June 5, 2023

The pre-mediation statement gives each party an opportunity to present background information on the dispute and advise the mediator of its respective position. It also allows you to share your client’s position on the facts and the law with the other party so that all participants gain a comprehensive understanding of the parties positions and goals before the mediation begins.

A Pre-Mediation Statement typically has six parts:

1. Background of the dispute
2. A summary of the facts
3. A narrative of the party’s legal position
4. A recitation of settlement negotiations
5. A description of the settlement position
6. Attachments of strong evidence as exhibits

The parties may consent to disclose their statements to the other party prior to the scheduled mediation, or the statements can be confidential and only seen by the mediator. As will be explained in a future post, often the parties exchange pre-mediation statements, sometimes responses, and are invited to submit separate side-letters for the mediator’s eyes only. Confidential side-letters allow a party to share information with the mediator that they are reluctant to share with the potential adversary in mediation.

Occasionally, a mediator may request each party to include certain information in their pre-mediation statement, such as acceptable settlement terms, information from previous settlement conversations, or a specific format for the statement. If the mediator does not mention their preferences in the pre-mediation conference, it is advisable to consult with the mediator directly to determine the mediator’s preferences for the format and nature of the statement. The process of drafting a pre-mediation statement allows the parties to each consider their goals and potential solutions before the mediation begins. Considering different settlement positions in advance of the mediation increases the likelihood of finding a mutually beneficial solution and ultimately will promote a more productive and effective mediation. While the pre-mediation statements exchanged by the parties are confidential to the outside world, it is advisable for the statement to include an explicit sentence that makes it clear that the statement is confidential and submitted for settlement purposes only.

The pre-mediation statement is a crucial step in the mediation process to educate the mediator, but also the parties, and to identify the issues and goals that matter to each side. Review of the parties’ pre-mediation statement will allow the mediator to prepare for the mediation and think beforehand of potential creative solutions and proposals for the parties to consider, both as a matter of process for the mediation, and for creating a framework for settlement discussions.

To read how Castaybert PLLC can assist you with mediation, click here.

May 23, 2023

The goal of mediation, unlike litigation, is voluntary settlement between the parties. There is no winning or losing, the goal is a compromise where both parties can walk away feeling satisfied. Because it is up to the parties whether they will or will not settle, it is imperative that you arrive prepared for mediation with a true understanding of your goals and realistic concessions you are willing to make to avoid litigation. By taking the following considerations into account before you begin mediation, you will be well prepared to advocate your position.

• What are your goals?

By identifying your key interests, you and your attorney can strategize so that the settlement addresses all of your goals. This step allows you to prioritize your interests while also considering broader areas of importance. Is this a business relationship you hope to preserve in the future? Is confidentiality particularly important to protect you moving forward? Your attorney should help you recognize these interests in addition to what is required for a financial settlement.

• Do not shy away from making the first offer.

Studies show that parties who make the opening offer in negotiation are more pleased upon settlement than their adversaries. This is thanks to “anchoring” and the fact they define the range for the negotiation to follow.

• Estimate your success at litigation.

Your attorney should help you realistically estimate your chances for success should the dispute go to litigation. Depending on this estimate, you will have a better understanding of how you should handle mediation. Perhaps you can hold out longer for a more favorable outcome given the strength of your position, or maybe you need to identify reasonable points of compromise in favor of settlement. Also, considering the costs of litigating the dispute should factor in as potential liability when determining your mediation strategy.

• Prepare to speak at the plenary session.

While it can seem easier to leave the talking to the attorneys, it can be very powerful, and beneficial to your position, if you address the opposing party directly. Authentic expressions of emotion can assist your counterparty in grasping your perspective and even shift their position closer to yours.

• How will you fund the settlement?

Arrange for funding in advance and come prepared with realistic settlement parameters. Ensure you have proof of funding and the authority to agree to settlement terms.

• Back up your position with an actual explanation.

Rather than make bare demands, come ready to assist your counterparty in understanding why you are asking for what you want. Helping them understand your why will increase your chances of success that your demand will be accepted.

• Remember the role of the mediator.

