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.

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.

Resolution of Complex Issues Go Beyond Insurance

When people think ADR [Alternative Dispute Resolution], imaginations are sometimes limited to situations having an ultimate financial settlement. While this is in many cases true, MDRS has assisted clients in resolving conflicts well beyond dollar signs.

Consider, for example, the family-owned business run for decades by Mom and Dad, now turned Grandma and Grandpa, who are thinking about retiring. Mixed families, involved together for years, are suddenly at odds as their jobs, positions, and futures feel less steady. Who will be chosen to be the next business – and perhaps family – leader? Is there favoritism involved? And what about relationships that are already contentious…are they likely to become even more problematic without Grandma/Mom and Grandpa/Dad keeping the peace and ensuring everyone stays focused on the business? Is it all fair?

There is the question of who works how many hours doing what job to consider, and of course how much they get paid for doing so. Perhaps family salaries were never subject to discussion before, and there are now unhappy surprises. There are benefits, perks, and power struggles on the line. There is, at the very core of the matter, a viable business that must be preserved and run professionally, regardless of these personal and personnel struggles.

MDRS can help resolve a wide range of conflicts, whether comprised of an ultimate financial determination or a complicated host of other factors. Our skilled mediators and arbitrators bring incredible experience to the table and help our clients achieve the results they need: closure and resolution of the issues.

Join thousands of believers when you become one of our clients. Call MDRS at (800) 536-5520 or visit us at www.mdrs.com to learn about how we can help you do more.

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.

Alternatives to Foreclosure

If you are behind in payments on your mortgage, you may be concerned about the very real possibility of foreclosure. If you are in default on your loan and are considering options that you can take to avoid foreclosure, here are some alternatives to consider.

Reinstating Your Mortgage

You can reinstate your mortgage by making up the missed payments along with any fees and interest the lender requires. Sometimes fees can even be negotiated to a lesser amount. Once you receive notice from your lender that foreclosure is imminent, you will have a certain amount of time to pursue this option. While this option is ideal, it can be difficult to accomplish since financial difficulty is often what leads to impending foreclosure in the first place.

Refinancing or Loan Modification

These options can be ideal, since they allow you to secure a better rate, and/or pay off your loan and start over. But issues such as current income and the ability to sustain your loan, the amount of equity in your house, neighborhood values and more can affect these possibilities. If your mortgage is owned by Fannie Mae or Freddie Mac, you may qualify for refinancing under the Home Affordable Refinance Program.

Taking out a Reverse Mortgage

With a reverse mortgage you can access the equity of your home without selling. With a reverse mortgage you receive money from a lender which you typically do not need to pay back while you still live in the house. If you sell the house, the loan must then be repaid. You are a candidate for a reverse mortgage if you are over 62 years old and have considerable equity. The downside of a reverse mortgage is that they take part or all of your equity, leaving you with a significantly smaller estate to pass to your beneficiaries. Also, while you do not have to make mortgage payments, you may still be liable for property taxes and other fees, so making certain you can afford these costs is key.

Taking the Fight to Court

If you believe that your lender didn’t follow state or federal law when approaching the foreclosure process or you feel they violated the terms of your loan agreement, you may decide to fight the foreclosure in court. Foreclosing parties are often required to show documentation that they own the mortgage loan and have a right to foreclose.

Giving up your House

When foreclosure is looming, you may decide that it is the right choice for you to give up the house. If you decide that this is the best route for you, there are a couple ways to approach this decision.

One way is to arrange a “short sale” and sell the home as a means to avoid foreclosure. With a short sale, you are selling the house for less than the outstanding debt. If you have more than one mortgage on your house, this option may not be a possibility, since all lending parties have to agree to the terms of a short sale, and your second and third mortgage lenders will not profit from this scenario. If you are able to arrange a short sale, it will have an added long-term benefit by not negatively impacting your credit score as much as foreclosure or bankruptcy.

Another way to give up your house as a means to avoid foreclosure is to sign a “deed in lieu of foreclosure,” which simply means handing over the house to your lender by deeding the property to them so that foreclosure becomes unnecessary. If you decide to pursue this route, make sure you come to an agreement with your lender so that they won’t pursue any further deficiency. It is always important to get agreements of this kind in writing. Some homeowners are able to negotiate a “cash for keys” agreement where the lender provides the homeowner with a small amount of money in order to assist the homeowner in relocation.

