Tag Archives: mediation

mediation - AZ Business Magazine March/April 2012

Mediation becomes trend for resolving business disputes

While mediation used to be a form of alternative dispute resolution (ADR), mediation has become mainstream.

Today, virtually every dispute that is not able to be resolved through direct negotiation is proceeding to mediation. The only questions are at what stage of the process will mediation be held and who will be selected as the mediator.   

When should parties mediate?

More often in business today, mediation can be mandatory, pursuant to a contract that requires mediation before arbitration or a lawsuit is filed, or pursuant to company policy that requires mediation before an administrative charge or suit is filed.    

If the timing of mediation is not mandatory, the parties can choose from various options:     

• Pre-suit. This occurs when one party, typically through counsel, sends a demand letter and suggests private mediation. The main advantage of this is privacy: no public suit is filed than can generate negative publicity or that will remain public information forever.   The other advantage is that resolution can occur before much is expended in legal fees. The disadvantage is that, without formal legal discovery, parties are making decisions that are less than “fully informed.”   However, parties can save literally hundreds of thousands of dollars.

• After suit is filed, before discovery. The privacy advantage is lost, but now the primary advantage becomes avoiding the extensive costs and emotional and lost productivity drain of protracted litigation. The disadvantage is that, as with pre-suit mediation, much information will not be known.

• After discovery, before motions filed. Much of the costs of litigation will have been incurred, but it avoids the costs of filing motions, which can run in excess of $25,000, and it avoids the risk of loss if the court rules against a party on a motion that may dispose of all or part of a case.

• After motion is ruled on. At this point, the parties have given their best pre-trial shot at convincing the judge of the righteousness of their positions, and the outcome is known. The advantage here is to avoid the risks at trial, if trial is still available, or of an appeal, if the judge has dismissed the case.

• Post-trial. Mediation at this point occurs after a highly-undesirable result has occurred at trial and the losing party wishes to avoid paying a huge verdict, and/or wishes to avoid the process, costs and risk of an appeal.

Who should be selected as the mediator?

Selection of a mediator is made easier today by on-line research. Ask your lawyer for a recommendation. Search mediate.com, the American Arbitration Association, National Academy of Distinguished Neutrals, the American College of Civil Trial Mediators, or JAMS, for possible sources of lists of mediators. Mediator searches can be run by geographic location and by subject matter expertise and experience.

In making your selection, consider the following:

• Substantive expertise. Does the mediator have an extensive background in the type of dispute (i.e., real estate, employment, commercial, environmental, personal injury, domestic relations, etc.)?

• Reputation. Is the mediator well-known and well-respected in the legal community?

• Style. Do you prefer a mediator that is more directive, evaluative or facilitative?

• Availability. Is the mediator available within the time frame we need?

• Cost. While relevant, this should be the least important factor. Mediations generally last one day and if you can resolve your conflict in one day, it is a heck of a worthwhile investment.

Amy L. Lieberman is a mediator whose practice concentrates in employment and executive mediation. She is the author of “Mediation Success: Get it Out, Get it Over, Get Back to Business,” available on Amazon.com. She is the executive director of Insight Mediation and has been listed in Best Lawyers in America and Southwest Super Lawyers in ADR for more than a decade.

Commercial Photography

Top litigation attorney launches mediation practice

Paul Roshka, a commercial and securities litigator and founding member of Roshka DeWulf & Patten in Phoenix, has opened a mediation practice focusing on securities and general business matters.

During a career spanning four decades, Roshka has earned a reputation as a top attorney in Arizona. In addition to his work as a litigator, he has represented parties in nearly 200 mediations including disciplinary matters before the Arizona Corporation Commission and the Financial Industry Regulatory Authority in Arizona, Utah, Florida and California. Cases have alleged securities fraud, unsuitable investment recommendations, supervisory deficiencies, churning, breach of contract and breach of fiduciary duties.

“I am truly passionate about resolving disputes through mediation, and often recommend mediation above litigation,” said Roshka. “It is my experience that mediation is an effective method of reconciling issues, no matter how difficult. Plus, it’s considerably faster and less expensive. Both parties have a say in the outcome, and both are spared the courtroom.”

Roshka earned his undergraduate degree from St. Joseph’s University in Philadelphia, and his Juris Doctorate from the University of Connecticut School of Law. He also has attended mediator training at the Straus Institute for Dispute Resolution at Pepperdine University School of Law.

Roshka is consistently recognized for his legal expertise by Super Lawyers, Arizona’s Finest Lawyers and The Best Lawyers in America®, and he has carried an AV Preeminent Rating from Martindale-Hubbell for 20 years.

To learn more about Roshka and firm services, visit www.rdp-law.com.

Dayton, Matt

Tiffany & Bosco Expands Financial Services Practice

The law firm of Tiffany & Bosco P.A. announced that Matthew D. Dayton has joined the firm’s Las Vegas Office as an associate in the firm’s national financial services practice. His practice focuses primarily on real estate, foreclosure mediation/arbitration, unlawful detainer, and bankruptcy and creditor’s rights.

Matthew is admitted to practice before the United States District Court for the Districts of Nevada and Utah.  Matthew is a member of the Southern Nevada Association of Bankruptcy Attorneys and is a committee co-chair of the newly formed Nevada Creditor Association. He received his J.D.in 2009 from the William S. Boyd School of Law – University of Nevada, Las Vegas, and his B.A. from Brigham Young University.