The mediator is unbiased and is there to help you reach a resolution, not hand down a verdict. Use the mediator to your advantage and remember all communications with them remain confidential and are not disclosed to your counterparty. The mediator should serve as a sounding board for your strategy for reaching a settlement and can help you get there faster.

With adequate preparation, you will arrive at mediation in the best possible position to settle favorably and avoid litigation.

To read how Castaybert PLLC can assist you with mediation, click here.

May 23, 2023

A new article from the BBC explores the importance of punctuation in contracts, focusing in particular on the comma, and how its misuse can cost companies considerably when drafters get things wrong.

Oakhurst Dairy out of Portland, ME owes delivery drivers back overtime pay after a $5M settlement reached earlier this year. Attorneys for the drivers argued the lack of a comma in the state’s overtime laws meant their clients were entitled to payments their employer believed were not owed. The key statutory language concerned those workers who were not entitled to overtime pay, including those involved in: “the canning, processing, preserving, freezing, drying, marketing, storing, packaging for shipment or distribution of: 1) agricultural produce; 2) meat and fish products; 3) perishable foods.”

The entire argument hinged on the missing comma between the words “shipment” and “or distribution.” Had a comma been used, the law would have ruled out the Oakhurst Dairy delivery drivers as those workers who distribute perishable foods.

Ken Adams, author of A Manual of Style for Contract Drafting says, “punctuation matters… [but] it boils down to commas… they matter, and exactly how depends on the context.” Commas serve to connect separate clauses in a way that leaves their reading open to interpretation, and in contract drafting this ambiguity can either be a useful strategy tool employed by the drafter, or a detrimental oversight.

US courts are turning more to textual interpretation and give more weight to the words in the contract than the testimony of the contracting parties themselves. A misplaced comma can entirely change the meaning of a sentence, an important consideration as more courts rely on the written word to decide contractual disputes. For this reason, it is essential we are “not just dotting the Is and crossing the Ts but also making sure every comma is in the right place.”

During the drafting process, if punctuation seems ambiguous, it is paramount that parties speak up and nail down the actual meaning of their negotiated terms on the page. “The purpose of a contract is to help people get the outcomes they both expected and know what they’re supposed to get from the other side,” so there should not be misunderstandings. If there are disagreements over contract interpretation, argue the issues upfront rather than down the road. Doing so may save all involved a painful legal headache in the future.

To read the full article from the BBC, The Commas That Cost Companies Millions, click here.

To read how Castaybert PLLC can assist you with contractual matters, click here.

January 20, 2023 –

A growing alternative to in-person mediation is online “virtual” mediation.

Virtual mediation is sometimes preferable to in-person mediation when the key participants in the mediation are scattered around the country or in different countries.  A remote virtual mediation may save travel time and money on travel costs and accommodations.  It may be easier to schedule the mediation and to schedule it more promptly.  It also allows the participants in the mediation to attend from different locations in which they are already familiar and comfortable, and it may sometimes make it easier to share documents during the mediation online instead of burying everyone in paper.

The interfaces for Zoom, MS Teams, and other such platforms, are relatively straightforward and intuitive.  They allow the mediator to organize joint sessions and to break the parties up into virtual break-out rooms where parties can meet privately and securely with counsel or separately with the mediator.  It is essential, then, that the mediator have the requisite experience and facility to organize the mediation on the selected video online platform and be comfortable controlling and sharing the screen and creating breakout rooms or, at a minimum have the requisite assistance from staff at the organization hosting the mediation.

To prepare for a virtual mediation counsel and client should:

1. Consider and decide whether they want to be in the same physical room during the mediation and participate individually online from a common space or each log in separately online.
2. Consult beforehand and agree on the configurations of their respective virtual rooms, the set-up of the webcam and speakers, the security of their WIFI network, their onscreen views, images, backgrounds, and the appropriate dress for the mediation.
3. Have a practice session using the pertinent platform to ensure that both counsel and client are familiar and comfortable with their respective virtual set-ups and to address any technical issues beforehand.
4. Exchange phone numbers to communicate before and during the mediation session as required and provide their respective telephone and email contacts to the mediator and staff before the mediation in the event of any interruptions and for offline discussions.

CASTAYBERT PLLC has extensive experience representing clients and participating as an effective advocate for clients in commercial mediation. To see how CASTAYBERT PLLC can assist you in the virtual mediation process, click here.

