THE MAYERSON FIRM PLLC
MEDIATION
Mediation is a process by which a disinterested, neutral third party (the mediator) facilitates the parties reaching agreement, rather than yielding a result imposed by a court or arbitration panel. Marc Mayerson has experience representing clients in mediations of complex disputes and as serving as a mediator himself. He has also help train other professional mediators regarding resolution of insurance-coverage disputes.
Marc's experience in mediation commenced in law school, when he was trained by the famed Harvard Negotiation Project to serve as a mediator in small-claims court disputes. Upon entering private practice, Marc served as counsel for the policyholder in mediations of disputes between a policyholder and its insurer(s). Oft times, these mediations were "really" about how to resolve an underlying class action against the policyholder for which it was seeking insurance recovery; so the most effective vehicle often is a "three cornered" mediation, with the underlying plaintiff, the defendant/policyholder, and the insurers. In these types of mediations, Marc has proven especially effective in conveying to the plaintiffs suing his client (the defendant/policyholder) the limitations on coverage or predicting the constraints on the insurer in contributing to the settlement. These untraditional mediations are akin to solving simultaneous equations, but can prove ideal from the insured's perspective since it resolves both the liability claims against and the coverage claims in one process. Nevertheless, as a voluntary mechanism, mediations do not always reach a resolution, and being prepared for that possibility can still be turned to a positive if the strategy of the mediation is right so as to educate one's opponent on salient concerns and induce the opponent to view its own position as not so much of a "slam dunk" as it perceives, thus acclimating it to the size of the check that will be necessary to resolve the matter.
The design of the mediation is developed in conjunction with the parties, but usually the mediator decides on the manner in which the process will unfold. Unlike arbitration, parties have ex parte communications with the mediator, often before the actual "mediation day or days" take place. An organizational call with both sides is requisite to determine, as an example, whether pre-mediation briefs will be submitted (and whether all or part of it is shared with the other side or only with the mediator). At the mediation, sometimes quasi-opening statements are provided by the parties, especially when there is the sense of misperception of the issues or the strengths or weaknesses of the case. Following, there may be rounds of individual meetings between one side and the mediator by which the mediator is using shuttle-diplomacy to suss out the real issues and understand the private concerns of each party that it might not want aired out in front of the other side. The mediation can proceed then only with shuttle diplomacy, with no further grand caucus or joint session, if one side or the other is ready with to make a proposal. This process is readily transferrable to online video-conferencing platforms.
The mediator's role in part is to understand the proposal and the message to be delivered and to convey in advance the mediator's prediction of how the other side might react and whether that might counsel some modification in the proposal. (The mediator always makes sure what information or view from one side may not be shared with the other during the shuttle-diplomacy.) These back and forths can produce an agreement, may produce an impasse, or may become so bogged down that additional joint caucuses are requisite to air out what is precluding the parties from narrowing the gap between them. Even in very intractable disputes, an effective mediator can transcend the parties differences and induce them to see how some deal might be better than no deal. Some parties, at impasse, may even ask the mediator for a "mediator's recommendation," which essentially is a "best and final" opportunity to resolve the matter in that mediation as the mediator sees it. (The mediator may choose, for very good reasons, not to provide such a recommendation when jointly asked by the parties.). The key to a mediated outcome is party autonomy; the parties must themselves come to and "own" the outcome. The mediator is there only to help and facilitate such an outcome if it is available.
Put somewhat different, the best mediators may push and prod the parties to see if settlement can be achieved, but the best mediators do not count resolutions by agreement as notches on a belt. It is a party-driven, party-focused process. A mediation that does not resolve can still have benefit to the parties, who emerge more thoughtful about the the risks or problems in their claims and usually reevaluate their own assessment of the previously underestimated strengths of the other sides points. And in business-to-business mediations, important bridges of communication and repair of a broader business relationship can be advanced through the involvement of a skilled, experienced mediator such as Marc Mayerson.
Relatedly, discovery disputes are being sent to mediators, especially regarding electronically stored information (ESI). Marc Mayerson can serve effectively as a special discovery master or mediator.
Having served in both roles in mediations, as party advocate and as mediator, makes Marc Mayerson more effective at both. In his capacity as an appointed mediator, Marc mediated "[Super]Storm Sandy" insurance claims between policyholders and insurers in New York under a program established by the New York insurance regulators and the American Arbitration Association.
Marc also has been trained by Access Youth (DC) as a mediator for juveniles involved in disputes. Access Youth is a program developed in conjunction with the DC Courts to divert certain juvenile-delinquency or teen-dispute cases from the criminal justice system to a program of mediation, often focused on restorative justice, and at all times spurring outcomes voluntarily undertaken by the participants.
Marc's services as a mediator can be engaged directly via the firm or through mediation service providers such as AmandaADR.