DR Section starts 'Best Practices' series

Issue January/February 2017 By Brian R. Jerome

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 neutrals.

Otherwise Occupied

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.

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