Event Information 274307

1:30 p.m.

Registration

2:00-2:40 p.m.

The What and the Why of Mediation

 

What Is Mediation? Mediation is a cost-effective process dependent upon the cooperation of counsel, parties and the court. It can lead to voluntary settlements in all types and phases of bankruptcy cases, including consumer cases, cases and controversies under chapters 11 and 9, adversary proceedings, plan confirmations and post-confirmation litigation.

 

Why Mediation? Mediation is cost-effective and voluntary, even if mandated by the court. It provides parties and counsel with an opportunity to resolve matters with questionable or doubtful claims or defenses. Additionally, mediation may lead to positive personal and business relationships going forward.

 

View from the Bench: While litigation is not cost-effective in many cases and controversies, and while parties are of course entitled to their “day in court,” some parties might be better served by mediation. Judges are divided on whether mediation should be mandatory by rule, on the court’s own motion, or completely voluntary.

 

Choosing the Mediator/Styles of Mediation: Judges, Retired Judges, Lawyers, Others: Mediators might be judges, retired judges, lawyers or nonlawyers. Each category might have positive and negative characteristics, but some of the presumptions about each category might be overstated or inaccurate. A mediator should be trained and skilled by experience in whatever his or her background might be. A mediator might have a particular style; some are neutral, others are evaluative, and some might be directive. A good mediator should be flexible and ready to engage the parties in a way that moves the process along without forcing a result.

 

2:45-3:35 p.m.

Fundamentals of Mediation

 

Rules and Statutes: This aspect will focus on the requirements in the District and Commonwealth of Massachusetts; however, attendees from other jurisdictions are welcome. All will benefit from the general discussion.

 

Privilege and Confidentiality: Mediation must occur in a safe environment where disclosures may be made without the fear that they will be used in pending or future legal proceedings. We will cover what counsel should know about this aspect of mediation.

 

Mediation Agreements and Settlement Agreements: Written documents governing the mediation are critical. A written settlement agreement executed at the conclusion of a successful mediation is the best way to avoid “buyer’s remorse” when putting it on the record is not possible.

 

Phases of Mediation:

​· Pre-Mediation Conference: Meeting with the mediator before the mediation is the surest way to plan for a successful session and is akin to a final pre-trial conference. The basic elements of the pre-mediation conference will be discussed.

· Mediation Session: The basic outline will be provided of how the mediator may lead the process to achieve a settlement through supervised negotiations.

· Caucuses and Breakouts: Counsel and parties will learn why private “ex parte meetings’’ with the mediator are permissible and how such interactions, along with plenary sessions, might aid in achieving a successful outcome.

· Putting It on the Record: Putting a settlement on the record through counsel, with the sworn acceptance of the parties, is the best way to preserve the deal.

3:35-3:45 p.m.

Break

3:45-4:35 p.m.

Role-Playing by Instructors

 

The participants will read a script and break out into working sessions with the faculty, then regroup for a mock mediation.

4:40-5:10 p.m.

Facilitated Discussion

 

The faculty will lead a discussion of the topics covered and allow the participants to voice questions and concerns.

5:10 p.m.

Adjourn