News

January 17, 2017

Top Causes of Business Disputes

Dan Murphy of the Massachusetts based Murphy Law Group discusses the top causes of business disputes, how business partnerships end, and how an attorney or mediator can end a business dispute amicably rather than in litigation.

John Maher: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today, we’re talking about causes of business disputes. Welcome, Dan.

Dan Murphy: Thanks for having me, John.

Major Causes of Business Disputes

John: Sure. So Dan, what are the causes of most business disputes?

Dan: Simply put, generally, something’s gone wrong in the eyes of one of the parties. That’s very much a general answer, but generally that is the way in which business disputes arise. One party is disappointed in the behavior or the delivery of services, or products by the other party.

John: Okay, and how can business disputes like that be avoided?

Dan: Business to business, it’s important that from the outset expectations are drawn. And expectations need to be laid out, whether they be in a formal contract or certainly in writings between the parties that may ultimately be interpreted as a contract.

It’s important for both parties to establish what their expectations are of the other party, and for each to communicate what their expectations are and to make sure that there’s an understanding on both sides what the expectations are.

Having a Business Dispute Without Going to Court

John: Other than just having a well written contract, is there a way that you can avoid going to a trial?

Dan: Right, I mean business disputes, typically when you’re dealing with two parties that at one point in time felt as though it was to each of their respective advantages to enter into a relationship, or into a contract with the [other] party, that means that there’s something that they have in common that you ought to try to get back to in order to resolve the dispute rather than allow it to continue and to simply do harm both parties.

Most business disputes, where you have responsible businesses who initially decided to engage in business with each other and if they’ve got responsible council as well, can be resolved without going through a lengthy litigation.

John: And what’s the process of doing that?

Dan: It’s difficult to pigeonhole any particular business dispute, because they’re all different, and the response is different. Sometimes you don’t have responsible parties on both sides. Sometimes you have one party that has just said that they’re going to refuse to perform according to the contract, and the party that has been hurt by that has no other way to pursue it than to file suit. That is an extreme situation where litigation will take its course and ultimately a judge or jury will resolve the case.

On the other hand, if both parties think that they are acting reasonably and acting according to what the expectations were that were drawn out initially, whether it be in a written contract or otherwise, then there’s probably a gray area that needs to be worked through between the parties. Oftentimes, counsel can do that and if you need to bring in a third party then mediation is appropriate. Bringing a third party in with fresh eyes who can listen to each side, and each side give their respective views on what occurred, having a mediator weigh in on it, and pushing each side toward resolution is often an effective way of resolving a business dispute.

Business Disputes and Meditation

John: Is a mediator’s role in that case to do what you said, which is to try to get both parties to remember their reasons for having this contract or this agreement to begin with? They had some reason to work together at the beginning of their relationship, and does the mediator just try to get them back to that place where they can come to an agreement again?

Dan: The beauty of mediation is that a mediator can either take that tact or take a tact of saying, “Okay, how do we now efficiently disengage? So the two of you can’t move forward to do what you initially wanted to do because of one factor or another. One party feels aggrieved. How do we recognize that that party has been aggrieved? And if that party has been aggrieved, how can we compensate that party and how can we stop the damage from continuing, and potentially how do we simply disengage and have, if you will, a business divorce?

John: Are there any other ways that a business dispute should be handled, especially if it’s already in progress and you’re just coming into the middle of it?

Dan: Well, I can tell you that I’ve been in front of a number of judges for business disputes, and one of the best judges I ever was in front of was a federal judge who pulled the parties together and said basically that — on the eve of trial, listened to what the respective views of each of the parties were and said, “Shame on both of you because you’re now going to throw this into the hands of me or, if it wasn’t me, to a jury when you had the ability to control the outcome from the time you commenced this litigation until now. Instead, each of you have spent a considerable amount of money to get here. Neither of you are sure of what the outcome will be and one of you will clearly be very disappointed in the outcome, only to have the other very disappointed when the party that loses files an appeal, and we realize that the case still hasn’t come to an end.”

John: Right. It’s just going to drag on for years.

Dan: Drag on for years, take on a life of itself, and is not healthy for either of the businesses.

John: All right. That’s really great information, Dan. Thanks again for speaking with me today.

Dan: Thank you, John.