December 30, 2022 – 

Once the parties select a mediator, they should memorialize their agreement in writing.  The basic mediation agreement is usually prepared or circulated by the mediator.  This agreement should help the parties better understand the process and ground rules of the mediation, including, among other matters: the participants in the mediation; the mediator’s role and the procedure for the mediation; the facts concerning the disclosure of potential conflicts or waiver of conflicts; the payment of mediation and mediator fees; the confidentiality of the mediation process and the privileged nature of settlement discussions; a provision for the destruction of documents exchanged by the parties after the mediation is concluded.  We consider these matters in further detail below.

1. A statement identifying the participants in the mediation

It is important for the agreement to outline who is allowed to be present for the mediation and who has decision-making authority for the parties.  For instance, the agreement should stipulate, “To maximize the effectiveness of the process, Participants agree that they shall have present at each scheduled mediation session the person with full authority to settle this matter and with capacity to reevaluate Participant’s position and authority to change position, if appropriate.  Participants are encouraged to consult with the Mediator in advance of the mediation session to identify the most appropriate persons to attend the mediation session.” In addition, if the parties will be meeting remotely, that should be outlined in the agreement.  For example, the agreement may have a clause stating, “This mediation session will take place via video conference.”

2. A statement defining and distinguishing the mediator’s role

To ensure that the role of the mediator is understood by all parties, the mediator’s role should be outlined in the agreement.  A typical provision outlining the mediator’s role might read:

“The Mediator’s task is to facilitate negotiations of the Participants, not to decide the matter for them.  The Mediator shall serve in a professional capacity as mediator only, and not in any other professional capacity, e.g., as attorney. The Mediator shall offer no legal advice or opinions upon which the Participants should rely. Participants are encouraged to consult with their own professionals, such as attorneys or accountants, for independent substantive advice in areas where such advice is rendered by professionals. Any settlement agreement prepared with the assistance of the Mediator should be reviewed by each Participant’s independent legal counsel.”

3. A statement outlining the mediation procedure

To aid in the parties’ understanding of the mediation process and what practices are acceptable, key points of the procedure should be briefly outlined.  For example, a clause stating that the parties will meet jointly with the mediator and in separate caucuses, and that the mediator may terminate the process at any time.

4. Disclosure statements

The parties should agree in writing that they have disclosed all necessary information to determine whether a conflict of interest exists with their chosen mediator.  A typical disclosure statement might read:

“The mediator, each party, and counsel confirm that they have disclosed any past or present relationship or other information that a reasonable person would believe could influence the mediator’s impartiality and that no conflict of interest or appearance of a conflict of interest exists.  If Participants are uncomfortable sharing information with other Participants, but might entrust this information privately to the Mediator, they are encouraged to do so. Sharing this information enables the Mediator to discover possibilities for settlement that Participants might not otherwise recognize, and to help generate settlement options (without disclosing any confidential information).”   

5. Statements of confidentiality and privileged settlement discussion

To promote open communication throughout the process, the agreement should include a statement confirming that all individuals involved in the mediation agree to keep all interactions and documentation relating to the mediation confidential.

The mediator may also insist on a provision that limits the parties’ ability to compel testimony or the production of documents by the mediator if a resolution is not reached.

In all events, the mediation agreement should include a provision making clear that all statements made during the mediation are privileged settlement discussions, are made without prejudice to any party’s legal position, and are inadmissible for any purpose in any legal proceeding as follows:

 “The exchange of information or making of communications in the mediation process shall not constitute a waiver of: (a) the attorney-client privilege, (b) attorney work-product privilege, (c) the status of information as confidential, (d) the status of information as a trade secret. No information exchanged or communication made in the mediation process shall constitute an admission for purposes of any applicable rule of evidence. The fact that a statement or communication is made in Mediation does not, however, insulate an otherwise independently discoverable fact or independent admission from discovery or use as an admission in a later court or adjudicative proceeding.”

