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Showing posts from September, 2020

Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...
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What if the Debate Were Moderated by a Trained Arbitrator/Mediator?

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  I am guessing like the rest of you, I am still reeling from last night’s presidential debate.    I was so tense during the whole thing that I felt as if I had been through a horrifying experience. How could that have happened?  Trump came in like a bulldozer and just kept stepping on the gas.  Sadly, Biden did not seem to know how to deal with this attack.  As Dana Bash on CNN stated, “It was a shit show!” I couldn’t help imagining how I, with my arbitration/mediation skills, could have moderated the debate, which may have resulted in a very different outcome. State the Rules and Control the Process. In every mediation and arbitration, I remind the parties that it is my job to control the process.  They provide the evidence and information, but when it comes to procedure, I am the boss. So, knowing Trump’s track record, I would have sternly reminded the parties of their prior agreement to the debate format. “You will each have two...
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Why You Should Mediate and/or Arbitrate Your Construction Case

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As a result of the pandemic, the courts have a terrible backlog of cases, and parties who are trying to resolve disputes will wait months, if not years to see a resolution of their cases. The courts in Massachusetts have been doing a fantastic job of handling the issues raised by Covid-19, but there has been an unpreventable delay in processing cases. Mediation and arbitration have always been effective ways of resolving conflicts. Now, more than ever, parties should consider avoiding lawsuits and hiring an independent mediator or arbitrator to bring finality to their disputes.  What is the difference between mediation and arbitration?  Mediation is a voluntary process whereby the parties try to negotiate their dispute with the aid of a third-party neutral. The mediator has received training in trying to facilitate a resolution. The advantages of mediation are numerous. It is a voluntary process and the proceedings are confidential. If the parties arrive at a resoluti...
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