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

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 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 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.



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.

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.

MDRS Spotlight on Premises Liability

According to a recent statistic, the National Safety Council reported that slip and fall accidents account for 1 million visits to the ER per year.  And these account for only a fraction of premises liability cases, which can occur from any injury suffered on property belonging to or maintained by another person or party.  Premises liability cases can be complex and unique, with many factors that can impact an individual case.  After all, where premises liability is concerned, it can be difficult to prove whether the fault is on the injured party or the owner of the property where the injury has occurred. Those involved in these unfortunate accidents deserve fair resolution.

Using Alternative Dispute Resolution to settle these types of cases can often be the best choice for both parties. Rather than waiting years to resolve their case, both parties will be able to come to an agreeable settlement without leaving the decision in the hands of the court system.

What makes ADR the best choice for resolving these cases? Control is in the hands of those involved and a settlement can be reached that is fair and acceptable to both parties.  In addition, a case can be handled quickly, at the pace determined by those involved, without sacrificing valuable time and money, which is often a consequence of cases brought to trial.

At MDRS, we have knowledgeable and skilled mediators who have a multitude of experience handling premises liability cases.  Whether it be a building maintenance issue, a construction site incident, the use of defective tools or equipment, an animal attack or a workers’ compensation claim, our mediators have seen and handled it all, including the resolution of thousands of slip and fall cases.  Now, more than ever, ADR is the answer.  See our Areas of SpecialtyPremises Liability page for more information on how we can help resolve your case.

Dissolving Business Partnerships with Mediation

When you are involved in a business partnership, it can be daunting to think about severing that critical relationship, however, there are uncounted issues that can lead to the necessary dissolution of a business partnership. Whether it’s simply one party’s loss of interest in the business, a desire to retire, a lack of commitment that could be hindering the success of the business, or issues much more complicated and worrisome, sometimes it is essential for business partnerships to come to an end.

Navigating such a disbanding is almost always a stressful endeavor.  The process of business dissolution can be long, complicated, and expensive.  Choosing mediation positions the parties to reach fair and effective resolution together.  Your business is most likely your livelihood, and nobody wants to be involved in lengthy legal proceedings.  Instead, mediation serves to protect your business and its reputation, as well as your business relationships.  It is a very effective tool in resolving even the most contentious business conflicts.

Severing a business partnership can be hard.  With MDRS, a skilled mediator assists the parties in reaching resolution and maintaining control of the ultimate agreement.  Unlike costly litigation, mediation is inexpensive and takes into consideration everyone’s goals and issues.  And unlike going to court where settlement terms are forced upon you, in mediation the parties agree to the terms of settlement and maintain control of their case.

If you are thinking about dissolving a business partnership, MDRS can help. Our experienced mediators can guide you toward a settlement that is agreeable to all involved, taking care that your business is handled in a way you approve of.  Call MDRS at (800) 536-5520.  Now, more than ever, ADR is the Answer.

NFL Concussion Case Heads to Mediation

In April 2013, a hearing was held in Philadelphia over litigation filed against the National Football League by more than 4,000 players who allege that concussions suffered during their careers have adversely impacted their health. Plaintiffs include players who want their future health closely monitored, those already suffering from dementia, depression, and/or neurological disorders, and the families of those who have committed suicide after difficult bouts with mental illness.  The lawyers for the NFL then filed a motion to dismiss the case, claiming that collective bargaining agreements were negotiated between the NFL and the players.

U.S. District Judge Anita B. Brody is charged with the case.  Three months after the first hearing, and in response to the NFL’s motion to dismiss the case, Brody ordered both parties to mediation. The mediator is Layn Phillips, a retired federal judge. Lawyers for the players allege that the NFL concealed the dangerous cognitive effects of head trauma, and has been doing so for decades. The NFL argues that they have monitored the scientific research and followed it accordingly, issuing warnings when necessary.

Brody maintains that she will not make a decision until September, allowing significant time for mediation to take place. The mediation is non-binding – meaning that if the process isn’t working for either side, their cooperation is voluntary and without it the case will head back to court.

Mediation is often turned to in such complex cases, and can provide a way for the parties to be heard.  As opposed to a ruling in favor of either party, mediation, instead, works through each issue within the case.  All parties needs are identified and negotiated.  Legal fees are drastically lowered [imagine the costs of just the discovery portion of this case!].  Long, drawn out public court cases can be avoided.  In high profile cases, confidentiality can be maintained, and the media storm can be better managed as well.

Contact the experts at MDRS if you are involved with a situation that needs resolution.  MDRS has skilled and knowledgeable neutrals who are experts in Alternative Dispute Resolution matters.  (800) 536-5520 We can help.

Using ADR to Resolve Slip and Fall Accidents

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

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

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