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

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.

Mediation: Achieving Success

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

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

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

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

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

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

Divorce Decree Can’t Compel Mediation

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

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

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

What Happens in the (Mediation) Room Stays…

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

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

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

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

 

 

MDRS Presents ADR Techniques to Nigerian…

MDRS is honored to again have been asked to present on alternative dispute resolution to a high-level delegation from Nigeria visiting the United States seeking out information on ADR so that they can further such implementation in their country. This is the third year that MDRS will have the honor of working with this admirable group of dedicated policy-makers. The presenting panel, featuring veteran MDRS Neutrals Attorney Brian R. Jerome and Attorney Paul R. Kelley, will again be joined by Massachusetts Superior Court’s Associate Justice Dennis J. Curran.  We are delighted to welcome Massachusetts Superior Court’s Associate Justice Shannon Frison to our group presentation this year as well. The event on Tuesday, August 19, 2014 will include a number of esteemed, high-level Nigerian Judges and Attorneys traveling to the United States to work with the University of Massachusetts Center for Peace, Democracy, and Development who desire in-depth information about ADR and how it can help their country and their judicial process. MDRS is very pleased that such a distinguished group will join us for this noble and interesting discussion. We are excited for the event and to share the numerous benefits of ADR with those around the world.

Jeanne M. Kempthorne selected for Super Lawyers

We are pleased to announce that one of our distinguished neutrals, Jeanne M. Kempthorne, has been recently selected for inclusion in Super Lawyers 2013 by Thomson Reuters.

Super Lawyers is a rating system for lawyers in a range of practice areas that uses a patented multiphase selection method to choose only the best attorneys to hold the title. The rigorous and discerning selection process includes peer nominations, evaluations of professional achievement and third-party research to ultimately choose only the most exceptional attorneys in each practice area. Super Lawyers provides a comprehensive listing of esteemed attorneys, an unmatched database for those seeking quality legal counsel.

We are proud to have Attorney Kempthorne on the MDRS team, and hope you will join us in celebrating this much deserved accolade. You too can work with this super lawyer, who is available to help you mediate or arbitrate your cases by calling MDRS at (800) 536-5520.

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.

Foreclosure Mediation in Massachusetts

Although Foreclosure Mediation programs are not statewide in Massachusetts, three major cities have instituted mandatory programs through city ordinances as a means to help negotiate alternatives to foreclosures.  Through foreclosure mediation, homeowners and lenders engage in guided negotiation with a skilled mediator who is also a foreclosure expert.  Together they work to define new agreements which ultimately benefit all involved parties to the dispute.

Prior to the mediation, the homeowner provides an accurate and current look at their financial situation, so that the lender has the opportunity to craft potential options that might allow the homeowner to achieve a loan modification enabling them to keep their home.  Other alternatives considered positive outcomes could include a short sale, or negotiating a dignified exit from the property.  Another positive effect of foreclosure mediation is that it often enables the homeowner the opportunity to work with a loan counselor who can help ensure that the homeowner understands their financial situation and loan modification program options, enhancing their ability to work toward a successful outcome.

While foreclosure mediation does not provide a certain avoidance of foreclosure, it is the best – and often times – last chance for the parties to work together to take a final and serious look at their individual situations to determine whether foreclosure can be avoided. One should also be cautious of Foreclosure Rescue Scams. If you are involved in a foreclosure event, MDRS can help.  We have neutrals who are experts in foreclosure mediation, who understand the needs of both lenders as well as homeowners, the state and federal programs currently available, and the case law applicable to these matters.

Now, More Than Ever, ADR is the Answer. 

Please call us at (800) 536-5520 to discuss your case.