Ultimately, while foreclosure is an unfortunate scenario, there are ways to avoid it, especially if you act sooner rather than later. If you are considering your options and are unsure which route to take, foreclosure mediation allows for open communication between homeowners and lenders on neutral ground so that a mutually agreed upon alternative can be reached.

Resolving Nursing Home Liability Cases with ADR

The number of Americans age 65 and older is expected to double in the next thirty years. With advances in medicine and an increased life expectancy rate, that estimate may be low. Some forty-five percent of the U.S. population now sixty-five or older will reside in nursing homes before they die.  Of the baby boom generation, it is expected that 5% or 3.9 Million people will eventually be cared for by these facilities on either a short or long-term basis. The number of nursing home litigation cases has increased significantly over the past ten years. Federal and state regulations have been promulgated that now govern virtually every aspect of a nursing home’s care of its residents.  Nursing home litigation is now widely recognized as one of the fastest-growing areas of health care litigation.

Alternative dispute resolution (ADR), whether in the form of non-binding mediation or binding arbitration, provides litigants in nursing home liability cases a valuable and effective alternative to the time, expense, anxiety and uncertainty of protracted litigation and trial in the court system.

Types Of Cases MDRS Handles:

Our MDRS panel of neutrals have experience handing a wide array of nursing home abuse and neglect cases including, but not limited to, matters involving inadequate nutrition or hydration, mistakes in prescription medication, slip and falls or unattended falls, bedsores, sepsis, unreasonable or unnecessary restraints, unsanitary conditions, emotional neglect, failure to protect patients from violent or sexual assault, misconduct and rape, wrongful death and medical malpractice cases.

To better understand why ADR, specifically non-binding mediation and binding arbitration, is the preferable process for resolving these cases effectively, efficiently and fairly, a brief look at this area of the law may be helpful to those who might be considering ADR or selecting MDRS.

Federal and State Regulation of Nursing Homes:

The promulgation of federal and state regulations concerning how nursing homes must care for their residents has substantially fueled the large increase in litigation over the past decade. These regulations now cover nearly every aspect of nursing home care.

Briefly stated, federal law mandates the framework for what the states must do, and states may impose additional regulations. Nursing homes are federally regulated by the Omnibus Budget Reconciliation Act of 1987 (OBRA), 42 U.S.C. §§ 1395-1396 (1999), and are individually licensed in the state where they operate. OBRA lays out standards for nursing homes, along with a patients’ bill of rights. Notably, OBRA requires nursing homes to conduct an annual assessment of each individual resident, create individualized care plans, reduce the use of chemical and physical restraints, and ensure adequate staff training in special needs situations. Among the rights guaranteed to residents under OBRA, is the right to be free from neglect and abuse. Facilities receiving federal funds through Medicare and Medicaid must comply with OBRA.

In Massachusetts, nursing home regulations are issued by the Department of Public Health (“DPH”).  Regulations issued by the Massachusetts Attorney General fall under the state Consumer Protection law, Ch. 93A, and these regulations are designed to supplement existing statutes and regulations. The Attorney General works and cooperates with other state and federal agencies in enforcing 940 CMR 4.00 and other regulations. 940 CMR 4.00 Long Term Care Facilities defines certain unfair or deceptive acts or practices. These regulations are designed to promote the protection, comfort, health and well-being of consumers of services provided by long-term care facilities, to be consistent with existing legal standards, and to be as responsive as possible to the constraints and administrative realities under which long-term care facilities operate.

Massachusetts Governor Deval Patrick recently signed legislation which establishes minimum care standards at dementia special care units and nursing homes. The legislation will provide dementia-specific training for direct-care workers, activity directors and supervisors in traditional nursing homes and special care units.

Claims for Violation of MGL c. 93A Consumer Protection Statute:

The attorney general has promulgated regulations pursuant to M.G.L. c. 93A, § 2(c) to promote the protection, comfort, health and well being of nursing home residents. The regulations define acts and practices that constitute unfair and deceptive acts and practices prohibited by the Consumer Protection Statute. The regulations also provide that it “shall be” an unfair and deceptive act and a per se violation of the Consumer Protection Statute for a nursing home or the administrator of a nursing home to fail to comply with any existing state or federal statute, rule or regulation which provides protection to residents of long-term nursing care facilities.

