Alternative Dispute Resolution

ADR provides opportunities to resolve disputes more quickly and less expensively than litigation in court. ADR also can be a way to solve problems creatively and with processes and solutions that are not available through the court system.

professionals

Maria Fox

Michael D. Traister

Heather T. Whiting

Murray Plumb & Murray offers a variety of Alternative Dispute Resolution (ADR) services including:

Mediation
Early neutral evaluation
Arbitration
Independent workplace investigations

Our firm is pleased to offer ADR services (in person or by Zoom video conference) in the following areas:

Labor and employment disputes
Divorce
Disputes among family members or neighbors
Business/commercial
Construction
Property disputes
Separation/dissolution of domestic partnerships
Real estate partitions

Mediation

Mediation is a confidential process that provides an opportunity for parties to resolve disputes on their own terms more quickly and efficiently than administrative, arbitration or court processes. It also provides parties a chance to have their matters heard and get some closure. Mediators at MPM are seasoned and reputable attorneys in their subject matter areas. They approach mediation proactively by educating parties about mediation, earning their trust, building rapport, and engaging them in the process.

In order to think about resolution, we understand that parties need to feel heard. They also need to feel respected. We provide a well-structured mediation process that helps parties manage their emotions, identify and prioritize their interests, clarify the options, and consider alternatives.

MPM’s mediators utilize a combination of facilitative and evaluative techniques, depending on the case. As skilled mediators, we know whether and when to use these techniques, considering the parties, their counsel, and timing. It is important not to evaluate a case too quickly, as that may diminish our neutrality and cause a party to feel unheard and lose trust in us. At the same time, we are ready and willing to push back on the parties’ positions and settlement proposals and conduct candid reality testing. There is nothing more frustrating than having a mediator passively shuttle numbers back and forth between the parties. Our mediators actively lead the process, with care and interest in the parties’ situation, calm professionalism, persistence, and optimism that even the most difficult cases can and do resolve in mediation.

For mediation to be most productive, the parties should carefully consider whether the timing is right. Do the parties have sufficient information to engage in serious settlement discussions, or is some exchange of information or discovery needed before that can happen? Do the parties have a genuine interest in exploring a settlement at this time? Do they seem ready to consider a compromise and close the chapter on the dispute under the right terms?

The parties’ decision makers also must come to the mediation prepared for a meaningful discussion about the strengths and weaknesses of the case. That means gathering the available documents and information to best assess the claims, defenses, and potential damages; reviewing the relevant law and risks (including legal risks as well as the impact on the parties’ lives, their business/operations, if the matter does not resolve); anticipating the other party’s response; considering various alternative paths for resolution. Counsel for the parties should also consider talking with the mediator privately (either ahead of the mediation or during the mediation, if possible) regarding any unique challenges in the case or tricky dynamics, so the mediator can adjust the process accordingly. These insights can be invaluable for the mediator. Our effectiveness as mediators is directly affected by the timing of mediation, the level of preparedness of the parties, participation by the key decision makers, and the parties’ trust in us and in the process

Early Neutral Evaluation

Early Neutral Evaluation (ENE), sometimes called “case evaluation,” is an informal, confidential process in which parties present disputed facts and legal issues to an experienced neutral. The neutral advises the parties on the strengths and weaknesses of their positions, predicts a likely outcome if the case were to go to trial, and/or estimates the value of the case. The evaluator’s opinions are confidential and advisory only.

The process can be designed to meet the parties’ particular needs. Typically, counsel are asked to provide written statements including factual details, as well as liability and damages analyses, including any anticipated legal and evidentiary disputes. The parties and their counsel would meet in joint and/or private caucus where the neutral would gather additional information for their evaluation. Once the information is gathered, the parties have the option to have the neutral mediate and try to resolve the case without any formal evaluation. If both sides do not agree to mediate at that point or if mediation is attempted but unsuccessful, the neutral would provide their evaluation. The evaluation can be oral and/or written and usually includes the neutral’s assessment of the relative strengths and weaknesses of the case, likely outcomes on significant legal issues including summary judgment, and a settlement value or range. As with mediation, the process is confidential. Sometimes parties will agree to conduct additional focused discovery and submit additional information to the neutral before the neutral completes their formal evaluation. Sometimes parties may ask to hold off on issuing the formal evaluation while they attempt to negotiate a settlement on their own.

Arbitration

Arbitration is a procedure in which a dispute is submitted to one or more neutral arbitrators who make a decision. Parties may elect arbitration to resolve a dispute that has arisen or they may have signed a contract that requires arbitration instead of going to court.

Arbitrations are private and confidential and the parties generally select the arbitrator(s) by agreement or through a neutral process. Arbitration agreements often spell out where the arbitration will take place and the procedural and evidentiary rules that will be followed. In a final and binding arbitration, the ability to appeal is very limited, which brings finality to a case sooner than court litigation.

Arbitrators at MPM are seasoned and reputable attorneys in their fields. We provide a process where all parties will feel heard and respected, and are given a full opportunity to present their case while following the terms of the arbitration agreement and applicable laws and rules. We pride ourselves in striking the right balance between allowing parties a reasonable amount of time to prepare and present their case and moving the case along efficiently. For every controversy brought before us, we have a strong commitment to key features of arbitration: speed, economy, and a just resolution.

Independent Workplace Investigations

Murray Plumb & Murray has extensive workplace investigation expertise and has provided investigation services to employers in many industries, including educational institutions, daycare centers, group homes, municipalities, nonprofit organizations, factories, waste management, hotels, restaurants, law firms, court systems, and law enforcement.

We have substantial experience investigating sexual harassment claims, discrimination claims, wrongful discharge claims, supervisor or coworker bullying, and other employee relations concerns, allegations of misconduct (such as theft of company property), and many other workplace issues.

Workplace investigations that are well done can help employers avoid litigation. Employees often see a neutral investigator as a sign that the employer is taking the matter seriously and the process may satisfy their goals and expectations. If litigation cannot be avoided, an investigation that is done property can serve as a defense to employment claims whereas an investigation that is done improperly can increase the risk of legal exposure for employers.

Our investigators provide a prompt, unbiased, and thorough investigation and an oral and/or written report, at the election of the employer. This allows the employer’s decision makers to consider the information gathered before deciding to take any action. In addition to describing the investigation process and the facts and evidence gathered, employers often ask that our reports include credibility determinations, analysis of whether laws or policies were violated, and recommendations.

Sometimes it is appropriate and sufficient for an employer to conduct an investigation in-house, but certain circumstances warrant hiring an outside investigator. Employers should consider hiring an outside investigator in the following situations:

There are allegations of misconduct by high-level employees, such as the CEO, Executive Director, or an owner
The allegations involve sensitive or egregious matters, such as sexual harassment, discrimination, retaliation, whistleblowing, theft, assault/battery
Multiple employees have complained or reported the same person or issues
There are allegations of widespread or systemic discrimination or harassment
There are risks of adverse publicity or significant financial or legal exposure due to the nature of the allegations
The employer does not have an in-house person with the expertise or the time to conduct the investigation properly, or they are too close to the situation to be or appear to be impartial