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Posted by David Katz | Apr 03, 2020 | 0 Comments

Coronavirus is currently sweeping across the country. All semblance of normal everyday life, including the Massachusetts court system, has come to a standstill. As of this date, the Massachusetts courts are closed until May 4, 2020, with a few exceptions. To be sure, the May 4th deadline will be further extended for a period of at least 30 to 60 days. Even when the court system begins to get back to its regular schedule it is going to take months to reassign civil cases for hearings, trials, and motions. This logjam will only further exacerbate a court system that is already hampered by severe delay. With that said, options do exist for civil litigants outside of the traditional court system. One possible dispute resolution alternative is called mediation or alternative dispute resolution ("ADR"). 

What is ADR you ask?

 ADR is a process whereby parties voluntarily come together in an informal setting to resolve a dispute. In general, mediation requires the attendance of both the parties and their legal counsel with an agreed-upon mediator. It should be noted that mediation and arbitration are not the same. Mediation is non-binding in most cases whereas arbitration is binding. Once an impartial mediator is selected, the parties will then select an agreed-upon forum for where the dispute resolution will be held.

How do you select a mediator?

In Massachusetts, there are several options to obtain mediation services. Such services are provided by private companies and the Massachusetts court system also has its own list of approved mediators for alternative dispute resolution services. In Massachusetts, court-appointed or connected ADR is governed by the Uniform Rules on Dispute Resolution. The mediators who work within the trial system are vetted by an application process to ensure that they follow both ethical and qualification standards. Each trial court department is responsible for having its own panel of mediators who offer such service to the public for free or non-fee based programs. In the case of court-appointed mediators, such mediations will be done at the respective court from where the mediator is appointed.

In private mediation services, the parties will split the cost of the mediator and any mediation can be done either at the mediator's place of business or at an agreed-upon venue. It goes without saying that whoever is selected as a potential mediator must have, as a condition prerequisite, the necessary knowledge of the subject matter. For example, I recently had a construction mediation matter. The parties agreed to employ a private lawyer/mediator who had experience representing both builders and consumers. The mediator's broad expertise provided the parties with a very substantive and comprehensive mediation experience that ultimately led to a resolution in my client's favor. 

How is mediation conducted?

Generally speaking, once a mediator is selected and a venue is chosen, a hearing will be held. From my experience, it is best to send the mediator a "mediation package" consisting of all relevant documents so that the mediator can familiarize himself with the case prior to the hearing. Once the hearing begins, the mediator will hear briefly from all counsel and then begin the mediation process. This process begins with the mediator going into one room to talk to one party and then going into the next room to talk to the other party. This process has been described as something akin to  "shuttle diplomacy."

At some point, after the initial individual sessions are commenced, the mediator will begin pushing the parties toward a resolution. The mediator then transmits the communications set forth by the party in one room to the party in the next room. During this process, the mediator's goal is to get the parties to resolve the case by pointing out the strengths and weaknesses of each parties' position. At some point, the mediation session will end with a resolution or without a resolution. In the case where the parties cannot reach a resolution, there may be an opportunity to conduct further mediation to explore whether the parties will be more amenable to an ultimate settlement. Every case is different and every mediator has his own style and method. To that end, it is incredibly important, at the outset, that careful attention is given to the mediator selection process.

Is alternative dispute resolution an option in this period of court closures?

The simple answer is yes. Many of the private alternative dispute resolution companies have video conferencing technology available. The practicality of this approach in light of the current circumstances allows the parties to conduct the mediation remotely. If this is the route your company would like to take then you need to make sure that the private mediation service you utilize for dispute resolution has this technology available. Some of the private mediation firms offer video conferencing technology which allows participants in remote locations to simulate a secure virtual joint session hearing room where the attendance of all participants is known to each other. The video hearings and conferences can then be broken out from joint sessions to secure caucus rooms and then go from room to room and back as the case may be just as if you were physically present at the mediation. Once again, if your business selects a private mediation company versus a court-appointed mediator, you will have more technological options available to you.

At the Katz Law Group, we have conducted many, many mediations over the years. We know the good mediators and good mediation services from the not so good mediators and mediation services. ADR is an avenue that should always be considered by litigants whether in a time of national crisis or not. Please feel free to take advantage of our mediation experience by calling 508-480-8202. We are open from 8 a.m. to 8 p.m. every day, including weekends to accommodate our clients' needs during this very difficult time.

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Westborough, Massachusetts...


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