John: And for information about the Murphy Law Group, visit the firm’s website at www.mlgllc.com, or call 978-686-3200.

 

December 20, 2016

The Role of a Civil Litigation Attorney

Civil litigation attorney Dan Murphy of the Murphy Law Group describes what civil litigation is like and attorney does during and before trial to help their client get the best outcome. What can a civil litigation attorney do for you?

John: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today, we’re talking about civil litigation. Welcome Dan.

Dan: Hey John, thanks for having me.

John: Sure. Dan, tell me a little about civil litigation. What is that?

Dan: John, broadly defined civil litigation is basically any type of litigation matter that is not a criminal matter. Criminal matters are separate than civil litigation but civil litigation is a broad term that encompasses all types of cases ranging from business disputes to individual, personal injury disputes as an example.

John: What are some of the most common types of civil litigation matters that you see?

Dan: Well from an individual’s perspective, anytime an individual is harmed, it may bring in the possibility of a civil litigation. Whether it’d be a harm suffered by a trip and fall, by an automobile accident, or by a breach of contract–that will all be encompassed within civil litigation.

John: As a civil litigation attorney, what’s your approach to handling those types of cases?

Dan: Well, you’re always looking to find the best outcome for your client. Which means that at the outset of a case when you’re brought into a case, whether it’d be because your client has been sued or because your client has been damaged in some way, to do a complete evaluation of the case early on. It’s important to evaluate the case, evaluate the strengths and weaknesses of a case, and evaluate what needs to be done in order to completely understand your client’s standing in the case, whether it’d be continued investigation or whether it’d be a dialog with the other side.

It’s important that the outset of the case to do as much as you can so that you can counsel your client as to what they can expect in the potential litigation.

John: What kind of steps do you take when you’re doing an investigation in looking into the case for the first time? What are the steps that you take?

Dan: For example for the breach of contract claim, if someone’s claiming that your client had in some way breached their obligations under a contract, you would want to see exactly what the allegation is to what the breach is, you’d want to see what evidence the other side has to date to show the breach. You’d want to talk to your client about the allegation as to what their defense is, or potential defenses are. You’d want to evaluate what the possible damages would be.

John: What’s the next step after you’ve done the investigation?

Dan: Again, depending upon whether or not you’re on the defense side or on the plaintiff side. If you’re on the plaintiff side as an example and it’s a personal injury matter: you’ve looked, and your client was injured by a trip and fall. You’d want to look and you’d want to see where the trip and fall occurred. You’d want to take pictures of it. You’d want to make sure that you did what was necessary to preserve what might be necessary down the road, to show that there was negligence on the part of the defendant. That will be all be important to establish causation.

Then beyond causation, you would want to be able to show that there’s a nexus between the causation and the injury suffered by your client. You’d have to make sure that you did what was necessary to preserve whatever medical evidence is out there, medical records, so forth and so on. You’d encourage your client to take whatever steps is necessary to get better, and to take care of their own health. That would be the outset of a personal injury case as an example.

On the business side, if I use the example of your client being charged with a breach–if for example your client has been damaged because someone else has breached the contract, you would want again gather all of the evidence that you had in order to support that. You’d want to put together probably at the outset a demand letter that would be sent to the other side outlining your case and making an aggressive demand on behalf of your client.

John: At what point should an attorney be hired after a dispute between two parties becomes apparent?

Dan: As early as possible. The longer you wait, chances are the more that you’re opening yourself to exposure. You want to minimize exposure. You want to make sure you hire an attorney who’s looking to minimize your exposure on the defense side. On the plaintiff side, you’re looking at someone who is going to want to maximize your recovery. The earlier you bring someone on, the better chances that they’re going to do the kinds of things that I discussed in terms of preserving the evidence and mounting the things that will be necessary ultimately to prove your case.

John: What do you think that the role of a civil litigation attorney is during the case and what the most benefit is that somebody gets by having an attorney?

Dan: The best attorneys that I have been against have been attorneys who have worked diligently to find an outcome for their client, to maximize the outcome for their client. That’s the absolute truth. I would rather have an attorney on the other side who is a good attorney, who’s working to maximize the benefit to their client, than to have somebody who really isn’t paying attention to what’s going on. If you get two good attorneys in the case, who do the proper evaluation of a case and looked toward resolution in a most efficient way for their clients, you’re going to find a way to resolve a case.

