Mediation

Content Areas

  • ERISA, including trustee deadlocks
  • Pensions
  • Wage and hour class actions, such as independent contractor classification, overtime, and tips
  • Higher education
  • Individual employment agreements
  • Employment termination
  • Discrimination (age, disability, housing, race, religious, gender, sexual harassment)
  • Retaliation
  • Whistleblower, including Sarbanes-Oxley
  • Non-competition and non-solicitation
  • Partnership creation and dissolution
  • Organizational dynamics (board of directors, executive director, and staff interactions)
  • Legal malpractice
  • A  wide variety of commercial matters, including contract and lease disputes

Procedures

  • Format of Mediation
    The particular format to be employed will vary, given the nature of the matter being mediated and the desires of the parties. Helping partners or co-workers with their organizational dynamics may be appropriately done with a mix of joint and separate sessions, while resolving a dispute between people who will not be in any on-going relationship may more effectively be pursued through the exclusive use of separate caucuses. Exactly how the mediation will be conducted will be discussed with the parties in advance of the initial session.
  • Pre-Hearing Submissions
    For mediations arising out of legal disputes, parties are required to sign and submit the Agreement for Mediation, and to pay in advance their respective share of the minimum fee. Prior to the mediation, the parties are asked to provide whatever information they feel would be helpful for Mark to prepare for the mediation. Since the value of cases is determined by the facts and law particular to each matter, it is very important for a mediator to gain an in-depth understanding of the case in order to effectively aid the parties in reaching a resolution. To the extent possible, the pre-mediation education process is designed to avoid imposing additional costs on the parties, so submissions to state anti-discrimination agencies, summary judgment papers, depositions, or other previously prepared documents are utilized. Parties are free, however, to prepare and submit an original and confidential statement.
  • Who Should Attend
    Ideally, parties should bring to the mediation the people with the necessary authority to conclude an agreement. Authority means the ability to fundamentally alter a party’s position, if discussions at the mediation indicate that such a change in position is warranted. Often, however, ultimate authority to settle is vested in a higher level executive who cannot be present. In such cases, this fact should be made known to the other side before the mediation is scheduled. The parties should also discuss with the mediator whether it will be helpful or counter-productive for a spouse, supportive co-worker, or a financial advisor to attend the mediation.
  • Initial Session
    Typically mediations begin with a joint session at which Mark reviews the procedures to be followed and has everyone present sign the Agreement for Mediation.  The parties’ representative may elect to present an opening statement if such a statement will further the settlement process, although often the parties agree to waive such statements.
  • Balance of the Mediation
    After the joint session, most of the mediation is usually conducted in successive private sessions with the mediator and each party.  These private caucuses are an efficient and effective way for parties to be as forthright as possible with the mediator, so the mediator can help the parties reach an agreement. If Mark feels it would be productive he may bring some or all of the participants together at various times to address specific aspects of the dispute.
  • Conclusion of the Mediation
    Ultimately, it is the parties who have the power to decide if what can be agreed to meets enough of their needs that settlement is preferable to going forward with the litigation. It is not atypical, however, for successful mediations to take more than one day. It may be necessary to gather and exchange additional information or speak to stakeholders to get their buy-in to a settlement. One of Mark’s most appreciated attributes is his tenacity in staying with a case until a settlement has been achieved.

Fees

$800 per hour, with a minimum of six hours, for all time spent in administration, preparation, and mediation of the case. The fee is split equally between the parties, unless they agree to some other arrangement. Travel time in excess of one hour is charged at the hourly rate; travel expenses are billed.

If a party comes to a mediation session without a necessary person, and without having attained the agreement of the other side, that party shall pay the full cost of the scheduled session. If a party postpones or cancels a mediation session with less than two weeks notice, that party shall be liable for the six hour fee for that session.

Teaching & Training

  • Lecturer at numerous seminars and classes on mediation and employment law for Massachusetts Bar Association, American Bar Association, Labor Arbitration Institute, Massachusetts Continuing Legal Education Inc., and area law schools and colleges
  • Northeastern University School of Law – Adjunct Professor – developed and taught course on negotiations for attorneys
  • Franklin Pierce Law Center – Adjunct Professor – developed and taught course on negotiations for attorneys
  • Community Dispute Services Department of American Arbitration Association – served as trainer in negotiation and mediation under contracts with a variety of agencies and institutions, such as the Massachusetts Commission Against Discrimination, Bureau of Special Education Appeals, and district and housing courts