6. A statement outlining fees and expenses

The mediation agreement should also state how much the parties will deposit and pay the mediator for his or her services, when payment is due, and how payment of fees should be split between the parties.  A fee and expense provision may state, for example:

“The Mediator typically speaks with Participants, or their representative or counsel, by phone prior to the first mediation session.  In addition, the Mediator may speak with Participants or their representatives or counsel, jointly or in caucus, by telephone between mediation sessions, or in follow up to mediation. Any time spent by the Mediator on the telephone is billed at the Mediator’s hourly rate set forth above. The Mediator may at times require advance payments against fees and expenses. The Mediator will refund any amounts not earned or expended.” 

7. A summary of the records provided

It is also advisable to include a summary of the documents provided to the mediator by the parties and stipulate that the documents must be destroyed within a defined period following termination of the mediation.

You can see sample mediation agreements here: JAMS Sample, Sample 2

CASTAYBERT PLLC has extensive experience representing clients and participating as an effective advocate for clients in commercial mediation.  To see how CASTAYBERT PLLC can assist you in the mediation process, click here.

December 22, 2022 –

In our previous post, we explored where to find lists of potential mediators to assist in resolving a dispute.  If the parties have contractually agreed to use one of the major mediation organizations or service providers, including, for example, the American Arbitration Association (“AAA”) or JAMS, the parties can provide a basic description of the matter and the identification of the parties and their counsel.  The organization staff will then send them a list of potential mediators who are available to rank and who have already been screened for potential conflicts using the information provided.  In other cases, in which there is no contractual requirement to use a particular service provider, counsel for the parties may want to exchange and consult a list of potential mediators that they have each prepared and, if an agreement can be arrived at, reach out to the mediator directly.

In this post, we review the factors to consider in selecting the mediator.

What Professional Background Should the Mediator Have?

The parties to a dispute should take several factors into consideration when selecting a mediator, including the mediator’s background and experience.  In some cases, the parties may want a former-judge or magistrate.   In others, they may prefer a practicing attorney, which may either be a litigator or a transactional business lawyer with deal-making negotiation skills.  When a particular industry, custom, or practice is involved, knowledge and legal experience in that specific business area may be useful.

In certain cases, the parties may want to select a person with industry experience who is not a lawyer, but a dealmaker with relevant expertise or, in other cases, where accounting issues may play a great role, a mediator with a strong background in accounting or auditing may be particularly helpful.

What Experience Does the Candidate Have in Mediation and What Is Their Track Record?

Prior experience as a mediator is of paramount importance, however.  The skills of the mediator are different from those of an advocate in negotiation, arbitration, or litigation.  They are also different from those of a decision-maker, such as a judge, magistrate, or arbitrator.

So, while experience in other areas may be very beneficial, the most important experience to look for in selecting a potential mediator is that person’s training and experience in mediation, in arranging joint sessions, in conducting separate caucuses with the parties, and familiarity with the ethical duties and limitations inherent in the role of a neutral mediator in a confidential mediation.

One of the advantages of selecting a mediator on the roster of a major organization like the AAA or JAMS is that they have received the necessary mediation training required to be on those organizations’ rosters and have access to experienced staff with expertise with whom the mediator can consult about procedure and process.  Mediators affiliated with such organizations will also have access to the staff and resources to handle the logistics of the mediation, including the necessary office space and technology to facilitate the exchange of selected documents, joint conferences and separate caucuses with the parties and their counsel, both in person and remote via Zoom or other communication technologies.

The qualities and skills to look for in a mediator, whatever the background, also include the ability to identify the stated and sometimes unstated needs and interests of the parties, the ability to manage conflicting egos, confidence, listening skills, honesty, compassion, patience, flexibility, creativity, analytical skills, neutrality, and discretion.

More generally, the parties should understand the mediator’s approach to the mediation: is the mediator’s approach more facilitative or is the mediator more likely to act as an “agent of reality” for the parties?  Mediators most often include their views on the mediation process in their biographical materials or in published articles which should be reviewed carefully by counsel.  The mediators affiliated with the major service providers often include a short video by the mediator explaining their background and approach.  Beyond that, it is also helpful to consult with other lawyers or parties who have had previous experience with the mediator to obtain their insight and evaluations.  If possible, the parties should also investigate the mediator’s track record and success rate in achieving a settlement.

Actual, Potential, and Perceived Questions Regarding Impartiality or Conflicts of Interest?

