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.

Join us at the BBA Brown Bag Seminar on ADR

We invite you to join us on Wednesday, November 14, 2013 for a Boston Bar Association-sponsored seminar on ADR in Premises Liability Cases.  You may know that MDRS has handled into the thousands of these types of cases.  During this lunch-hour seminar at the BBA [16 Beacon Street, Boston], you will learn about what makes premises liability cases well-suited to mediation, when you should bring this kind of case to mediation, how to reach the best mediation outcome for your client, strategies to increase session productivity, complicating factors, preparation hints and more.  Please contact William McClare Dunham, the co-chair of the BBA’s Alternative Dispute Resolution Committee at wmdunham@sherin.com.

Using ADR to Resolve Slip and Fall Accidents

Premise liability occurs when injury is suffered on property belonging to another person or business.  Whether it is the conditions of the land, or activities performed, issues often arise in determining fault. When personal injury occurs it is often the first response to assign causality for the accident, but it can be difficult to prove whether the fault is on the injured party or the owner of the property where the injury occurred – often times there is no clear answer.  Using Alternative Dispute Resolution to reach an agreeable settlement in these types of cases is often the best choice for both parties.

Slip and fall accidents, in particular, are common occurrences.  According to the National Safety Council, slip and fall accidents account for 1 million visits to the ER per year. While the repercussions of slip and fall accidents can vary from minor scrapes and bruises to serious injuries, the accidents often leave the victim in physical and/or emotional pain.  If you are the victim of a slip and fall, or if you are the owner or resident of the location where the accident occurred, consider this:  litigation is often not the best way to handle the incident. When brought to trial, slip and fall cases are highly uncertain and can result in a long, drawn-out process with an extremely unpredictable outcome. Often times, fault is shared and an accident is just that – an unfortunate accident.  With litigation, both parties are subjected to a long, grueling and costly trial that can be avoided by instead utilizing ADR.

As the victim, you are experiencing pain and suffering, and yet during a trial you must prove that the property owner’s negligence caused the accident — not a simple or comfortable task, especially if you wish to preserve the relationship.  As the property owner, you likely feel badly that someone was injured, and are just as anxious to resolve the issue.  With Alternative Dispute Resolution, your case can be heard, and it can be resolved quickly and fairly, with an outcome agreeable to all parties.   MDRS has skilled and knowledgeable neutrals, with a wide breadth of experience in premise liability and slip and fall cases. Contact us at (800) 536-5520.  We’ll help you come to a settlement quickly, easily, and inexpensively.

Deaths from Workplace Injuries Honored in Boston

This past April, the Massachusetts State House honored those who died from workplace injuries in 2012. Nearly 100 advocates came together on April 26 in honor of Workers Memorial Day to pay their respects to 32 people who recently lost their lives to workplace injuries.  The numbers have fortunately been on the decline, down from 58 deaths in 2011.

Workplace injuries and occupational diseases often go unreported and are typically tragic accidents. Of those honored on April 26th, were Freddie Clay, a 42-year-old truck driver who died last year working on a brake problem, and Michael Ledoux, also 42, a mechanic who was run over by a coworker.  Investigations into Ledoux’s death were still ongoing almost a year after the tragedy occurred, but has been ruled an accident.  The memorial included prayer, speeches and a moment of silence.

Massachusetts Dispute Resolution Services has considerable experience mediating and arbitrating workplace injuries.  If you are involved with a case of this type, consider contacting MDRS at (800) 536-5520 to find out how you can use Alternative Dispute Resolution to help you resolve your matter.

ADR and Automobile Claims

Founded in 1991, MDRS has perhaps mediated and arbitrated more automobile claims of all types than any other ADR provider in Massachusetts.  Automobile related claims are particularly suited to the processes of alternative dispute resolution, which are designed to meet the parties’ interests in resolving these cases equitably, economically and skillfully, and avoiding the time, expense and uncertainty of trial in the Court system.  Over the past years, the inability of the Court system to appropriately adjudicate the array of automobile claims has become even more pronounced to legal consumers.

