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Interview with an ADR Expert

Featuring Richard T. Corbett, Esq.

1. Is there anything personal about you, your schooling, family, or other subject that you would like to share in this interview?

In three years there may be another Corbett by the bar. My son Jeffrey is a first year law student at Boston College Law School!

2. When and why did you become interested or involved in ADR, mediation or arbitration?

I have been involved, as an advocate, in the ADR process since the late 1980’s. I find it to be a useful alternative to trial in many cases.

3. What types of cases have you been involved in as a mediator or arbitrator, and can you share any special stories with us about one?

I have been involved as a mediator and arbitrator in virtually all types of personal injury matters, some property damage matters and some employment matters. Given the confidential nature of mediation, it wouldn’t be proper to discuss specifics. I will say that I arbitrated a medical malpractice case awhile back and the plaintiff’s lawyer called me to say that I must be using the same present value calculator as he, so I don’t think that the medical malpractice insurer will be using me soon!

4. Why do you feel that ADR is appropriate in the specific type of cases that you handle?

Civil litigation is so uncertain and so expensive that it makes sense to pursue ADR in the majority of cases.

5. What do you feel are the main benefits of mediating a case instead of going to trial?

As I tell the parties at mediation, the party makes the decisions at a mediation. At a trial, the party turns the decision making over to a group of strangers.

6. You have represented both plaintiffs and defendants in your law practice. How does that help you in your role as a mediator?

Knowing the issues and pressures from both sides of the versus is invaluable in understanding what matters and how to get the message across.

7. Why do you feel that a mediation session can helps parties resolve even bitterly contested cases?

Sometimes the mediation can give a party the chance to vent their feelings. Sometimes hearing how the other side views the matter gives a party pause. Sometimes parties just have to hear from a third, neutral party that things may not go the way they think that it will.

8. What do you think parties are looking for from a mediator?

Some parties look for validation of their claims. Some parties look for guidance. Some parties are looking for sympathy. Some parties look for mediators to tell the other side that they are wrong – that usually leads to an unsuccessful mediation.

9. Can you tell what confidentiality means at a mediation session and why it is important?

I tell parties that a mediation is like going to Las Vegas – what happens at the mediation stays at the mediation. It’s extremely important for the mediation to remain confidential as it encourages the parties to be open and flexible.

10. Can you tell us what bracketing is and whether it has been helpful to you in your mediations?

Bracketing happens when the mediator suggests a range in which the negotiations should be taking place. It is a helpful tool when the parties are reluctant to make significant movement in their relative positions as they don’t want to be perceived as being uncertain of their case or weak in their negotiating posture.

11. When have you found that a mediator’s own evaluation of a case should be made known to the parties, if at all. When do you feel it is appropriate to express your evaluation of a case at a mediation. Do you feel that a mediator evaluation, if expressed, can in some cases hurt the process and the prospects of settlement, and why?

I think a mediator’s own evaluation can be useful in a very limited number of circumstances. A mediator must be mindful of the fact that the parties have thought about their cases much more than the mediator has before the mediation occurs. A mediator can hurt the process if he or she is perceived to be taking sides, and giving an evaluation that closely tracks one side’s evaluation can lend itself to that perception.

12. From your experience as a neutral, do you have any tips or suggestions for participants at a mediation session to maximize their chances for a successful mediation?

I believe that parties should sit down with their clients and decision makers at length before a mediation and discuss the pro’s and con’s of their case and be willing to keep an open mind to suggestions made by the mediator. Parties should have a good idea where they want to be at the end of the session but they should not be so inflexible as to make it impossible to conduct meaningful negotiations.