What’s most important there are two things. One, for the attorney to completely evaluate the case, be on top of the case. Two, to have a real line of communications open with the client, so that the client understands everything that’s going on. The client understands when the attorney makes a recommendation as to resolution of a case because they feel as though they found some good leverage to use, to reach that resolution that the client is on board with that.

They’re not looking just to fight the fight, because looking to fight the fight is going to do nothing other than cost a lot of money down the road. The longer you go into a litigation, the more difficult it is to resolve litigation.

John: All right. That’s really great information Dan. Thanks again for speaking with me today.

Dan: Thank you John.

John: For more information, visit the firm’s website at mlgllc.com or call 978-686-3200.

December 13, 2016

The Difference between Mediation, Arbitration, & Litigation

Dan Murphy of Murphy Law Group explains the differences between mediation, arbitration, and litigation—how each one handles legal complaints, how you might enter into arbitration, and how judgements are reached in each.

John: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston Massachusetts. Today we’re talking about the differences between mediation, arbitration, and litigation. Welcome Dan.

Dan: Thanks for me having me, John.

John: Sure. Dan how are mediation, arbitration, and litigation different?

Dan: Mediation and arbitration are both forms of alternative dispute resolution mechanisms. Both of them are alternatives to what you might know as a simple court case in terms of a case that that takes the form of a complaint being filed in one of the public courthouses–whether it would be on the state level, at the district court level, superior court level, or in the federal courthouse.

John: Okay. Let’s talk then about mediation and arbitration. How are do those differ?

Dan: They differ significantly. Arbitration is in a lot of respects nothing other than hiring a private judge or panel of judges to make decisions in a case. Arbitration is not an attempt by the parties to seek common ground to resolve a case. It is really bringing your case before either a panel or a single arbiter, similar to the way in which you would bring it before a judge or a jury and hiring those people to make a determination.

Oftentimes, arbitrations are agreed to as a mechanism to resolve a case prior to parties having the dispute. In other words, if the dispute is a commercial dispute and the parties were contractually bound prior to the dispute arising and the contract has a mandatory arbitration clause that would be the manner by which the parties would resolve the case as opposed to litigation.

It does not mean that the parties could not also utilize mediation to resolve the case. It would be simply that they contractually agreed that the case would be resolved from a finder of fact perspective by arbitrators versus a judge or jury.

John: Why would two parties want to go through an arbitration rather than do a litigation and have that being in a court of law that determines this? Is this less costly?

Dan: The thinking is efficiency. But the reality is that is not always the case. Sometimes arbitrations take on a life of their own just the way litigations do. But the thinking is efficiency. The thinking is, well, you’re subjecting the parties to arbitration and you’re subjecting your parties to a third-party making a decision. There is a little more control over the process in arbitration versus litigation.

In litigation there are civil rules of litigation that allow you of periods of time during which to conduct a discovery–whether it’d be written discovery followed by a formal deposition practice. And they can be extremely lengthy in time. But that just as an example, in arbitration the arbitrator may well decide that each of the parties has 60 days to exchange a written discovery, the tracking order in a typical litigation case in court might be nine months to get that done.

The arbitrators could decide, as an example, that each side is limited to taking three depositions. In standard litigation in court under the rules of civil procedure there is no limitation on the amount of depositions that one party could take.

John: You mentioned that there can be like an arbitration clause in a contract that would result–if there’s a dispute that you go to arbitration. Can you have a mediation clause and an arbitration clause in the same contract? Then when would you do one versus the other?

Dan: You absolutely can. Typically if you have a mediation clause in a contract, it would precede the triggering of an arbitration. The parties would be committed to attempting to resolve the case in the mediation context prior to moving to the next step which is arbitration. Even once you have entered the step of arbitration you can always move back into mediation again, if the parties believe that it would be helpful to have a third-party attempt to bring each of the parties together, to find common ground.

John: Is there ever a point then at which you can go from an arbitration to litigation? Or just the fact that you’re deciding to use arbitration as a method of resolving the dispute mean that it ends there.

Dan: Typically once you’ve committed to arbitration, you’re committed to arbitration; it’s outside of litigation. There are always exceptions to the rule: if some type of a conflict came up with an arbitrator along the road or if something were added to the dispute that might for some reason to take it out of arbitration.

