//
you're reading...
Uncategorized

Part Two of my interview with Marcia Adelson

Explain the chart you included that has four columns: Plaintiff, defendant, Third Party and Issues, position and Interest: How is this filled in and with what type of information?

Plaintiff is the person or firm that brings a lawsuit. It is the injured party; it is the person seeking a remedy.

In a civil proceeding, Defendant is the person or firm being sued or called upon to make satisfaction for a wrong complained of by another.

Third party is someone other than the parties directly involved in the action or transaction who may be indirectly involved.

Issues are the legal questions such at employment discrimination based on age or sex or pregnancy, child custody, breach of contract.

Position means the liability or rights and responsibility of the party. Who is responsible and for what is that party responsible? By this I mean, what are the rights of an employee who is female? What are the obligations of the employer to treat a female without discrimination?

Interest is damages or the remedy the plaintiff seeks or for the defendant what it seeks as an outcome.

The chart at the end of my article is meant as a tool for the mediator. It is meant to help the mediator be clear as to who the parties are, what is being complained of, what remedy is sought, what obligations the defendant had, how much does the plaintiff seek
Explain the differences between securities arbitration and securities mediation

Securities mediation is to mediate a dispute involving a securities firm and a customer or employee of that firm. Mediation as we have discussed is a confidential voluntary process. It is a process by which a mediator or neutral facilitates a conversation among the parties to promote a settlement, reconciliation or understanding. It can take place before or after an actual lawsuit is commenced. It is an attempt to end the dispute outside of a decision making authority.

Securities arbitration is a dispute involving a securities firm and a customer or employee. By agreement, in the account opening documents signed by the customer or employment agreement or terms of employment, the documents or contract state that disputes will be resolved in arbitration usually at Finra (the Financial Industry Regulatory Authority).

Arbitration is a form of private dispute resolution. In arbitration, an arbitrator or arbitrators (neutral person or persons) are vested by the parties with the power to make a final determination concerning the issues in dispute. Arbitration is binding and there are limited grounds for appeal. Arbitration is usually faster and less expensive than litigation in court. Discovery which accounts for the biggest costs in litigation is usually more limited in scope and there are not usually depositions (or examinations of witnesses under oath prior to trial). Depositions are expensive in time, emotion and cost.

The difference between mediation and arbitration is that mediation is a voluntary process which is used to foster understanding and the possibility of settlement or reconciliation between and among the parties and arbitration is a private process agreed to by the parties in which someone other than the parties will make a final determination concerning the dispute.

Explain the process used at the mediation: the role of the attendees, roles that must be adhered to, your role as the mediator, final decisions and are that binding

Mediation is a process by which a mediator or neutral facilitates communication to promote settlement, reconciliation or understanding. The process is a conversation. The role of the attendees is to communicate. It is not a legal process and is not held in a courtroom with the mediator sitting in a judge’s chair. The mediator is not a judge or an advocate. The mediator is to help the parties talk and accept the past so as to find a way to move forward. The parties do not always speak in a mediation session as some attorneys do not want their clients to admit fault or “give something away.” I try to help attorneys and parties understand that the more the other side knows the more likely you will find agreement and move on.

To me, the cost of litigation is prohibitive. Thousands of pages of documents are exchanged, all most be reviewed and most likely ten pages will be used at trial. It is a lot of work. Then add in the emotional cost of testifying for both the plaintiff and defendant and years of waiting takes a huge toll on people. I want to help them through mediation find a way to move on. Acknowledge and accept whatever happened and move on.

Final decisions in mediation are binding in that if a settlement agreement is reached, then that is a binding contract. There is some case law that it needs to be signed and some that it does not to be enforceable. It is best to consider that if you do no want the agreement 100 percent do not say it is acceptable. Say yes we have an agreement when you are satisfied that the dispute is over.
Other questions

How do you choose a mediator? Qualities

 

Usually in a commercial or civil dispute (where a lawsuit is already filed), the attorneys choose the mediator. The attorneys want someone who is familiar with the law of the dispute, so for example employment or securities or malpractice or construction and someone who is neutral. Neutrality is important because both parties must trust the mediator and the mediator is not and should not advocate a point of view or a judgment.

How do you choose an arbitrator?

Again, attorneys choose the arbitrator they believe will be objective, neutral, fair, knowledgeable about the law concerning the dispute, manage an efficient hearing process.
What are the differences?

I don’t know that there are differences. Often the best mediators are the best arbitrators. You want someone neutral, fair, flexible, can conduct an efficient process, gives all a chance to have his or her say. The real difference is a mediator is usually considered the softer skill and more tuned to feelings and interests of the parties.

An arbitrator is a quasi judicial and maintenance of neutrality is paramount. An arbitrator needs to act with some authority since that person(s) is making a final determination. A mediator does not make a final determination. In mediation, the parties do.
Define the factors that would contribute to a successful mediation and or arbitration.

A successful arbitration and or mediation is one in which the parties feel that they were heard and satisfied.

Why is it vital that the arbitrator is impartial and defines the word?

Arbitration is a private process by which an arbitrator or arbitrators are give the power by the parties to make a final determination of the dispute. The arbitrator must be impartial or neutral.

You want and need someone who will make an impartial decision based on the evidence and testimony presented and not on the preconception or predisposition of the individual(s). Identifying people who are impartial and fair is a challenging task at best.

