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; and a wide variety of commercial matters, including contract and lease disputes.
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.
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 Mr. Irvings 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.
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.
At the mediation, the parties' representatives are normally asked to present an opening statement, giving both the mediator and the other party their perspective on the case. After opening statements, most of the mediation is 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. 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.
At the conclusion of all types of mediations, if the parties have reached an agreement, a memorandum setting forth the terms will be drafted and signed by the parties.
The mediator's fee is $700 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.
- Numerous Massachusetts Bar Association and American Bar Association programs on mediation and employment law topics
- Massachusetts Commission Against Discrimination/American Arbitration Association Training in Mediation and Arbitration of Discrimination Disputes (1997) – three days of training
- Advanced Mediation Training, Society for Professionals in Dispute Resolution (1997) – two day program
- Massachusetts Office of Dispute Resolution (1992) – two day training for court-annexed mediation
- Massachusetts Bar Association/Boston Municipal Court Mediation Project (1978) – two day training program
- Negotiations and Mediation Training (80 hours), Community Dispute Services Department of American Arbitration Association (1973)
- Graduate Seminar in Mediation, Harvard University, taught by William Simkin, former director of the Federal Mediation and Conciliation Service (Fall, 1970)
- Internship with New Jersey State Board of Mediation and Arbitration (June – August, 1969)
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 (1980-1983) – Adjunct Professor – developed and taught course on negotiations for attorneys
- Franklin Pierce Law Center (1977) – Adjunct Professor – developed and taught course on negotiations for attorneys
- Community Dispute Services Department of American Arbitration Association (1973-1979) – 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