Under the American Bar Association Model Standards of Conduct for Mediators (the “ABA Standards”), “a mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner,” meaning “free from favoritism, bias or prejudice.”  Further, under the same standard, “a mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.” 

Likewise, under the ABA Model Standards, “a mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.” A conflict of interest can arise from involvement by the mediator with the subject matter of the dispute or from any relationship between the mediator and a mediation participant, whether past or present, personal or professional, that reasonably raises a question of the mediator’s impartiality.

The parties must also carefully consider whether the mediator is truly impartial or has any actual or potential conflicts of interest.  Under the ABA model Standards, a mediator must make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator.  Mediators will generally disclose information regarding potential conflicts of interest, including disclosure of representation or relationships with either of the parties or their counsel in a prior dispute or professionally.  Indeed, under the ABA Model Standards, the mediator must “disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.”  After disclosure, if all parties agree, the mediator may proceed with the mediation. But “if a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.” 

In addition to formal conflicts of interest, counsel should examine the mediator’s other informal or indirect associations with the parties or their counsel, such as potential conflicting roles of their professional or personal partners, their professional affiliations with counsel on bar association panels, or even social club memberships where they may have or may potentially encounter one of the parties or their counsel.  Such potential conflicts may be of interest in the selection process to ensure the neutrality of the mediator and the perception and actuality of the mediator’s impartiality.

Likewise, in considering the selection of the mediator, the parties and their counsel need to consider the possibility of implicit bias and potential cultural differences, particularly in cases involving parties from different countries.  In all events, counsel will want to recommend selecting a mediator with whom the client feels comfortable and believes is neutral, and the attorney may need to be attentive to client perceptions and sensitivities when it comes to potential cultural bias.

Does the Potential Mediator Have the Time and Commitment to Devote to the Mediation?

The mediator’s schedule and availability are also important factors.  A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation and should only accept cases when they can satisfy the reasonable expectation of the parties concerning the timing of a mediation.  A celebrated mediator may carry a heavy schedule, particularly if the mediator is also a practicing attorney. Will the proposed mediator be able to select a prompt date for the pre-mediation conference and the mediation itself?  Will the mediator be available to pursue the mediation after the formal mediation conference to act as an intermediary, to coach the parties for a possible settlement, or to nail down an agreement in subsequent calls and conferences?  The mediator’s availability to discuss and exchange proposals after the formal mediation conference is an important factor in evaluating the mediator’s commitment to pursuing a successful settlement; the settlement may not come on the date of the mediation but only after further discussions pursued following the conference.

Costs and Fees

Finally, price always matters.  One of the disadvantages of selecting a mediator through a major service provider is the potential additional cost and fees to be paid to the organization.  Unless the contract or dispute clause requires the use of a particular service provider, the parties may be able to search the rosters and other lists of mediators and hire the mediator directly.  As for the fees charged by the mediator, these may be by the hour or for the mediation day, and the mediator may charge differently for study time and the conduct of the mediation conference.  The rates for different mediators can vary significantly and the rate the parties are willing to pay will, of course, vary depending on the amount of money at issue in the dispute.  It would be wrong, however, to mistake a mediator’s fees as a direct reflection of the quality of the mediator.  The fees listed by the mediator are a necessary factor in selecting a mediator, but by no means are they the only or even the most important one.

Generally, unless the governing contract requires otherwise, the parties will split the payment of the mediator’s fees evenly and each will be asked to make a deposit to cover the mediator’s study time and the preliminaries for scheduling and organizing the mediation.

Questions for the Potential Mediator?

While the parties can collect a host of information about a mediator online, depending on the applicable mediation rules, they may also want to interview the proposed mediators before selection.  As a noted mediator, Theo Cheng, has observed “two other methods worth noting are (1) sending out questionnaires or e-mail queries to potential mediators and (2) interviewing potential mediators.”  As Mr. Cheng has observed, “[p]articularly because ex parte contact and communications with mediators are generally permissible (unlike the case with an adjudicator like a judge or an arbitrator), it is surprising that these methods are not used more often.”   Indeed, as Mr. Cheng concludes “the personality of the mediator and his or her ability to build rapport and trust with the participants are important attributes that may well determine the course of the mediation process. Thus, it seems a missed opportunity that these two methods are not more widely used.”

