The Dispute Resolution (DR) Section held their first of three
"best practices" events at the Massachusetts Bar Association in
December. The meetings are designed to provide practitioners with
opportunities to discuss actual challenges unique to their roles as
The mediators who joined the dialog all agreed on the importance
of having the key individuals with full settlement authority
physically attend the session, and discussed pre-mediation planning
and notification measures both DR providers and counsel should take
to assure such attendance and prevent surprises on the day of the
session. The participants discussed issues that arise when key
decision-makers were either not in attendance during the session or
available only by Skype, videoconferencing or by telephone. Related
issues were discussed where key decision makers were only available
for updates as needed or participating partially or entirely while
offsite. The importance that a mediator is allowed to have direct
access to such offsite decision makers was stressed. Understanding
what it means to "have authority" was discussed, whether it means
that an insurance representative attending must bring policy limits
authority or authority to meet the demand, and issues arising when
the decision maker attending has only limited authority, beyond
which others not in attendance need to consulted.
Problem or Solution?
How a mediator might deal with counsel who may be more part of
the problem than the solution at the session was discussed by the
participants. It is the mediator's challenge to determine how to
best deal with the often strong persona of the attorney advocate,
navigating these waters while not damaging in any way the
attorney-client relationship. Some neutrals used various methods
similar to the court's "side bar" to frankly air such issues with
the attorney privately and not in front of clients.
Mediation as a Process
Some cases cannot reach settlement at the initial session and
the importance that neutrals and parties consider mediation as a
process and not a single event was discussed. Mediators must be
willing to remain involved in cases that may not settle at the
initial mediation session, to allow the dust to settle and then
have critical post session communications that often mean the
difference between a settled case or not.
Users and practitioners are welcome to join us at the upcoming
Best Practices for Advocates event on Feb. 1, 2017, at 5:30 p.m. at
the MBA's Springfield office.
Brian Jerome is chair of the MBA's Dispute
Resolution (DR) Section Council.