The Massachusetts Patients’ Bill of Rights (M.G.L. c. 111, § 70E), the Department of Public Health regulations (105 C.M.R. 150 et. seq.), the attorney general’s regulations (940 C.M.R. 4.00, et. seq.), the Nursing Home Reform Act (42 U.S.C. 1395i-3, 1396r) and the Federal Health Care Financing Administration Regulations (42 C.F.R. 483, et. seq.) all have regulations which if violated can risk exposure by long term care facilities to punitive damages and attorneys’ fees under the Consumer Protection Statute.

As a result, nearly every nursing home negligence case has been accompanied by a 93A count citing one or more of the many applicable regulations as the foundation of the 93A claim, raising the potential for significant damage awards in these cases.

Causes Of Action Brought In Nursing Home Liability Cases:

Causes of action brought in these matters often include, but are not limited to:

  • Negligence claims…where negligence per se is a very important cause of action, based upon reasoning that a statute or regulation sets the standard of care and the unexcused violation of a legislative enactment or administrative regulation is therefore negligence in itself.
  • Wrongful death claims.
  • Intentional tort claims…where a deliberate act causes harm, such as where a patient is the victim of a sexual assault or assault and battery.
  • Negligent hiring and supervision claims…including claims that a nursing homes is understaffed or where there is too little training… these issues will include staff training, adequacy of medical care and nursing care and profit motive of the operator.
  • Loss of consortium….a claim by a loved one of the resident, typically a spouse or child, for their suffering as a result of the resident’s injury or abuse.
  • Third party responsibility…a nursing home can be found liable because of acts of a third party when the nursing home fails to protect residents from other residents or others in the home and is thereby injured or assaulted by another resident.
  • Breach of statutory or regulatory rights, duties or responsibilities.
  • Chapter 93A Consumer Protection Claims where punitive damages and attorney’s fees may be sought.

Why ADR Is The Answer In Nursing Home Liability Cases:

Mediation:

Experience suggests that perhaps no area of alternative dispute resolution contains more emotional issues than nursing home liability cases and elderly abuse. It is often the adult children who must decide to place their parent in the care of a nursing facility, a decision that is difficult for the entire family and often associated with emotions of guilt, anxiety and perhaps disagreement as to the choices made when the parent’s health may be rapidly deteriorating.  If and when the parent suffers injury, illness or death while at the facility, anger and the desire for retribution can be accordingly great. It may be difficult for the family members to consider defenses or arguments made by the facility or their attorneys, whether rightly or wrongly, that the injury, illness or death may have been a byproduct of the parent’s deteriorating medical condition and not the fault of the facility.

Mediation is an ideal forum for parties in these emotional cases. An experienced mediator, with substantive knowledge of the law as well as the facts of the specific case, will sculpt a process where all parties can be heard with respect and even-handedness.  After a joint session with all parties, the mediator will likely have individual private and confidential meetings with the plaintiff and key family members first and then the defendant and their representatives, focusing on the key issues of the case and will typically point out the risks associated with each side’s position in an effort to ensure maximum flexibility and compromise. Experience suggests that nearly 90% of mediated nursing home liability cases reach settlement at the mediation session. When settlement is reached the mediator will obtain a signed and binding settlement agreement.

Arbitration:

Generally, most cases submitted to Massachusetts Dispute Resolution Services for binding arbitration are by parties who, with equal bargaining power, mutually agree at some point after a dispute has arisen to avoid the many disadvantages of litigation and trial in the Court system and resolve their case through the use of a mutually acceptable arbitrator, who will render a binding decision.

However, particularly over the course of the last ten years, there has been a significant increase in the use of pre-dispute mandatory arbitration clauses being contained in various contracts existing between parties, including nursing home contracts. Where parties, with equal bargaining power, mutually agree in advance to bring disputes that may arise between them to binding arbitration, the Courts, including Massachusetts, have given great deference and support to the validity of such pre-dispute mandatory arbitration clauses.