But typically once you’ve committed to arbitration you’re committed to arbitration. Once you’re committed to litigation in the courts you are committed to litigation in the courts. But in both instances that does not mean that you could not fall back to mediation at any given time.

John: When do you think that using litigation might be a more appropriate method of resolving a dispute?

Dan: Well, litigation is the standard way to resolve a dispute. It takes the parties agreeing, whether it would be before entering into a contract or before filing a lawsuit that arbitration would be an alternative method that they would look to. But the standard method would be litigation.

Sometimes there’s a dialogue between the parties before a litigation starts. Other times there is no dialogue between the parties before a litigation starts. Litigation is the standard approach with arbitration being an alternative approach–one that you may be bound to because you’ve done so contractually before the dispute ever arises or one that the parties agreed to procedurally as a way in which to approach the dispute.

John: Okay. Any final thoughts on mediation, arbitration, and litigation and how they work to resolve disputes between parties.

Dan: Well, mediation is always appropriate. As I said the idea of a mediation is to bring smart people together on each side of a case with a third party who can evaluate the case properly, and can talk to each side about the strengths and weaknesses of the case to make each side recognize that if they go forward and lose control over the case, some other party being a jury or a judge or an arbitrator is going to make a decision.

They’ve got no control over the outcome of that decision and that they’re much better off trying to find a way to be satisfied with a resolution of the case in the context to the mediation than they are completely losing control and giving it to a third party whether it be an arbiter or judge or jury.

John: Alright that’s great information Dan. Thanks again for speaking with me today.

Dan: Thank you John.

John: For more information about the Murphy Law Group, visit the firm’s website at mlgllc.com or call 978-686-3200.

December 6, 2016

The Steps in a Civil Litigation Case

Dan Murphy of Murphy Law Group describes the steps in a civil litigation case: what happens immediately after you file a claim, what the discovery process is like, and how a case moves to trial. He explains why sometimes cases don’t end in a jury verdict.

John Maher: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today we’re talking about the steps in a civil litigation case. Welcome, Dan.

Dan Murphy: Thanks for having me, John.

John: Sure. Dan, once a case has been filed, can you walk me through what occurs in a civil litigation case after that?

Dan: Sure. If you are the plaintiff, you’re in charge in terms of getting the case started. You filed the complaint, the complaint has been filed, and now the next thing you’re doing is waiting for a response from the defendant or defendants and that can take the form of simply an answer to a complaint or can take the form of a motion to dismiss.

It can also include, when you’re talking about an answer, it can include various affirmative defenses that are raised as well, but the next step after a complaint has been filed and has been served is for the defendant to respond to the complaint.

John: Can you tell me a little bit more about that? What are the options that a defendant has in terms of responding to the complaint?

Dan: It depends. It can range from raising jurisdictional defenses, as an example, saying that the defendant is not subject to the jurisdiction of the case, to the county or the jurisdiction in which the case was brought in and seek to dismiss the case on those grounds.

The defendant could state that the plaintiff simply failed to state a case upon which relief can be granted, which is a 12(b)(6) motion to dismiss, or the defendant might just, as I said, simply answer and deny the allegations in the complaint. The plaintiff would then play off of that, obviously. If the defendant moved to dismiss, then the plaintiff would need to meet the arguments that were raised by the defendant in the motion to dismiss and that would be the next step.

John: Can you explain that then: what is the next step then after you’ve responded to the complaint?

Dan: Once the defendant has responded to the complaint, as an example, it’s going to go on one of two directions. One, if the defendant has simply responded by answering the complaint and raising affirmative defenses but has not filed a motion to dismiss, then the case moves to discovery. If the defendant has filed a motion to dismiss, then the plaintiff will have to file responsive pleadings and the court would in all likelihood have a hearing on the defendant’s motion.

John: Explain “discovery” a little bit more and what that is?

Dan: Sure. Once you get beyond the initial complaint response, whether it be by answer or by pleading, you go into the discovery phase. The discovery phase is the most lengthy and most expensive phase of any litigation with the possible exception of the ultimate trial of the case. The discovery phase means an exchange of written questions, which are in the form of interrogatories.