Mark S. Bosco, Shareholder and head of the firm’s financial services practice stated, “Matthew is a very talented and hardworking attorney, and we are pleased he has joined our firm’s national financial services practice. He will join our team in serving many of our banking and real estate clients throughout Las Vegas and Utah.

Dayton, Matt

Tiffany & Bosco Expands Financial Services Practice

The law firm of Tiffany & Bosco P.A. announced that Matthew D. Dayton has joined the firm’s Las Vegas Office as an associate in the firm’s national financial services practice. His practice focuses primarily on real estate, foreclosure mediation/arbitration, unlawful detainer, and bankruptcy and creditor’s rights.

Matthew is admitted to practice before the United States District Court for the Districts of Nevada and Utah.  Matthew is a member of the Southern Nevada Association of Bankruptcy Attorneys and is a committee co-chair of the newly formed Nevada Creditor Association. He received his J.D.in 2009 from the William S. Boyd School of Law – University of Nevada, Las Vegas, and his B.A. from Brigham Young University.

Mark S. Bosco, Shareholder and head of the firm’s financial services practice stated, “Matthew is a very talented and hardworking attorney, and we are pleased he has joined our firm’s national financial services practice. He will join our team in serving many of our banking and real estate clients throughout Las Vegas and Utah.

legal

Jennings, Haug & Cunningham attorneys earn honors

Eight attorneys from Jennings, Haug & Cunningham were named to The Best Lawyers in America 2013 list, a peer-review ranking publication for the legal profession, in the areas of Construction Law, Construction Litigation, Environmental Law, Personal Injury Defense, Arbitration, and Mediation.  In addition, the firm was again recognized with top honors, being named a 2013 Best Law Firm in America by the same survey.

The firm’s Best Lawyers in America include:

* Mark E. Barker was recognized for the fifth consecutive year for his work in construction law, and construction litigation.

* James Csontos was recognized for the third consecutive year for his practice in construction law, and construction litigation.

* Jack Cunningham was recognized for the first time this year, for his work as defense counsel in personal injury litigation.

* Karen Gaylord was named to the list for the fifth consecutive year for her work in environmental law.

* William F. Haug, was recognized for the sixth consecutive year for his practice in construction law, construction litigation, mediation and arbitration.

* D. Kim Lough was recognized for the sixth consecutive year in construction law, and construction litigation.

* Edward Rubacha was recognized for the second consecutive for his work in construction law, and construction litigation.

* Chad Schexnayder was named to the list for the third consecutive year in construction litigation.

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.

mediation - AZ Business Magazine March/April 2012

The ABC’s Of Mediation

Alternative dispute resolution can be a cost-effective way to resolve legal issues

From a business perspective, mediation makes sense as a strategic tool to reduce risk. You receive a great return on your investment of a relatively small amount of both time and money.

For those of you who might be new to legal disputes or serious conflict, here are the ABC’s of mediation.

WHAT DO MEDIATORS DO?

Mediators are typically lawyers, ex-judges or in some instances non-lawyers who are trained, skilled and experienced in helping people resolve conflict. The mediator helps each person to explore various aspects of the conflict, to be open to new information, and to consider possible resolutions that may not have been considered before.

The mediator works to reach a resolution that works for all involved. Discussions occur in joint or separate session, or both. What the mediator thinks a reasonable resolution should be may or may not have any bearing on the outcome. His or her opinion is just one of many factors that are considered in evaluating whether, and how, to resolve a dispute.

When the goal is reached of resolving the conflict in a way that works for all parties, the mediator documents the agreement so that it is a binding settlement, or a commitment to future action in the workplace.

WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

Mediation is a structured, confidential process where people in conflict seek to resolve their differences with the help of a neutral third party (the mediator) who facilitates a resolution that both parties agree to. In mediation, the parties make the final decision. Company representatives, including management representatives and/or human resources professionals typically attend on behalf of the business.

The outcome is a written agreement, which becomes a legally binding resolution. It is generally referred to as a “Settlement Agreement,” or a “Settlement Agreement and Release,” because it releases all claims against the company.

Mediation can typically be completed in a day-long session, although occasionally, some follow-up is needed.

Mediation is voluntary, in the truest sense of the word. That’s because no solution is imposed on anyone. It’s what the parties believe is fair, or workable, that controls. If the parties to the conflict do not agree, there is no resolution, and they can continue with any other avenues of redress available to them, such as proceeding in court, or pursuing other formal grievance processes.

Arbitration is a more formal, legalistic process. It is just like court, only a hearing (vs. a “trial”) is held in a private conference room. The Arbitrator is a typically a lawyer who acts as privately-retained judge. Opening and closing statements are given, exhibits are formally introduced, and witnesses give testimony under oath.

After the hearing, which can last anywhere from a few days to a few weeks, the Arbitrator renders a written, binding decision.

WHEN SHOULD YOU USE A MEDIATOR?

Consider using a mediator in three instances:
• Litigation has been filed. You’ve been sued, and it’s going to take years and likely cost well over $100,000 to get to trial. Funds put towards the fight could be better spent on resolution.
• Litigation has been threatened. If you’ve tried, but you have been unable to resolve a dispute informally between yourself and the other party, offer to bring in a mediator, for the same reasons.
• You have serious conflict between valuable employees. If your company’s productivity and the bottom line are being seriously impacted by workplace tension, bring in a mediator to help the parties work through the conflict.

Amy Lieberman is a mediator, arbitrator and the Executive Director of Insight Employment Mediation, based in Scottsdale. Her forthcoming book is titled, “Mediation Success: Get it Out, Get it Over and Get Back to Business.”

Arizona Business Magazine March/April 2012