However, there have been several cases recently litigated where a nursing home resident or their family allegedly did not know or fully understand that they had given up their right to bring to Court their liability claim when they signed a nursing home contract upon admission. The Courts, both federal and state, have been called upon to decide the validity and enforceability of such arbitration clauses, with varying results.

For a more expansive look at these cases please refer to our recent MDRS article Arbitration – Voluntary or Mandatory? The Use of Pre-Dispute Arbitration Agreements.

Factors considered by the Courts in deciding whether to uphold, or to void as unconscionable, a mandatory arbitration clause in a nursing home contract include:  the  intelligence and education of the signatory, his familiarity with the process of admission, whether they were required to sign the agreement as a condition of admission, any undue influence or pressure put on the signatory, whether the arbitration clause was obvious and/or presented as a separate document or was buried within a large document, whether it was discussed or explained at the time of admission, whether it was bilateral in that either party can invoke its provisions, whether all rights and remedies available in the courts were preserved for the arbitrator, whether there was a unilateral right of rescission for a given period after execution of the agreement, whether the patient’s acute condition had created overwhelming pressure on a relative to sign, and whether the arbitration agreement limited the residents’ right to file a grievance or complaint with the facility or any appropriate government agency, from requesting an inspection from such an agency, or from seeking review under applicable federal regulations of a decision to transfer or discharge the patient.

For an instructive Massachusetts case on this topic please see Miller v. Eric Cotter & others, 448 Mass. 671 (2007).

Pending legislation concerning pre-dispute arbitration agreements:
H.R. 6351 (112th): Fairness in Nursing Home Arbitration Act of 2012 was filed in August of 2012 and would make any pre-dispute arbitration agreement between a long-term care facility and a resident of such facility (or person acting on behalf of such resident, including a person with financial responsibility for such resident) invalid and specifically unenforceable. Prior versions of this act have been filed yearly since 2009 and have not garnered sufficient support for passage.

Conclusion:

Litigation and trial within the Courts of a nursing home liability case will be complex, expensive, time consuming and emotional for all parties involved, with a result that will be uncertain. Non binding mediation and/or binding arbitration of these difficult cases offers parties an alternative approach that can achieve a result that is efficient, effective, fair and economical, and ADR is a more appropriate forum for resolution.

An experienced mediator or arbitrator, with knowledge of the complex law in this area and with the ability to understand the complex facts usually involved, is better suited than a lay jury, after years of litigation, to achieve an appropriate result.

Should you wish to submit a nursing home liability case to MDRS or have any questions we can answer please contact us at (800) 536-5520. We can help you resolve your case.

MDRS Appointed ADR Provider to the Superior Court

We are pleased to announce that MDRS has been approved to serve both the Superior Court and the Land Court of the Commonwealth of Massachusetts as a court-connected provider to their Alternative Dispute Resolution programs. It is an honor to have been chosen for these three-year terms, and we are looking forward to assisting the parties who choose MDRS in working toward resolution of their cases so as to achieve results that are efficient, effective, fair, and economical, while simultaneously aiding our over-taxed court system.

ADR Pioneer Roger Fisher Dies

Roger Fisher, a pioneer in the field of international law and negotiation and the co-founder of the Harvard Negotiation Project, died on August 25, 2012. He was 90 years old. A professor at Harvard Law School for more than four decades, Fisher established negotiation and conflict resolution as a field deserving academic study and devoted his career to challenging students and colleagues alike to explore alternative methods of dispute resolution.

Over his career, Professor Fisher eagerly brought his optimistic can-do brand of problem solving to a broad array of conflicts across the globe, from the hostage crisis in Iran to the civil war in El Salvador. His emphasis was always on addressing the mutual interests of the disputing parties instead of what separated them. As he would tell his students, “Peace is not a piece of paper, but a way of dealing with conflict when it arises.”

Fisher’s work laid the foundation on which much of the field of negotiation and conflict resolution has been based. His best-selling book, “Getting to Yes: Negotiating Without Giving In” (co-authored with William Ury in 1981), has been translated into 23 languages and has sold more than 3 million copies worldwide. Prior to the publication of “Getting to Yes,” there were almost no regular courses in negotiation taught at academic institutions. Now there are hundreds, if not thousands, of courses devoted to negotiation.