They’re in the form of document requests to each side that each side would in all likelihood exchange. And then once you move from the written discovery, you move to the phase of discovery that in and of itself is probably the most expensive, which is the deposition phase of discovery, where you actually take testimony of witnesses under oath–which takes a fair amount of preparation on both sides, both preparing the witness and for the person who’s taking the deposition to prepare for the deposition in itself.

John: Are both sides, the plaintiff and the defendant, involved in that deposition of witnesses?

Dan: Yes, both sides are involved in the written discovery as well as the deposition process, and there are other things. There are things called “the request for admissions” that could possibly occur during the written phase or could occur during the deposition time period. There are various avenues that the attorneys have the opportunity to go down and various approaches that they can take in order to address this fact-finding part of the case, which is called “discovery.”

John: Okay. Then what comes next after discovery as part of the civil litigation steps?

Dan: Generally, there’s a flurry of potential motions toward trying to resolve some or all of the issues as a matter of law prior to going to trial. There’s a period of time during which, as an example, the defendant can say the plaintiff has now had an opportunity to take all the discovery necessary and it doesn’t have the facts to support the allegations in the complaint and therefore the complaint should be dismissed as a matter of law, or judgment should enter for the defendant as a matter of law.

That typically happens at the end of discovery, it’s called “a motion for summary judgment” and that could be on the entire case or it could be on various aspects of the case. For example, if there are several counts, say, there are five counts that the defendant may take the position that the plaintiff has failed to establish what was necessary on counts one, two, and three, and therefore those counts should be dismissed.

John: This is not in trial yet, so is it just a judge who is making that determination? That it doesn’t seem like one side has enough grounds to continue on with the case at that point?

Dan: Yes, it is a judgment as a matter of law based upon facts that are not in dispute. The judge cannot make a determination for one side or another if there are genuine facts in dispute, because those genuine facts that are in dispute are to be left for the fact-finder–whether it be ultimately a jury, or if it were a jury waived trial, it would be by a judge, after testimony before the judge.

John: There’s no opinions involved here, it’s just purely on the facts?

Dan: It’s strictly an opinion as a matter of law. It’s a judge applying the law to the circumstances upon the facts that are not in dispute. The judge then makes a determination that the facts that are not in dispute as applied to the law are insufficient for the plaintiff to move forward. Therefore, the plaintiff loses as a matter of law, as an example.

John: Okay. Then what’s next after that if it’s determined that we’re going to keep continue to move forward with this?

Dan: Well, if everything can’t be determined as a matter of law, then it goes to the fact-finder, which is either the jury or in the case of a jury waived trial, the judge. That would be the trial phase.

John: Then is the trial phase the end of a civil litigation case?

Dan: Yes, that’s the biggest misnomer out there. That is that you think you’re moving toward a final resolution to finally put the case behind you. A jury comes back with a verdict, one way or the other, and that’s it. Unfortunately, that’s not the case. There’s always the appeal phase. And if the aggrieved party, in other words the party against which a judgment was rendered, determines that they have an issue that they need to appeal, the Appeals Court will hear that. If the Appeals Court agrees with them, the Appeals Court could remand the case back to trial, and you’re basically starting all over again.

John: Okay. Can you to talk a little bit about settlements and how settlements are determined?

Dan: Well, settlement is something that your civil litigator should always be looking forward [for] you. Always want to be looking toward a resolution of a case, and I mean that from the very beginning to the very end. There are various points where it’s obvious that the resolution should be sought but, as I think I mentioned to you before, good lawyers on both sides will always look toward resolving a case for their client.

The longer you go into a case, the more difficult it is to resolve. Just take as an example: there’s a, say, a $300,000 dispute. Well, yes, at the beginning of a case before you, when you’ve only spent a few thousand dollars to evaluate the case, there’s a lot of room between 0 and $300,000 to get a case resolved. Down the road after spending a hundred, each side spends a $100,000 on a case, it becomes much more difficult to resolve that $300,000 case because each side has up the ante by a $100,000.

John: Okay, yes. All right, well, that’s really great information, Dan. Thanks again for speaking with me today.

Dan: Thank you.

John: For more information about the Murphy Law Group, visit the firm’s website at mlgllc.com or call 978-686-3200.

November 29, 2016

What is Mediation?