MDRS has attempted to maintain our reasonable fee structure for automobile related claims and the present fees for a standard mediation session or arbitration hearing are but $495.00 per party, much less than parties would expend in bringing their case through litigation to a distant trial in the traditional Court system. MDRS also offers what we see as the best available panel of experienced neutrals with extensive substantive experience in mediating and arbitrating automobile claims. Read more.

MED-ARB: Sculpting the ADR Process To The Case

Both mediation and arbitration are now familiar and popular ADR processes used to resolve an ever broadening array of disputes. Over the past years, these two processes have literally transformed the legal landscape such that parties and their counsel are viewing ADR as a more appropriate manner of resolving disputes than is offered by Courts.

Less familiar, and to some observers more controversial, is the hybrid ADR process called MED-ARB, where the parties agree in advance to present their case to a mediator and, should that process not result in a final settlement, the case will be submitted to binding arbitration. In its “pure” state, the same neutral is selected to serve as both mediator and arbitrator.  As an alternative, a separate neutral can be selected to serve as arbitrator should the matter not fully resolve at mediation.  Read more here.

Recent Cases in ADR – April 2013

Keep updated on the most recent cases and latest developments in Alternative Dispute Resolution.  What’s new this April?  Find out here.

Arbitration – Arbitration Clause in Employee Handbook Not Enforceable.  The plaintiff brought suit alleging that her employer, its owner and her former supervisor interfered with her request for maternity leave under the Family and Medical Leave Act and retaliated against her by passing her over for promotion and demoting her to a part-time position. The defendants moved to compel arbitration pursuant to a provision in an employee handbook signed by the plaintiff. The Court denied the defendant’s motion on grounds that the arbitration agreement in the handbook is unenforceable.  Read more.

Arbitration – Dispute over Condominium Stairs Requires Arbitration Under Trust Document.  In a case where the owners of the units in a two-unit condominium have been engaged in a dispute over the stairs leading to the front doors of the units, the Court ruled that the defendant’s motion to compel arbitration should be allowed based on the terms of the condominium trust and the commonwealth’s public policy favoring arbitration of disputes.  Read more.

Arbitration – Counsel Fees Allowed in FINRA Case.  In a case where the parties agreed to abide by any arbitration award rendered, the Court ruled that the arbitrators were acting within the Financial Industry Regulatory Authority (FINRA) guidelines by awarding counsel fees. Read more.

Arbitration – Award in Employment Dispute Upheld.  In 2010, the plaintiff employer was awarded damages due to the defendant employee’s breach of a non-competition clause. In 2012, the defendant was awarded damages pursuant to an unlawful retaliation lawsuit. The defendant then sought to vacate the 2010 arbitration award given the findings in the 2012 lawsuit, the defendant is unable to show that the 2010 award should be vacated under either 9 U.S.C. §10(a) or F.R.C.P. 60(b)(2). Read more.

Arbitration – Arbitration Clause Found Not Enforceable in Home Improvement Case.  An Essex County Superior Court judge awarded summary judgment to the plaintiff homeowners in a dispute with the defendant home improvement contractor.  The Court affirmed this judgment despite the defendant’s assertion that the dispute should be arbitrated in Worcester County. Read more.

Arbitration – Police Officer Reinstatement Does not Contravene Public Policy.  Where a Superior Court judge confirmed an arbitrator’s decision to order the reinstatement of a police officer who had been terminated, the arbitration award did not contravene public policy, so the Superior Court judgment must be upheld. Read more.

Conciliation training guidelines modified 4:29 pm Thu, March 7, 2013.  Trial Court Chief Justice Robert A. Mulligan has approved a change in the qualification training requirements for court-connected conciliators, as recommended by the Standing Committee on Dispute Resolution. Read more.

 

ADR for Prescription Drug Errors

 

According to the Institute of Medicine, medication errors affect more than 1.5 million Americans each year in hospitals alone. Similarly, in a study published by the Journal of American Pharmacists Association in 2003, it was found that American pharmacies make over 30 million drug administration errors a year.

Errors can occur for a multitude of reasons, from prescription drug names that look and sound similar, to incorrect dosage, to drug interactions with previously prescribed medications. It is sometimes an unavoidable accident, but very often it is simple human error.

