TELEPHONIC MEDIATION

In 1991, Joan Protess & Associates ("JP&A") pioneered the successful use of telephonic mediation. At that time, JP&A became the outside administrator of the fully subsidized mediation program of the National Futures Association ("NFA"). Over the past 30 years, NFA has referred thousands of its arbitration cases to JP&A. Almost all of the NFA cases which JP&A has mediated have been conducted telephonically.

Since 1995, JP&A has mediated successfully hundreds of securities cases filed at the National Association of Securities Dealers, Inc. and the New York Stock Exchange, now known as the Financial Industry Regulatory Authority, or FINRA, using the telephonic mediation process. JP&A also has found telephonic mediation to be an effective method to mediate numerous employment, contract, shareholder, partnership, corporate and other commercial cases filed at the American Arbitration Association and in federal and state courts.

When parties and their attorneys contemplate mediating a case, they first have to consider whether they want to mediate in person, telephonically or via Zoom. Many people think that the best way to resolve a matter is to bring together the parties who have a dispute with one another. However, requiring parties who are in conflict with one another to meet in person at the same location, or even in a virtual conference room, is often not the best way to resolve a case. This is especially true in situations where emotions run high.

Many mediations can be conducted quite effectively over the telephone. This is especially true with respect to investment disputes. The telephone is the common instrumentality by which most investors and their brokers usually communicate. Thus, both sides are normally comfortable using the telephonic mediation format.

Attorneys and parties also report that they feel comfortable using the telephonic process because they can refer to their notes without having the other party or opposing counsel observe them. In addition, by allowing the parties to remain on their own turf, the telephonic mediation process usually makes the parties and attorneys feel at ease.

Telephonic mediation also allows parties to save time and money. By mediating telephonically, the parties avoid incurring travel expenses for themselves, their attorneys and the mediator. Telephonic mediations also generally take less time than in person mediations, which translates into additional cost savings for the parties.

On occasion, some parties and their attorneys use in person mediation to size up their adversary and opposing counsel. Parties who do not want the other side to get a glimpse of them or their witnesses may want to consider mediating telephonically. Telephonic mediation also eliminates the opportunity for the parties or their counsel to offend one another with eye rolling, sighing, or other disruptive behavior, as sometimes occurs during in person mediations.

Perhaps most important, the telephonic mediation process facilitates face-saving, which is frequently crucial to a successful mediation. It is often easier for parties and attorneys to gracefully back away from a “line in the sand” that they may have drawn previously, if the other side is not staring at them across a conference room table while they are trying to save face.

The telephonic mediation process usually involves a joint conference between the parties, their counsel and the mediator. During the joint conference, the mediator reviews the ground rules for the mediation and then the attorneys explain their clients’ respective views of the case and respond to the remarks of their opposing counsel. After the joint conference is completed, the mediator disconnects the conference line and conducts separate telephonic caucus sessions with the parties and their counsel until the case is resolved.