Dan Murphy of the Murphy Law Group answers your questions about mediation. What is mediation? Why do disputing parties seek it out? How can it solve legal matters without going to trial?

John Maher: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today we’re talking about mediation. Welcome, Dan.

Dan Murphy: Thanks for having me, John.

John: Sure. Dan, can you define mediation for me?

Dan: Mediation is really nothing other than structured settlement negotiation.

John: Okay. How does that differ from arbitration?

Dan: Mediation means that there are no decisions being made by the mediator. The mediator is simply acting as a person who can attempt to bring each side together by evaluating the case, evaluating the strengths and weaknesses of each of the respective parties’ positions, and advising each party as to those strengths and weaknesses, and trying to pull each side a little more toward the center to have a meeting of the minds to resolve the outstanding dispute.

John: How does a matter get to mediation?

Dan: A matter can get to mediation in any number of ways. In the business contracts that we formulate now, we generally put in a mandatory mediation clause so that if a party has a mandatory mediation clause in a contract, for example, that is in dispute, before such time as they can file a lawsuit, they have to subject themselves to mediation and make a good faith attempt to resolve the case.

John: That might prevent a matter from having to go all the way to trial?

Dan: Certainly. In that example, it would require the parties to sit down and to evaluate their positions before they went into a full-fledged litigation.

John: When is mediation appropriate?

Dan: Mediation can be appropriate at any time during a dispute resolution process, whether it be a pre-litigation, or in the middle of litigation, or even on the eve of trial. Mediation can always be an effective way to resolve a case. It’s a tool that more and more practitioners are using because it’s an effective way to resolve a case far more efficiently than going through the entire process of litigation.

Even when you’re in the middle of a litigation, you’re in the middle of trial, there are cases that are mediated to resolution at that time because even in the middle of trial, you’re not at the end. Even when you get to a verdict, there’s an appeal and the process goes on and on. Mediation, the idea is to find a resolution that maybe neither party is completely happy with but both parties are satisfied with.

John: Okay. Do you find that mediation is more successful or less successful, at the beginning or at the end of a procedure?

Dan: No. There’s no absolutes with respect to mediation, it is from an efficiency perspective. If the parties can fully evaluate their cases early on and have developed their respective positions to a satisfactory degree so that they can bring their matter to a mediator, a mediator can evaluate where the case is and where it’s likely to go. The earlier you get to mediation, the better it is because the earlier you get to mediation the more efficient then it is for your client in terms of finding a resolution to the case.

John: Are there times when mediation would not be appropriate for two parties who are in dispute?

Dan: The time when it’s inappropriate is really when both sides are just completely entrenched in their positions and there is no moving off their position. Often times you hear that principle is an expensive virtue, and that’s typically where parties get stuck. It is that one party says, “No, I’m not moving on grounds of principle,” and the other side may say the same, rather than putting themselves in the shoes of the opposing party and trying to see it from their perspective. Also, looking at it from the likelihood of success from your own perspective and recognizing that there is always a chance that if the case is going to trial, there’s a chance that you’re going to lose. There’s no case that’s a 100%.

John: Who acts as a mediator, and how do you pick one?

Dan: There are various people who are very effective mediators. There are some that are more specialized in one area than another. As an example, there some who specialize in personal injury, there are some that specialize in business disputes. There are former judges out there who spent time, as an example, in the business courts, who may be particularly adept at dealing with a given issue. There are all kinds of people who are very effective that work very hard at resolving cases and can bring parties toward resolution.

John: Does a mediator need to be an attorney who obviously has a handle on the law, and where the case might go, and have a really deep understanding of the laws involved in that dispute?

Dan: I have never used anyone but an attorney. Well, lay people may be able to evaluate disputes that are fact-driven only, without looking very much toward the law. I can’t think of very many situations involving parties who have a dispute where it would be appropriate to bring somebody other than an attorney. You need someone who is going to be able to talk about not only the likelihood of success but the process involved, the cost to each side–someone who’s been in the trenches before, who understands all that, and who can speak to those specifics. It’s critical that they have the appropriate training to be able to play that role.

John: Okay. Can you walk me through the steps of a mediation, what does it look like?