According to Collins English Dictionary, impartial means, “not prejudiced towards or against any particular side or party; fair; unbiased.”

Can you give our listeners a short overview of what happens during a real mediation?

A mediation session begins with the mediator making opening comments. In the opening the mediator will define mediation, the role of the mediator and lay out the process. The opening is particularly important for the parties who most likely have not mediated before.

Then usually the plaintiff makes some opening remarks stating what he or she believes the injury is and why.

Then the defendant makes opening remarks laying out why he or she does not believe he or she owes the plaintiff anything.

The mediator then asks clarifying questions and works to open up the discussion. And then there is some discussion to clarify and focus as to what are the interests of the parties.

Then the mediation usually breaks into a caucus with the mediator talking to one side about what that side needs from the other in terms of money or information or whatever.

The mediator relays what that side needs to the other in private according to how that side determined it wanted it said.

And it goes back and forth with the sides coming together when there is agreement.

Do the clients need legal advisors? Why or why not? What would their roles be during mediation or during arbitration? Who speaks?

I have been speaking about mediation when it occurs during a lawsuit or prior to the filing of a lawsuit. Mediation is also useful in community settings for disagreements between and among neighbors or between and among different communities.

Again, solely in the context of a legal dispute, parties need legal advisors. Legal advisors protect rights and you don’t want someone to give up a right unknowingly. Usually the attorneys speak and will let their client speak when appropriate. It is for the attorney to decide. The attorney decides based on the comfort level of the client, the client’s emotional state, preparation of the client. It is a judgment call. The mediation is usually more effective when the client is an active participant.

How long does it take for a decision to be reached?

Depends on the case.

What are the stages of arbitration?

Arbitration is usually started when someone or a firm files a claim or demand for arbitration. Arbitration can be administered by an outside party such as Finra or AAA. The respondent usually has a time specified to answer.

Then arbitrator selection.

Pre hearing conference or preliminary conference (work out timetable)

Discovery (exchange of information and documents)

Hearing

Post hearing submissions (exchange of briefs or legal analysis)

Award

What are the primary differences between an arbitration and mediation?

 

The difference between mediation and arbitration is that mediation is a voluntary process which is used to foster understanding and the possibility of settlement or reconciliation between and among the parties and arbitration is a private process agreed to by the parties in which someone other than the parties will make a final determination concerning the dispute.

 

 

What type of cases are the most difficult?

In mediation where the expectations are just not realistic and a party is convinced he or she has a sure thing. Or where a party wants JUSTICE.

Settlement by definition means you do not get everything you could get if you went to trial and won. It is to take less to end now. How much less depends on the strengths and weaknesses of your claims (all cases have strengths and weaknesses). There is no such thing as a slam dunk or sure thing.

What happens when all parties are in total discord? Does that ever happen?

Parties are in discord. I think what your are asking if a party does not want to negotiate and sometimes he or she does not. The party wants JUSTICE. The party wants the other to SUFFER. The party cannot believe he or she will lose. The party believe he or she is right. The party does not perceive a weakness.

It happens. It is sad because usually that person is in need of money that he or she will not get.
What else would you like to share about yourself, your work and how our listeners can get in touch with you if they want to use your services?

I have a website: marciadelsonlaw.com My name one work with one a. I believe in alternate forms of dispute resolution both mediation and arbitration. The cost of litigation is tremendous in money, time and emotion. Even if you win, you lose because the costs were so great. You don’t want the trial.   Move on. Our system is about money not about justice or being right. Money is a substitute for justice. Take the money and move on.

Advertisements

About Just Reviews by:gabina49:

author educator book reviewer for authors reading and writing staff developer Book reviewer for manic readers, ijustfinished.com book pleasures and authors upon request blog tours on my blog and interviews with authors I am the author of five published books. I wrote three children's books in my Bertha Series and Two on Alzheimer's. Radio show talk host on Red River Radio/Blog Talk Radio Book Discussion with Fran Lewis the third Wed. of every month at one eastern. I interview 2 authors each month feature their latest releases. I review books for authors upon request and my latest book Sharp As A Tack or Scrambled Eggs Which Describes Your Brain? Is an E book, Kindle and on Xlibris.com Some of the proceeds from this last book will go to fund research in the area of Brain Traumatic Injury in memory of my sister Marcia who died in July.

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Archives

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 2,527 other followers

Categories

my eventd

December 2014
M T W T F S S
« Nov   Jan »
1234567
891011121314
15161718192021
22232425262728
293031  

fran

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 2,527 other followers

MY EVENTS AND GREAT BOOKS

December 2014
M T W T F S S
« Nov   Jan »
1234567
891011121314
15161718192021
22232425262728
293031  

archives

Blog Stats

  • 26,775 hits
December 2014
M T W T F S S
« Nov   Jan »
1234567
891011121314
15161718192021
22232425262728
293031  

just reviews

request a review or an interview on my radio show

recenet great books

great books to read

Twitter Updates

Error: Twitter did not respond. Please wait a few minutes and refresh this page.

Radio show dates

December 2014
M T W T F S S
« Nov   Jan »
1234567
891011121314
15161718192021
22232425262728
293031  

Upcoming Events

No upcoming events

It looks like the WordPress site URL is incorrectly configured. Please check it in your widget settings.

%d bloggers like this: