Tell everyone your background
I am an attorney who has been representing customers and employees of securities and financial services firms in disputes with those firms for more than ten years. I became an attorney after being a financial advisor and a certified financial planner with what is now Ameriprise Financial for more than ten years. In combining my financial expertise with my legal training I was able to be work on large complex cases that required independent and creative thinking. Understanding the practice of the financial services industry was invaluable in representing customers and employees. Now, I am focusing on alternate dispute resolution in commercial and civil cases. Many of the disputes I handled were arbitrated at Finra and the AAA and I wanted to use my experience to facilitate resolution rather than being part of the dispute.
What made you decide to become a mediator? Define your role
I became a mediator because the cost of litigation, in time, money and emotion, is enormous. It is expensive for both sides, regardless of the what assets they may have. For a business, there is time employees lose from productive work to prepare documents and testimony, money for lawyers and the emotion of all participants involved. Often, defendants feel they are being held responsible for something they did not do wrong. For plaintiffs, there is time lost from work to prepare, cost of the lawyer and the emotion associated with wanting justice. Mediation is a process by which a mediator or neutral facilitates communication to promote settlement, reconciliation or understanding. The mediator’s judgment is not part of the process. My role as the mediator is to facilitate the conversation to promote settlement, reconciliation or understanding. Mediation is voluntary and confidential. I am neutral, have no stake in the outcome. I am there to help focus on how to move to the future. I do not advocate for any party. I am the guardian of the process and do not act as an attorney and give legal advice.
What preparations do you do before beginning any mediation?
I prepare by reading the complaint (the doc filed by the plaintiff or the one bringing the lawsuit) and the answer (the doc filed by the defendant) and whatever the parties want me to read. I ask the parties to prepare for me and it can be as informal as an email, the party’s contention as to liability and damages, status of any negotiations, who will attend and who has authority to settle, and a range for settlement.
I have a brief conversation with the attorneys prior to the mediation session to introduce myself and to ask what they are looking for, what do they want to happen as a result of the mediation, what do they need to make that happen and how could their present situation be improved?
Then I am ready. As hopefully are the attorneys and parties.
What are the procedures that are required? What type of cases do you mediate?
I am not sure what you mean by procedures. Typically a mediation session is held in a conference room at one party’s law firm or the courthouse. A mediation session begins with explaining what is mediation (this is important for the parties as often they have not attended a mediation session before) what is my role, that mediation is confidential and voluntary. Then I ask the parties (the attorneys for the parties) to make opening comments. And, then I facilitate a back and forth. A conversation. Often there is a need to explore an issue with a party alone (ask the other to leave). This is called a caucus and that is a confidential conversation between me and that party and attorney and I will only disclose the parts of that discussion with the others if the party in caucus wishes me to so as to advance an understanding. After exploring what happened and letting the parties tell his or her story there is often a move towards greater understanding which allows for reconciliation or settlement. The questions above what do they want to happen, what do they need to make it happen what do they want as a result and how can their situation be improved. There is often overlap between or among the parties. They need a chance to communicate in a safe environment. It is my role to do that.
I mediate employment cases, securities cases, fee disputes and general commercial and civil cases.
Define Liability and damages
Liability is the obligation to do or to refrain from doing something, a duty which eventually must be performed; an obligation to pay money owed as opposed to an asset; also used to refer to one’s responsibility for his conduct, such as a contractual liability, tort liability… obligation in the law
Damages is the monetary compensation which the law awards to one who has been injured by the action of another; recompense for a legal wrong such as breach of contract or tortious act.
What is the difference between a mediator and an arbitrator? Under what circumstances would an arbitrator is better for a case?
Mediation is a voluntary non binding process. It is where a neutral or mediator facilitates a dispute to promote communication to promote settlement, reconciliation or understanding. It does not have to be a legal dispute. Mediation is a process for conflict resolution.