Dan: There are no real steps to a mediation. Let me start by saying that before going to mediation, both sides have to be satisfied that they understand their positions pretty well and that they understand the other side’s positions pretty well. There should be some type of an exchange whether it be a demand letter and a response to a demand letter, or further down the road whether it be in the middle of discovery or just prior to trial.

The parties get to a point where they say, “Okay, let’s see if we can find a way to resolve it.” It may be that they have attempted to resolve the case on their own and that there’s still a gap that they need to close, or it might be that there’s this general sense that both sides want to employ a professional third-party to help them see whether or not they can find common ground and then you go to a day of mediation. Prior to that, you pick a mediator who’s appropriate. Generally speaking, if the attorney on each side throws out a handful of names, there’s usually a common name or a common business that conducts mediations that can be agreed upon.

You go to mediation, you go that day, all of the parties gather in a single conference room. The mediator starts the day by introducing the parties to the mediation process, by telling them that the idea is to seek a resolution to the case that day, by telling them that everything during the mediation that is confidential will be kept confidential, that it’s a confidential process, that if there are offers made during that mediation, those offers are completely confidential and are not to be discussed outside of the mediation.

Then the mediator will ask each side to lay out what their position is, and there is generally a brief time where the lawyers on each side will lay out in a succinct form their positions on the case, and the mediator will ask whether or not there’s been any offers or responses to offers. Once the parties respond to that question, the mediator will take one party out of the room and from there on the mediator will work with each of the parties independently to see if they can work to bridge the gaps to reach a resolution of the case.

John: They might go to one party and come to an agreement about what they want to see as the resolution to the case and what they are willing to give in order to get that resolution and they’re going to take that over to the other party and find out what it is that they want and try to match those two things up together?

Dan: Yes, the idea is to bridge the gap. The idea is if the mediator goes into one room and talks to the party about their position and the mediator has evaluated the case and said, “You know what, I understand your position entirely but one of the things you may have to do is to consider not only A but consider B, because B could happen and if B happens, then the result is going to be different than the absolute outcome that you’re looking for. You have to be willing to move off of A toward B,” and on the other end, you’re talking to the parties on the other end, and you’re doing the same thing. You’re trying to get them to move off of their position by recognizing that while they come with an absolute position, that they have to recognize that may not be where the case ultimately resolves by a finer fact and that they need to take into account the possibilities of another outcome when evaluating the resolution of the case because there’s one thing that’s certain, and that is in a mediation context, the parties have control over the outcome. That’s not the case at trial.

At the trial, you have a verdict, and the verdict goes one way or the other, and the parties have no role in what occurs in that jury room. Whereas in mediation, you’ve got complete control over the day, you can be as creative as you want, you can do all that is necessary to explore, you can ask the mediator, ask questions of the other side. There’re any number of things, but you’ve remained in control of your case during that mediation.

John: What is the ultimate result of a mediation? You end up with a resolution of some kind?

Dan: That’s the idea. I would say, over 90% of the cases that I’ve been involved in, that I’ve taken to mediation have resolved. It’s rare that a case does not resolve when you have a good mediator, and you have effective counsel on both sides because just going to mediation suggests that the parties are ready to look toward resolving the case, rather than just throwing money at litigation and taking chances, because litigation is a gamble.

At the end of the day, you’re gambling with people who have no investment in the outcome of your case. You’ve got everything involved in the investment of the outcome of your case, whether it’d be your business or it be your health that has been affected by why you’re in the dispute in the first place. You’re there trying to reach a resolution and find the best outcome you can have while being in control of that outcome because once it goes to a jury, you’re no longer in control of anything.

John: Explain again the resolution–is it binding? How do the parties then follow that resolution after the end of the mediation?

Dan: Yes. When you say, “is it binding?” it’s binding because the parties have come to an agreement. At the end of the day, a mediator will have you sign a term sheet. The term sheet will contain the necessary terms to show that there’s been a meeting of the minds and that the case has been resolved.

John: Kind of like a contract that you’d be signing?

Dan: Yes. It will typically say, that this will be followed up by a more formal contract, but this is what the parties have agreed to in the mediation. Again, 99% of the time that term sheet will carry over, and the case will be resolved.

John: All right. That’s really great information, Dan. Thanks again for speaking with me today.

Dan: Thank you, John.

John: For more information about the Murphy Law Group, visit the firm’s website at mlgllc.com or call 978-686-3200.