Going Beyond | Benefits
| Representative Mediations
Representative Arbitrations | Representative Clients
Going Beyond the Settlement Conference
A typical MARKSADR complex case mediation includes:
- Conducting early conference calls - always joint, sometimes
separate -- with representatives of all parties:
- They give the mediator a preliminary understanding of the
- They allow the mediator to develop a consensus approach
to the overall mediation, with an emphasis on pre-session
- Developing and implementing a preparation protocol, including:
- Submission of pre-existing materials to allow the mediator
to understand the issues involved in the dispute.
- Where necessary, exchange of additional documents and written
damages information by the parties in advance of the mediation.
- Submission of mediation statements and exhibits to the mediator
and, almost always, the other party or parties.
- Scheduling and holding confidential telephone conferences
with each party to:
- further discuss substantive issues,
- focus on each party's objectives,
- discuss barriers to settlement, and
- agree on an agenda for the actual mediation session.
- In some cases, convening joint or ex parte information development
and exchange meetings with attorneys and experts.
- Identification of and agreement that critical decision-makers
will attend the mediation.
- Conducting mediation sessions according to an agreed agenda:
- In most cases, a two-day session is scheduled with counsel
and senior client representatives.
- Most, but not all, sessions begin with a joint meeting in
which "jugular" issues are discussed - those critical, for
example, to a determination of what is likely to happen if
the parties don't settle.
- All sessions continue with mediator-managed, separate and,
sometimes, joint meetings, usually including a carefully-structured
offer and counter-offer process.
Many disputes settle during the initially scheduled sessions;
for those that do not, we devise appropriate follow-up strategies
and work relentlessly to help the parties achieve settlement after
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Benefits of the MarksADR Approach
Through pre-mediation spadework and mediator-assisted barrier analysis,
parties can avoid pitfalls that too often lead to failure of mediation
in complex cases:
- Stalemate due to the absence of a key decision maker.
- Stalemate resulting from one or more parties' contending they
need additional information in order to move forward.
- Stalemate resulting from one or more parties' being surprised
by information or legal positions presented by their adversaries.
- Impasse due to seemingly unbridgeable differences of view about
the likely in-court outcome and other perceived consequences of
Rigorous preparation gives the MARKSADR mediator command of the
underlying issues in the case - legal, business and interpersonal.
This allows the mediator better to manage the process of negotiation
and help the parties realistically evaluate the risks, opportunities
and costs of failing to reach agreement. Settlements can be achieved
on a principled basis, with less reliance on positional bargaining
and on mediation approaches simply intended to "split the baby."
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Cases that have been mediated by MARKSADR include:
- Class actions of all types, including alleged securities violations,
claims of civil rights violations, mass torts involving foods,
drugs and dietary supplements, insurance fraud, and employment
- Commercial and contract disputes of all types, including disputes
involving allegedly defective products, processes or services,
merger & acquisition disputes, and patent and other intellectual
- Malpractice claims against attorneys, doctors, and accountants.
- Disputes among insurers,, re-insurers, and corporations over
allocation of liabilities involving defective products, asbestos
exposure, and environmental contamination.
- Coverage disputes between major corporations and multiple insurers
involving long-term environmental and toxic tort liabilities.
- Antitrust matters;
- High-stakes personal injury claims, including death, brain injury,
paralysis, dismemberment, burns, and disfigurement.
- Product liability cases involving drugs and dietary supplements,
crash worthiness of automobiles, ATV rollovers, electrical products,
and manufacturing equipment.
- Employment disputes, including multi-party claims alleging wrongful
termination and harassment based on race, gender, age, and sexual
- Construction disputes of all types, including cases involving
power plants, airports, office complexes, a performing arts facility,
a convention center, a major college sports facility, hotels,
school buildings, and public works projects.
- Claims arising from failures of financial institutions against
officers and directors, as well as attorneys, appraisers and others.
- Disputes between public entities, government contractors and
government subcontractors over military, space and computer matters.
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Although a substantial portion of the MarksADR practice involves
mediation, Mssrs. Marks and Baten have done a significant number
of arbitrations including:
- Various disputes between joint venture partners over alleged
breaches of contractual obligations.
- Post-sale dispute between purchaser and selling of business
over performance of continuing obligations
- Dispute between purchaser and seller of business over alleged
breaches of warranties and representations in sales documents
and alleged fraud in inducing sale.
- Dispute involving owner and contractor over major road construction
- Wrongful termination claim by former CEO of major trade association.
- Determination of appropriate attorney fee award arising from
- Dispute over scope, and corresponding fees, for environmental
clean up project.
- Over 300 decisions in civil rights claims brought by African-American
farmers against the U.S. Department of Agriculture as part of
the "Black Farmers" class action.
- Disputes arising from the implementation of settlement agreements.
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Alston & Bird
Altheimer & Gray
Arnold & Porter
Baker & Daniels
Baker & Hostetler
Baker & McKenzie
Barnes & Thornburg
Berger & Montague
Broad and Casell
Chitwood & Harley
Cozen & O'Connor
Crowell & Morning
Cummings & Lockwood
Davis Polk & Wardwell
Foley & Lardner
Godfrey & Kahn
Hale and Dorr
Hanify & King
Hill & Barlow
Hogan & Hartson
Holland & Hart
Holland & Knight
Hunton & Williams
Jenkens & Gilchrist
Jenner & Block
King & Spalding
Kirkland & Ellis
Latham & Watkins
Mays & Valentine
McKenna Long & Aldridge
Morrison & Foerster
O'Melveny & Myers
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Pennie & Edmonds
Peterson & Ross
Quarles & Brady
Ropes & Gray
Shearman & Sterling
Sullivan & Cromwell
White & Williams
Williams & Connelly
Winston & Strawn