Arbitration is a matter of contract. Parties by agreement submit a controversy or dispute to persons or arbitrators chosen by themselves for determination. Usually there is an arbitration clause in a contract providing for the arbitration of disputes arising under the contract. The arbitrator is an impartial neutral person chosen by the parties to solve the dispute and is vested by the parties with power to make a final determination concerning the issues in controversy. The decision of the arbitrator is called an award and is binding. There are limited appeals. Arbitration is meant to be a more efficient and less expensive alternative to full scale litigation. Arbitration is common in commercial disputes, labor management relations, no fault insurance plans and uninsured motorist.
Define the type of conflicts that can arise during a mediation and how they are handled?
Who attends mediation?
I am not sure what you mean by conflicts during a mediation. There are often disagreements over facts, liability and damages. The mediation is designed to have a conversation in a non binding confidential setting to work out those differences and find points of agreement.
How is information shared? Do you have to present all of your information or can you keep some things back until the final settlement is decided?
The information that is shared is the information one party feels the other needs to understand its position and interests. You only present what you think will further the conversation. Again, the mediator helps the parties decide what they want to happen as a result of the mediation and what do they need to get there.
After a settlement is reached there is no reason to say anything. The dispute is over and settled. If you are holding something back until after settlement then it is not a settlement because you would still need something from the other party.
How are intractable conflicts resolved?
I am not sure what you mean by intractable. All conflicts or disputes seem intractable in the beginning and each side believes it is going to trial. Mediation is a way to give voice to what happened so that you can move forward and put an end to the conflict. The conflicts that are intractable are the ones in which a party wants justice and have his or her day in court and there is nothing else that will do.
In your article you explain what the mediator should do to prepare before the date of the mediation?
It is important for the mediator to be prepared.
What are the steps you take and can you share your checklist with our listeners?
I ask the attorneys’ for the parties to prepare for me a memo one week in advance (and it can be informal such as an email containing the information)
- Your party’s contentions as to both liability and damages;
- the status of settlement negotiations;
- the names of persons, in addition to counsel. with full authority to resolve the matter who will attend the mediation; and,
- Your party’s reasonable settlement range, including any non-monetary proposals for settlement of the action.
After I receive the memo, I have a brief conversation with each attorney privately to discuss the attorneys’ expectations for the mediator, what challenges the attorney believes he faces, who with authority is coming (and are we missing anyone), does the attorney have a preference for the process, focus the issues
I then reread and review the memos and what was discussed. I prepare my opening remarks to make all participants comfortable.
I get all papers ready and then I go. I like to arrive early to prepare and see the room. Make sure there are enough chairs. A telephone.
How is a settlement reached?
I don’t know how exactly settlement is reached. I do know that when it is, the parties have been prepared properly by their attorneys. Expectations are reasonable. The parties have a chance to be heard. It is what I call an iterative process by which I mean it is a back and forth and little by little each party better understands its position and that of its adversary and then there is a meeting of the minds that all can be satisfied with where we are.
Do all parties have to agree?
By definition, all parties have to agree or there cannot be a settlement.
What happens when there is no one from one side to be able to sign off or agree to the settlement?
There cannot be a settlement if there is no one from one side to sign off or agree to a settlement. A settlement agreement is a contract and is binding on the parties who agree.
The parties can have a tentative agreement if say a party needs approval by a board but usually it is approved if the party at the mediation was someone with authority and agreed to the terms.
If no one with authority and by authority I mean someone who can sign a settlement agreement and either be bound or bind a firm with his or her signature then the mediation should not take place. It is a waste of time. The person or persons who have the power to make the decision to accept or reject offers needs to be there or be accessible.
Sometimes due to circumstance and it is not the preferred manner in which to hold a mediation session, the person with authority is available by telephone.
It is preferable for the individuals to be in attendance because each side needs to assess the credibility of the parties and ultimately the witnesses. For example, a defendant may believe he has a strong case and did no wrong but the plaintiff is so believable and vulnerable as to have a much stronger case due to his or her ability to tell a story. The opposite is also true. A plaintiff can have so much trouble telling his or her or be so fidgety that is not believable. So many cases are he said/she said that how someone says something becomes the critical element.