Consider asking the potential mediator some of these questions:

1. Tell me about your background and expertise.
2. What kind of training have you had and when was it?
3. What is your mediation style?
4. What do you charge and are there any additional fees?
5. Do you have experience mediating a case like this?
6. How many cases have you mediated?
7. Are you on any court rosters?
8. Can you provide references?
9. How long is the process?
10. Can you mediate online?
11. Once the mediation ends, who drafts the agreement?

CASTAYBERT PLLC has extensive experience as an effective advocate for clients in commercial mediation and has experience with many different mediators.  The Firm works with its clients to select the right mediator for the type of matter at hand.  To see how CASTAYBERT PLLC can assist you in mediation, click here.

December 19, 2022 –

Once the parties of a dispute reach the decision to mediate, they are then faced with the task of finding a mediator.  Often, the court or the mediation agreement itself may specify where the parties should select a mediator.  Other times, the parties have more leeway with selection.  In this case, there are several areas the parties can look for vetted, qualified mediators.

Amongst the largest private providers of alternative dispute resolution (ADR) services, are the American Arbitration Association (AAA) and JAMS, which both provide mediator directories.  The AAA’s National Roster of Mediators includes industry leaders and distinguished judges who must adhere to the AAA Mediators Model Standards of Conduct developed by the AAA, the Association for Conflict Resolution, and the American Bar Association (ABA).  JAMS has a Search Neutral Directory, which allows users to conduct searches based on name, office(s), language, practice area, and judicial background.  The directory comprises highly respected judges, former litigators, and current attorneys from diverse backgrounds and practice areas who are subjected to extensive, ongoing training in alternative dispute resolution.  Notably, JAMS mediators offer cost-effective mediation formats for every dispute, such as half-day options.

The New York State Bar Association is another highly regarded and trusted resource that parties can use and includes a Mediator Directory.  Users can use the directory to find the right mediator for them based on the following criteria: language, experience, location, area of practice, and online mediation availability.

National Arbitration and Mediation (NAM) is also a great mediation resource and has been ranked #1 in multiple ADR categories, including mediation, by the New York Law Journal Best of Survey for twelve consecutive years.  NAM’s mediator roster is made up of esteemed former judges and legal practitioners.  View NAM’s NY Metro Roster here.

In addition, the National Academy of Distinguished Neutrals provides a state-based Member Directory and a more detailed Neutral Search to help parties find experienced mediators specializing in civil and commercial disputes throughout the country.  Membership is based on a highly selective, invite-only process that uses peer nominations and due diligence research conducted in each state.

Further, the Association for Conflict Resolution (ACR) provides a Member Directory to help connect parties to qualified mediators based on their geographic location and area of expertise.  All ACR members agree to honor the ACR Standards of Practice and to participate in an Ethics Review Process.

The ICC International Centre for ADR, made up of a staff of experienced international lawyers, is another private entity offering mediation services.  All ICC mediations are administered by the ICC International Centre for ADR and are required to follow the ICC Mediation Rules.  Interested parties can file a request for mediation here.

The International Institute for Conflict Prevention & Resolution (CPR) also offers top-notch mediation services for disputes between both United States parties and transnational parties.  CPR mediator panels consist of eminent former judges, legal academics, and outstanding conflict resolution professionals.  Members can use CPR’s Find a Neutral search feature.

Those looking for a cheaper option may be Interested in Volunteer Lawyers for the Arts’ (VLA) MediateArt program.  The program offers mediation services to artists in a confidential, neutral forum at a nominal cost. MediateArt mediators complete Training Workshops hosted by Orrick, Herrington & Sutcliffe, LLP.  To submit a request for mediation, click here.

The parties may also want to turn to the court’s roster of mediators.  The New York State Unified Court System has a Statewide Mediator Directory, which lists experienced mediators with profiles and backgrounds who have been approved to mediate for New York trial courts.  Common issues addressed involve divorce/family issues, small claims, landlord/tenant disputes, personal injury matters, and attorney-client fee disputes.  The directory allows users to refine their search based on location, subject area, language, experience, and education.  For smaller cases, parties should look at the Community Dispute Resolution Centers Program (CDRCP).