One of the largest factors in prescription drug error is the multitude of steps that must be followed by hospitals administering drugs in an inpatient capacity. A prescription travels from the doctor to a nurse, who relays the request to the pharmacist, who reviews it and sends the medication back through to the nurse, who finally administers the medication to the patient. Likewise, with outpatient care, hard to decipher handwriting on prescription pads may lead to an incorrect translation by a pharmacist, or when the prescription is called in by phone, a simple miscommunication can have serious consequences. A scary fact is that problems can occur at any point in this chain, which do not account for other problems, such as allergies unbeknownst to either party.

If you or a loved one has been the victim of a prescription drug error, there are many options at your disposal. While court trials are long, costly and emotionally difficult for everyone involved, mediation provides an alternative solution for your situation.

At MDRS, our experienced neutrals can assist both parties involved in reaching an agreement in a private and comfortable atmosphere, without all of the added pressure of a drawn out court case. Alternative Dispute Resolution is flexible and tailored to the needs of both parties involved.

 

Looking for Signs of Nursing Home Abuse

 

Taking care of aging parents is a difficult job.  Turning to adult day care and nursing homes for assistance are sometimes unavoidable arrangements.  This decision is often times inescapable – whether it is because of hectic work schedules, caring for young children, or medical handicaps that make home care impossible.  At MDRS, we understand how hard the decision to give up day to day control over your loved ones can be.  Therefore, it is fundamentally important that you feel comfortable with the caregivers who take on the daily responsibilities of caring for your elderly loved ones.

Unfortunately elder abuse and nursing home mistreatment does exist and at MDRS we are often called upon by disputing parties to help mediate and arbitrate these types of cases.  If you believe your loved one may be a victim of nursing home abuse then here are some key factors to look for.

An article on USNews.com recently offered “9 Warning Signs of Bad Care.”  Contributor, Kurtis Hiatt, consults Dan Sewall, the director of the senior behavioral health unit at the UC San Diego Medical Center, to sum up some of the major, often overlooked, signs of nursing home negligence.  First and foremost, keep an eye out for “emotional or physical changes.”  Hiatt warns that behavioral discordances as simple as becoming withdrawn from activities once previously enjoyed may be a clue to mistreatment.  More physical ailments, such as unexplained bruises or weight loss are also huge red flags.  While these symptoms are not enough to be certain, they undoubtedly should prompt further exploration into the care of your loved ones.

Be weary of a consistently unresponsive staff.  If you are not having your questions sufficiently answered or feel as though responses are vague and inconsistent, there may be cause for concern.  Hiatt cites Jatin Dave, a physician at Brigham and Women’s Hospital’s Center for Older Adult Health in Boston, who claims that “I get more concerned when someone says, ‘This is how we do things here,’ and has no desire to help.”

If the vibe of the residence is constantly frenzied and the directors are missing in action then there may be a cause for concern.  Likewise, frequent staff turnovers, unanswered telephones, and more explicitly, a loved one’s direct wish to avoid interaction with particular personnel are warning signs that should not be ignored.

Ultimately, Hiatt acknowledges that you should go with your gut.  If you believe there is reason to be concerned do not hesitate to explore the possibility.

If negligence or abuse has occurred, MDRS may be able to help you mediate your issue or case with a nursing home.  Our out-of-court Alternative Dispute Resolution and mediation services can facilitate the process so that you can avoid a lengthy, expensive and emotionally taxing court trial.  MDRS has a panel of experienced neutrals, who can help you achieve fair and impartial results.

Focus on Elderly and Nursing Home Abuse Cases

One of the most common types of cases or disputes that we help to resolve are cases involving elderly nursing home abuse or neglect. One of the challenges involved in these cases is that often times if there is an abuse or mistreatment, the injured parties often suffer from a loss of trust.  It is difficult to then move beyond the mistrust into an environment of healing and settlement, which is why these cases lead to litigation.

At MDRS, we understand the difficulties in these cases and how to resolve them fairly and cost-effectively.  Along with our panel members, MDRS takes a careful and impartial approach and examines the facts of the case, helping you achieve better alternatives to resolving the cases at trial.

In a series of upcoming posts we will look at some of the common issues of neglect and abuse that occur in nursing homes, how they can be avoided, and provide some resources to help families struggling with these challenges, as well as discuss our approach to resolving these types of cases utilizing alternative dispute resolution methods with MDRS.