Saving $$$$ Divorcing — Financial Statements

By Guest Blogger, Anthony C. Adamopoulos

In my over 25 years of helping people facing divorce, I have seen, in almost every divorce, a reoccurring client decision that results in wasting hundreds, and sometimes, thousands of dollars.

What is that decision? The decision not to read and follow the court’s instructions on how to complete the court’s Financial Statement.

In all divorce cases, the most important document is the Probate and Family Court Financial Statement.

In an “uncontested” divorce, the judge reads the Financial Statement to help her or him decide if she or he will approve the parties’ Separation Agreement. I have seen judges, or their clerks, refuse to let uncontested divorce cases be approved because Financial Statements did not conform to the court’s instructions.

In contested cases, the Financial Statement helps the judge determine many issues, for example, the standard of living of a party, the needs of a party, and the honesty of a party.

In my office, and the offices of many attorneys I know, we do not complete client Financial Statements. No client of mine can ever say, “I do not know where that number came from, my attorney completed the Financial Statement.” Clients must complete their own Financial Statements.

The Probate and Family Court Instructions for Financial Statements can be found by going to my web site DivorcingOptions.com, then to RESOURCES, then to Long Form Instructions or Short Form Instructions.

There are about 13 to 15 paragraphs of instruction.

The instructions for both forms are accompanied by a self-calculating form for the user’s convenience.

Here is a list of the most ignored instructions:

  1. Fill in your name and address;
  2. Answer every question;
  3. If an answer to a question is 0 or none, enter 0 or none;
  4. All income and expenses are to be reported in weekly amounts with monthly figures being divided by 4.3;
  5. List all assets and present value.

5.Since the Family Court wants its instructions followed, my paralegal or I must point out what needs to be changed, in a client’s draft Statement, to comply with the court’s instructions.

Because clients are paying for time, the amount of errors and the amount of resistance (Yes, some clients resist the court’s instructions under the misbelief that the court will make an exception in their case.) can result in legal fees that are avoidable.

The take away:

The court’s instructions are few and clear. Taking the time to follow them can save you $$$$.

Please click the link to navigate to Anthony C. Adamopoulos’s website.

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.

MDRS Settlement Days

What’s better than settling a claim? Settling 4-8 of them – all in a SINGLE DAY. MDRS is a leading provider of Settlement Days: mediation-focused marathons conducted at the insurer’s office where 4-8 cases are lined up for time-concentrated sessions with settlement as the primary goal. Secondary in nature, but perhaps equally as critical, are the avoidance of claims’ personnel travel time and expenses, a beneficial mediation fee schedule, and high settlement rates. MDRS can work with your firm to put together a framework that fits your needs, as well as a cost-benefit analysis. Call (800) 536-5520 for further information.

Dispute Resolution Diffuses Explosive Situations

by Sheri Stevens Wilson

The Islamic Society of Greater Worcester is seeking town approval to develop a Muslim cemetery on 55 acres it plans to purchase in Dudley, Massachusetts. The group seeks a local option where their burial customs could be followed, which sometimes include ‘green’ burial options, direct contact with the dead, very specific positioning of the body according to their religious tradition and beliefs, and dignified behavior at the burial. At a recent public hearing, many residents voiced pointed opposition to the plan. Among the concerns were those of the possible effect on the local water table, traffic, noise, and vandalism. There were additional remarks made, however, which clearly showed emotional reactions and which transcended more straightforward issues.

Most present at the recent Zoning Board of Appeals public hearing might say there’s no hope of ever reaching resolution of this situation.

We hear this all the time.

We are mediators.

What are mediators? Mediators are skilled negotiators who assist those on opposing sides of an issue work toward agreement. Mediation has been a system of resolution for thousands of years and is practiced across the world in different cultures. As objective and unbiased neutrals, Mediators bring reasoning to situations where emotions and complex issues have often taken over productive discussion. Mediators have many different tools they employ, based on the conflicts and the parties involved. In general, they work to determine the genuine, underlying issues. They identify and dismantle false beliefs. They provide support for the parties to form new opinions based on facts. And they guide negotiations to determine the ways in which everyone’s needs can be met. Peacefully.

The beauty of mediation is that the parties retain all of the power, and are never made to accept methods of resolution that that decision-makers are not in agreement with. And the rate of settlement in approaching even the most complex problems in this manner is very, very high.

Attorney Brian R. Jerome, Founder and CEO of Massachusetts Dispute Resolution Services [MDRS] shares, “The controversy in Dudley involves competing interests of many factions and an interpretation of the law which creates uncertainty for all involved. That it is all in the context of an Islamic religious group raises the potential for passions and emotions to be inflamed, in part as a result of fear. In situations such as this, mediation provides a process where all of the competing groups can be heard, and their true needs and interests can be accommodated and satisfied by a carefully sculpted resolution. The parties would benefit from a better understanding of each other, and an attempt to collaborate rather than confront one another. Proceeding to a final arbitrary zoning decision may well be all or nothing, with a winner and a loser, rather than the give and take of mediation and what could be a win-win result. We encourage the parties to consider mediating their dispute, rather than continuing confrontation with the potential for further negative escalation.”

At MDRS, we’ve been helping people resolve disputes for 25 years. As leaders in the law, we find nothing as rewarding as helping our clients attain better end-results than they ever thought possible. If you are involved in a conflict and would like to speak with us further, please call (800) 536-5520 or visit us at www.mdrs.com.

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.

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.