ERISA, including trustee deadlocks
Wage and hour class actions — independent contractor classification, exempt and non-exempt classification, and tips
Higher education tenure
Individual employment agreements
Whistleblower, including Sarbanes-Oxley
Non-competition and non-solicitation
Partnership creation and dissolution
Organizational dynamics — board of directors, executive director, and staff interactions
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. Exactly how the mediation will be conducted will be discussed with the parties in advance of the initial session.
Parties are required to sign and submit the Agreement for Mediation and to pay in advance their respective shares of the minimum fee. 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. Prior to the mediation, the parties are asked to provide whatever information they feel would be helpful for Mark to prepare for the mediation.
To the extent possible, to avoid imposing any additional costs on the parties, we utilize submissions to federal or state anti-discrimination agencies, summary judgment papers, depositions, and previously-prepared papers. 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. 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.
Typically, mediations begin with a joint session at which the procedures to be followed are reviewed and everyone present signs the Agreement for Mediation. The parties’ representatives may elect to present an opening statement if such a statement will further the settlement process, although generally the parties agree to waive such statements.
After the joint session, most of the mediation is usually 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. It is not atypical, however, for successful mediations to take more than one day. It may be necessary to gather and exchange additional information or speak to stakeholders to get their buy-in to a settlement. One of Mark’s most appreciated attributes is his tenacity in staying with a case until a settlement has been achieved. When this settlement is reached, a term sheet is prepared and signed by the parties.