Depending on the nature of the dispute, the following links may also be helpful court resources:

New York County/Manhattan Commercial Division Roster

Court ADR Programs

Court-Based ADR Programs: New York City

Custody/Visitation Mediation Program

New York City Small Claims Court Services

United States District Court for the Southern District of New York: Mediator Roster

CASTAYBERT PLLC can assist you in selecting a mediator from one of these organizations or from their network of mediators with whom the firm has worked with when representing their clients in commercial mediations.  To see how CASTAYBERT PLLC can assist you in mediation, click here.

November 8, 2022 –

While mediation is an effective dispute resolution tool, timing is key and can make or break the success of the process.  At the end of the day, the particularities of a case will determine the right time to mediate.

Because mediation is much cheaper than a full-blown litigation or even discovery proceedings in litigation, early efforts to mediate save money.  But mediating early may not make sense if the parties do not yet have a good handle on the facts and legal issues of the dispute and require more detailed pleadings and fact discovery.  Accordingly, in many cases, it makes sense to postpone mediation until the parties have exchanged basic pleadings, produced documents, and sometimes even taken key depositions.

In other cases, the parties may wait until the filing of a dispositive motion to mediate.  For instance, a defendant may offer mediation after moving for summary judgment.  This is most effective when the motion is strong, enabling the defendant to leverage its motion to encourage mediation.

There may also be “bigger-picture” timing concerns for the parties to take into account.  The parties should be aware of relevant external issues and circumstances, if any, that exist outside of their immediate dispute: an anticipated regulatory announcement, an upcoming financial obligation, or a pending case that addresses the subject matter of the dispute, for example, may militate in favor of an earlier mediation.

Although the right time to mediate can vary, parties should always consider what they know about the opposing side’s position, the parties’ differing perspectives regarding the strength of their case based on evidence collected in discovery, and external business or reputational factors that may militate in favor of a prompt mediation.

CASTAYBERT PLLC has extensive experience representing clients and participating as an effective advocate for clients in commercial mediation. To see how CASTAYBERT PLLC can assist you in mediation, click here.

November 2, 2022 –

Today, contracts frequently require that the parties seek to mediate any disputes before commencing a litigation or arbitration.  But even when the parties are not contractually required to mediate, a litigant or potential litigant should consider the possibility of mediation, if not at inception, then during the litigation or arbitration proceedings before the parties incur significant legal fees from a trial or hearing.

The parties are of course always free to try to negotiate a settlement directly or with and through their lawyers.  Often, however, the lawyers on both sides agree to recommend mediation to their respective clients when prior efforts at negotiation have reached a procedural or substantive impasse or are unnecessarily prolonged.  The agreement to engage in non-binding, confidential mediation, then allows the parties to decide on a time and place to have all decision-makers meet to negotiate a settlement on neutral territory with the guidance of the agreed-upon mediator.

An experienced mediator is a champion for settlement, helping the parties identify the issues important to each side and the opportunities for a reasonable negotiated outcome to avoid further litigation.  The mediation process enables the parties to discuss their concerns in a confidential setting where everyone’s voice can be heard.  The mediator acts as a catalyst for the parties by guiding and moderating their communication so that they may exchange information, pinpoint and confront outstanding issues, and identify their respective interests and the possible trade-offs for resolution and settlement. The mediator can sometimes act as an “agent of reality” for both parties to see the benefits of a negotiated settlement instead of continued litigation.  Settlements reached in mediation have a high rate of compliance because, with the guidance of the mediator in the mediation process, the parties develop and agree to the terms of the resolution themselves.

In short, mediation is typically faster, cheaper, and less stressful than litigation, allows the parties to concentrate on settlement negotiations, and enables the parties to keep their dispute and its settlement confidential, minimizing the potential for adverse publicity.  Even when the mediation does not lead to a settlement, it allows the parties to hear about the strengths and weaknesses of their case from a neutral third party, learn more about the other side and what is needed to reach a resolution, and does not leave them wondering whether the dispute could have been resolved before escalation.  Often, the information learned during the mediation allows the parties to narrow their differences, making eventual settlement much more likely down the road.

Read more about the potential benefits of mediation in Edna Sussman’s article, The Reasons for Mediation’s Bright Future.