About Jennifer L. Marlborough
Mediation Services
Legal Experience
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The costs of litigation have increased astronomically over the last decade, especially with the fairly recent requirements by courts that parties engage in electronic discovery.  More and more individuals and companies are seeking alternative and faster methods to resolve their disputes.  Mediation provides a wonderful and cost-effective forum for parties to engage in discussions outside the adversarial environment of court or arbitration, and to hopefully reach an agreement.

Mediation is typically a voluntary process, by which the parties (and their attorneys if desired) meet in an informal setting with a mediator.  Each party has the unfettered opportunity to tell  his/her/its "side of the story" directly to his/her/its adversary or adversaries.  It is not unusual for the parties to hear certain things for the first time from the other parties, because they have finally gotten a chance to speak freely about the dispute and to convey what they view as the real issues at stake.  Often, what is of value to the party is not the same as what has been presented in court, in arbitration or even in the pleadings.

The mediator's job is to facilitate the discussions, ask pertinent questions to guide the parties, help the parties discover their true needs and interests, help generate and assess options for a resolution, and aid the parties in determining if the proposed resolutions are better or worse alternatives to continuing to litigate (or, in some cases, to commence litigation).

If litigation has already commenced, the court might require the parties to participate in mediation before it will allow the case to go to trial.  While mediation is typically considered a voluntary process, and the parties might feel forced to participate, mediation is truly a wonderful opportunity for all involved.  It allows for each of the parties to have his/her/its story heard by the other parties (and their attorneys) and they might find that in fact, once the layer of adversarial litigation is peeled back, there might really be a good resolution to the dispute.  The parties should treat this as an opportunity, and not just another hurdle they have to endure before going to trial.

Occasionally, parties to an arbitration will choose to participate in a mediation before continuing toward an arbitration hearing.  The costs of continuing through hearings can sometimes be comparable to going to trial, with the hearing room rentals, the arbitrators' fees, the administrating entity's fees, and, of course, the legal fees. 

Even if the case is in court, the parties might decide to take some time to try a mediation before undergoing extensive discovery, motion practice and trial.

There are also those individuals and entities who have a dispute but nobody has yet filed a claim in court or in arbitration.  They want to avoid the litigation costs by trying to resolve the dispute in mediation.

All of these scenarios lend itself to what could be a very successful mediation.

Jennifer treats all mediation participants with respect and provides an environment that encourages all participants to speak freely.  Mediation is meant to be an open exchange of information, and Jennifer remains neutral to all parties while asking pertinent and exploratory questions which assists the parties in articulating their perspectives.  She facilitates the discussions, helps the parties discover their underlying concerns or needs, helps generate and assess options, and aids the parties in determining if the proposed resolutions are better or worse alternatives to litigation.

During the mediation, Jennifer utilizes both caucuses and the joint sessions. If she and/or the parties think it would be beneficial, Jennifer will meet with the parties in caucuses, which are sessions in which she meets with each party individually to gather information and/or explore options.  Often, a party might not want to say something in front of the other party but would want the mediator to have certain information.  Sometimes, after discussion in the caucus, the party will decide that it in fact does want the other side to know that information but would prefer that Jennifer make the disclosure instead. Both caucuses and joint sessions are helpful to move the process along.

If an agreement is reached and the parties wish, Jennifer can assist in drafting a written agreement. 

However, even if the parties do not reach an agreement during the mediation session, the mediation should never be considered a "failure", as parties undoubtedly will have discovered new information during the mediation, and will possibly reassess their own position in light of what they have heard; they might even reach a resolution after the mediation.  If the parties did not reach an agreement during the mediation session and the parties think it is beneficial, Jennifer can follow up with them after the mediation to see if she can be of further assistance.

Given Jennifer's background in commercial litigation and her commercial mediation training, she is very effective in commercial mediation.  However, having also received training from the New York Peace Institute, she is also skillful in helping to resolve non-commercial disputes, from problems with neighbors to disputes between friends to everything in between.