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 dispute.
    
  • They allow the mediator to develop a consensus approach to the overall mediation, with an emphasis on pre-session preparation.
    
• 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.

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 not settling.

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 disputes.
  
• Commercial and contract disputes of all types, including disputes involving allegedly defective products, processes or services, merger & acquisition disputes, and patent and other intellectual property disputes;
  
• 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 orientation.
  
• 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 project.
  
• Wrongful termination claim by former CEO of major trade association.
  
• Determination of appropriate attorney fee award arising from class action.
  
• 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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Representative Clients