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