Three Lessons about ADR

by JAMS
Contact

Having recently completed a manual about the ADR process, there are three features of mediation that jump out at me as noteworthy, but are often overlooked by the practitioner. First are the multiple opportunities for the alert attorney to engage opposing counsel in a mediation of a pending court case without seeming too eager to mediate. Second is the value to counsel of participating in one or more pre-mediation conference calls, whether joint or individual, with the mediator. And third is the necessity for counsel to keep up with the law on the enforcement of mediated agreements.

Starting with the multiple opportunities for scheduling your mediation, most state and federal courts now have some version of an early intervention event, shortly after the issues are joined, when mediation can, and in some jurisdictions must, be discussed with the court. These are mandatory events when counsel can freely evaluate and choose mediation, under the watchful eye of the court, and without the pressure of having to initiate the conversation cold with an adversary.

Often more appealing, due to the need for discovery and motions practice, is the opportunity to engage opposing counsel in mediation at the final pre-trial conference or even in the days just before trial.  Most court rules, including those in Massachusetts, require counsel to report on the status of settlement discussions at the final pre-trial conference. This allows mediation to readily enter the picture and the trial date to be adjusted accordingly. On the other hand, persuading a judge to continue a trial at the last minute to permit mediation takes a skillful appeal to judicial economy and, to succeed, should be accompanied by a joint commitment to a particular mediator and date so the trial can be appropriately moved ahead.

The value to counsel of one or more pre-mediation conference calls with the mediator cannot be overstated. While Judge Lynn Duryee’s recent JAMS blog on the value of the pre-mediation brief is required reading, the ability to engage the mediator in a discussion of issues in the brief as well as to answer the mediator’s questions is invaluable. Many mediators will hold a joint pre-mediation conference call, and some will make the content quite mechanical (names of attending parties, time constraints, etc.). This is no reason to miss emphasizing points made in the brief. Of particular value is the opportunity provided by some mediators for a follow-up private conference call. The mediator will usually have a specific question or two based on the brief or on the joint conference call, but again, counsel can use this opportunity to stress particular points.

Counsel is wise to keep up with the fact patterns of new appellate decisions because in Massachusetts, and generally, the basic principles of contract law apply to the enforcement of mediated agreements. Recent decisions, just in June 2014, enforcing or remanding mediation agreements include CEATS, Inc. v. Continental Airlines, Inc. (mediated agreement enforced despite mediator’s failure of disclosure), and Patel v. Patel (mediated agreement remanded on issues of authority to sign and ambiguity). Additional ways to keep current include the ADR Cases section of Dispute Resolution Magazine published quarterly by the American Bar Association and the Dispute Resolution Alert published quarterly by JAMS.

Written by:

JAMS
Contact
more
less

JAMS on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.