Mediation and conciliation are two of the most common methods of alternative dispute resolution ("ADR"). In each of these voluntary processes, a third party neutral with no stake in the case tries to facilitate a compromise or agreement between parties who are in dispute. The mediator, or conciliator, will spend time with the parties and work with them, and their counsel, to assess each of their goals and help them move towards an agreement that is fair and reasonable and something each of the parties can live with.
Cost can be a deterrent when parties are considering whether to mediate a complex business dispute. Mediation is an excellent opportunity to settle a case in advance of costly trial preparation, but mediation requires parties to pay for both a mediator and their attorneys' time to prepare for and attend the mediation. Are those costs recoverable if mediation is unsuccessful and findings at trial require the losing party to pay the winning party's attorneys' fees and costs? According to recent federal case law in the District of Massachusetts, the answer to that question depends on the basis of the fee-shifting award.
I recently participated in a panel discussion for a mediation course at a local law school. A well-known full time mediator and a U.S. federal magistrate judge who regularly conducts mediations in the federal court were with me. A highly engaged class of law students asked us to address a range of practical questions on the mediation process.
Supreme Judicial Court Rule 1:18 encompasses the Uniform Rules on Dispute Resolution ("Rules"). The Rules govern court-connected dispute resolution services provided in civil and criminal cases in the Commonwealth's trial courts. One of the express purposes of the Rules is to "foster innovation" in the delivery of court-connected dispute resolution services. Conciliation is an alternative dispute resolution process offered in many of the Commonwealth's Probate & Family Courts, and in some District and Superior Courts.
I recently returned from the American Academy of Matrimonial Lawyers Arbitration Training Institute as a Certified Family Law Arbitrator. A few words about family law arbitration: Arbitration falls within the category of alternative dispute resolution ("ADR"). It can be a very helpful tool to resolve family conflict. Contested litigation is the traditional method to resolve legal disputes arising from family law matters, but contested litigation can be a time consuming and expensive process. As a result of the frustration and expense that many have experienced from being engaged in contested family law litigation, there has been a push in recent years to resolve family law matters through various ADR procedures, such as mediation, conciliation, and arbitration.
Settlement conferences in pending divorce and family law cases often result in the parties entering full and final settlement agreements. The parties in such a case appear at an uncontested hearing when they ask the Judge to approve and incorporate their signed agreement into the court's judgment. This settlement procedure takes place in lieu of the parties taking their contested issues to trial, after which the Judge enters a final judgment on behalf of the parties, which is a final resolution of the case not based on an agreement between the parties, but on the Judge's findings of fact and his or her application of the law to such facts, which must be presented to the Judge in accordance with applicable rules of evidence at trial. Trying a case can indeed be a very expensive and time-consuming process.
Picture this: it is a Tuesday morning, at 8:30 a.m., and you arrive at the Probate and Family Court with your attorney to appear for a scheduled hearing on a contested motion that you filed. Once you wait on a long line to get through the metal detectors, you enter the hallway outside the courtroom and your attorney checks the motion calendar list for the Judge assigned to your case. You first learn that your case has been referred to the Probation Department on a different floor of the courthouse for mediation, and your journey through motion practice in the Probate and Family Court begins.
How should counsel and parties prepare for the mediation of a business litigation case? For counsel, the process of mediation requires an entirely different mindset and style than he or she is accustomed to in court proceedings. In fact, a common mistake that inexperienced practitioners make is to prepare for mediation as though it were an adversarial court proceeding. Counsel should resist those natural impulses and instead focus on what the client needs to make the most of the opportunity presented at the mediation - that is, to get a good settlement.
To make it easier for parties who enter written agreements for modification to have such agreements incorporated into enforceable court judgments or orders, Rule 412 has been expanded beyond judgments and orders regarding solely child support, and now include uncontested modifications of other child-related judgments and orders, including those related to custody and medical insurance coverage.
Although a "final judgment of divorce" terminates a legal marriage between spouses, all too often, the parties will remain embroiled in litigation for years to come, particularly with respect to issues surrounding the care and custody of their minor children. Even the most well-drafted parenting plan cannot anticipate and preemptively resolve all of the disputes that inevitably arise when raising children, and the failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters (such as whether Susie can get her ears pierced, if Johnny can sign up for football, and which parent should be responsible for picking up the children on a snow-day) can lead to repeated court appearances and thousands of dollars in legal fees. While child-related issues can always been modified upon a material change in circumstances, and some matters genuinely require the court's intervention, many of these "day to day" disputes can be efficiently and cost-effectively resolved by the appointment of a "Parenting Coordinator" ("PC").
According to the Guidelines for Parenting Coordination developed by the Association of Family and Conciliation Courts Task Force on Parenting Coordination, "[P]arenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
Increasingly the question regarding mediation of a complex business litigation case is not whether but when. Among experienced litigation counsel, there is widespread agreement that mediation should be attempted in many if not most cases. The resources of time and money committed to mediation are usually modest compared to the requisites of full-blown litigation. It is a voluntary and confidential process. Though experiences may vary, I have found that mediation succeeds more times than not in obtaining mutually acceptable settlements. Even if a case does not immediately settle in mediation, both parties are apt to receive significant value in obtaining the assessment of a neutral third party and also in learning more about how the other party (or parties) calculates the risks and rewards of the case.