MEDIATION SERVICES

Since 1991, Joan Protess & Associates ("JP&A") has been a recognized provider of mediation services on a nationwide basis. JP&A mediates futures, securities, employment and other commercial matters in person, telephonically and via Zoom.

In mediation, parties resolve their disputes themselves with the help of a mediator. Mediation is a cost effective and expeditious dispute resolution option for parties who are interested in personally controlling the resolution of their case, rather than having an arbitrator, judge or jury decide the matter for them. Likewise, mediation provides parties the opportunity to preserve ongoing business relationships with their adversaries and also facilitates greater flexibility in applying business goals and non-legal practical solutions to the resolution of disputes. Mediation also is a confidential process which allows parties to avoid negative publicity, bad precedents and unpredictable results in arbitration and litigation.

JP&A uses both evaluative and facilitative approaches in mediating disputes. At the outset of the mediation, the mediator conducts a joint conference between the parties and their attorneys. First, the mediator reviews the forum’s mediation ground rules and any specific preconditions agreed to by the parties. Next, the mediator requests that the parties verbally agree not to tape-record any mediation conference; to hold strictly confidential any discussion related to settlement of the mediated matter and not to refer to such settlement discussion in any way during the course of any hearing or trial or in any written submission filed in the case; and not to call the mediator as a witness on their behalf at any hearing or trial, nor subpoena the mediator’s notes and records related to the case, in the event the parties do not resolve the matter.

If the parties agree to the aforementioned ground rules, the mediation is ready to proceed.  During the joint conference, the mediator requests that the attorneys explain their client’s view of the case and the damage calculation and respond to the opposing party’s remarks.  After the attorneys have said everything that they want to say during the joint conference, the mediator confers with each side separately.  During these confidential caucuses with the parties and their counsel, the mediator poses various questions in an effort to obtain a better understanding of the case and the parties’ underlying interests.

In follow-up separate caucus sessions, the mediator offers a neutral evaluation of the strengths and weaknesses of the parties’ respective positions.  The mediator does not urge the parties to settle the case, nor does the mediator suggest that the parties settle the case at a certain amount.  Rather, the mediator points out factors that the parties may wish to consider in deciding whether or not to come to an agreement.

After the mediator and the parties conclude the joint session and the separate caucus sessions, the parties are usually in a position to decide whether they will be able to resolve their dispute.  If requested, the mediator will facilitate any further negotiations to assist the parties in reaching a settlement.

Some parties may want to explore the possibility of settling their case, but may prefer not to participate in a joint mediation conference with the opposing party.  In such instances, the mediator confers with each side separately and acts as an intermediary between the parties in an effort to resolve the case.

 

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