One of the unique benefits of participating in a mediation is opening the door and allowing another voice to enter the room. Litigants and their counsel will readily admit that after protracted litigation and the ongoing acrimony that often escalates within a dispute, it is oftentimes very difficult for the parties involved to manage their … Read more
There are clear guidelines that a mediator must follow as part of a successful mediation process. Of upmost importance is the impartiality of the mediator, demonstrating a lack of bias for any party or issue that may be raised during the mediation session. Inherent in that position of impartiality is the avoidance of any conflict … Read more
Mediators who work in the employment arena helping to resolve employee claims for discrimination, harassment or retaliation are facing new challenges when it comes to the issue of including standard provisions in their settlement documents that address the confidentiality and non-disclosure of the terms of the agreement. Typically, an employer’s motivation for reaching a pre-trial … Read more
The black robed judge peered over the elevated large wooden bench and spoke to the litigants with a stern tone. “I’m suggesting that the parties attempt to mediate their dispute. Why? Because all I can do from the bench is issue a money judgment either for or against one of the parties. But in mediation … Read more
It is certainly not that uncommon to be in a mediation where one side feels that it has moved to its “lowest number” while the other side has reached its “highest number” and the gap cannot be overcome. It is at a juncture like this where mediators can choose to insert themselves into the negotiation … Read more
Certainly, when parties are otherwise unable to reach consensus on a settlement, the decision to utilize mediation as another method to enhance discussions is oftentimes a positive choice. Mediation offers the parties a new “playing field” where each side can arrive with a new perspective on resolution. Mediation offers the opportunity to include a third … Read more
There is an ongoing debate over the benefits of including opening statements in mediations. Opponents claim that allowing opposing parties to make (possibly vitriolic) statements, outlining the strengths of their respective cases and the weaknesses of the opposition, is the last thing needed right before the parties attempt to resolve their dispute. Supporters contend that … Read more
We’ve all heard it said that a successful mediation is when “everyone leaves unhappy”. Certainly, the expression is intended to convey that sometimes to make a mediation work, the plaintiff gets less than they expected to receive, and the defendant pays more than they expected to pay- so everyone is unhappy. Such a sentiment may … Read more
A cornerstone of mediation as an approach towards dispute resolution is the understanding that the process is considered confidential. Why is this important? Essentially, it is the fact that the parties can freely discuss the merits of their case, without the fear that their position will be undermined, that permit the mediation process to help … Read more
It is hard to keep track of the differing opinions coming out of the Federal Court of Appeals and the Supreme Court on the issue of the enforcement of arbitration provisions in different types of contracts as well as the ability to include a class action waiver as part of that arbitration dispute remedy. In … Read more