agreements contained an honorable engagement provision. That provision “… directs the arbitrators to consider each agreement as an honorable engagement rather than merely a legal obligation and [it] goes on to explain that the arbitrators are relieved of all judicial formalities and may abstain from following the strict rules of law.” (Internal quotation marks omitted.)  First State Insurance Company, 781 F.3d at 12.

The Panel spoke plainly on the value of such a provision.  “This is a huge advantage: the prospects for successful arbitration are measurably enhanced if the arbitrators have flexibility to custom-tailor remedies to fit particular circumstances. … An honorable engagement provision ensures that flexibility.” First State Insurance Company, 781 F.3d at 12.

As to the Appellant’s contention that the arbitrators’ payment protocol was not derived from the subject Agreements, the Panel, in effect, said that while Appellant’s contention may be sound in contract law it is not relevant, because, “… the honorable engagement provisions in the arbitration clauses of the underlying agreements authorized the arbitrators to grant equitable remedies”. First State Insurance Company, 781 F.3d at 12.

The take away.

If parties negotiating an arbitration agreement want to measurably reduce the chance of a future award being vacated they should craft into their arbitration agreement an honorable engagement provision and thereby make the “steep uphill climb” toward vacatur remotely improbable to reach.

———————-
1 The Panel that heard this case included Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States.

2 “The FAA was originally enacted in 1925… and then reenacted and codified in 1947 as Title 9… Its purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220, and n. 6 (1985); Scherk v. Alberto-Culver Co., 417 U. S.506, 510, n. 4 (1974).”  Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)

In Support of … Arbitration

By Brian R. Jerome, Esq. and Jeffrey S. Stern, Esq.

A recent three-part series in the New York Times, (Arbitration Everywhere, Stacking the Deck of Justice October 31, 2015), which spotlighted certain abuses and injustices in particular types of arbitration, has gained wide attention in the ADR community, the broader legal community and with the public. While the series was unquestionably effective in pointing out problems where they exist, it also painted with such a broad brush as to tarnish (perhaps inadvertently) the arbitration system as a whole, and the many respected and ethical professionals who operate within it, and who provide just and effective resolutions to conflicts of many forms.

The primary emphasis of the series in the Times was the growing use of arbitration clauses being placed into commercial and consumer contracts among parties with unequal bargaining power, such as low-wage employees against their employers, credit card or bank customers against large financial organizations, and the like. Such arbitration clauses are being inserted in an ever-widening range of contracts, often buried in fine print and unbeknownst to the consumer or not understood by them, and in circumstances that bear no resemblance to freely negotiated agreements. The articles were particularly critical of corporations including arbitration clauses that have been interpreted to waive class actions by consumers, a practice which has been upheld by recent, highly controversial, Supreme Court decisions. While reasonable people’s opinions can differ about the merits of class actions, with some critics believing that they benefit attorneys more than the class members, the Times articles demonstrate that without the leverage of class actions, it is simply impractical to pursue many claims, by arbitration or otherwise, against large corporations.

The second installment of the series was particularly troubling to the ADR community. It highlighted a small number of cases, the outcomes of which seemed particularly unjust, and strongly suggested that the process of arbitration, and arbitrators as a whole, were somehow biased and that the system itself was anti-consumers or plaintiffs. Obviously, unjust outcomes are not unique to the arbitration process, as evidenced by the unpredictability of jury decisions. However, a few anecdotes of inequitable arbitration awards should not characterize the work of so many dedicated arbitrators who objectively follow the evidence and make unbiased and reasoned decisions.

The Times articles makes a case for reform, either by court decisions or legislative response, as to the use of mandatory arbitration clauses in contracts that are neither prominently displayed nor understood by the parties, and particularly in circumstances where parties have significantly unequal bargaining power.

It is the professional obligation of the ADR community, which we believe is undoubtedly shared by the populous of dedicated professionals providing arbitration services, to emphasize that the arbitration process has a long and honorable history, and should justifiably remain a viable and often preferred option to litigation and trial for many disputes. Unlike the situations described in the Times, arbitration is more frequently and freely decided upon by parties and their attorneys in ongoing cases, without any mandatory arbitration clause. It is selected as the preferred dispute resolution process because one or more of its inherent features is appropriate for the case, such as:

– the time, expense, and costs saved by choosing arbitration over extensive litigation, discovery, and trial in the court system;

– the ability to mutually select the arbitrator or panel of arbitrators to hear the case, customarily neutrals with legal expertise in the area of the law involved and with track records of integrity and fairness;

– the convenience and efficiency of selecting the time and place of the hearing;

– the privacy of a conference room over a court room, and the finality of an arbitration award, as may be deemed mutually beneficial to the parties.

The Times article focuses on abuses pertaining to a narrow segment of the arbitration field, the regrettable hallmark of which is the use of arbitration clauses in contracts involving parties with unequal bargaining power and where the agreement is neither fully understood nor freely bargained for. As such, its focus is not — and should not —be seen as representative of arbitration or arbitrators as a whole. As attorneys and ADR providers we are bound by strict ethical rules and believe that authentic neutrality is at the very center of our mission and professional life. Indeed, those are the reasons why ADR has become so progressively utilized and appropriate as a fair and effective resolution process, and that it is trials in the courtroom which are now viewed by many as “the alternative.”

Brian Jerome is the Founder of Massachusetts Dispute Resolution Services (MDRS) and Chair of the MBA’s ADR Committee. Jeffrey Stern is a neutral at The Mediation Group and a member of the MBA’s ADR Committee.

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 David A. Mills to the Neutral Panel

Judge David MillsIt is our great pleasure to announce the appointment of Judge David A. Mills to the MDRS Panel of Neutrals. Judge Mills’ remarkable background includes his service at the Massachusetts Appeals Court from 2001 to 2012. He has since then provided case evaluations in appellate matters, trial litigation matters, Single Justice practice, and pre-trial consultatons with a goal toward exploring alternative methods of dispute resolution. He is trained and experienced in ADR in its varied modes, receiving training with Professor Roger Fisher at the Harvard Negotiation Project in 1989. Judge Mills has also participated in extensive mediation training with MWI and MCLE in Boston, and has acted as a mediator in the Salem, Haverhill, Gloucester, East Boston and South Boston divisions of the Massachusetts Trial Court. He volunteers with SERV (State Employees Responding as Volunteers), primarily in the Middlesex and Suffolk Probate and Family Courts. Judge Mills is a member of the Trial Court Committee on ADR and was recently appointed to the Massachusetts Bar Association’s ADR Committee; he also serves as a Commissioner on the Massachusetts State Ethics Commission. Prior to his appointment to the Massachusetts Appeals Court, Judge Mills was a lawyer with a practice based in Boston and Danvers, maintaining private offices for thirty-two years. As a lawyer, his court appearances were diverse in many courts. His practice concentrated on zoning and land use and, for a time, criminal defense and “people in trouble.” He has been involved in a wide range of cases and represented many angles in disputes, from land disputes between opposing neighbors and “small-town fights”, to sellers, buyers, owners and developers in real estate matters. As a veteran of 47 years in the courts, Judge Mills is an advocate for mediation as an integral first response to disputes before time consuming, expensive litigation. Judge Mills has said that “in mediation, the parties seek a resolution that gives each something of value, often a resolution that saves time, money, and minimizes damage to relationships.” His work has given him substantive grounds as an advocate for ADR who will continue to enrich the practice with his many years of experience. We are very excited to have his services available to MDRS clients.

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.