Going Beyond | Benefits | Representative Mediations
Representative Arbitrations
| Representative Clients

Going Beyond the Settlement Conference Approach

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.

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 the session.

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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 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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Representative Mediations

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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Representative Arbitrations

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

Alston & Bird
Altheimer & Gray
Arent Fox
Armstrong Teasdale
Arnold & Porter
Baker & Daniels
Baker & Hostetler
Baker & McKenzie
Baker, Donelson
Ballard Spahr
Barack Ferrazzano
Barnes & Thornburg
Berger & Montague
Berman, DeValerio
Bernstein Litowitz
Blank Rome
Broad and Casell
Brobeck Phleger
Cahill Gordon
Carlton Fields
Chitwood & Harley
Clausen Miller
Cleary Gottlieb
Cohen Milstein
Cozen & O'Connor
Crowell & Morning
Cummings & Lockwood
Davis Polk & Wardwell
Davis Wright
Day Berry
Dewey Ballantine
Dickstein Shapiro
Duane, Morris
Florance Gordon
Foley & Lardner
Foley Hoag
Foote Myers
Fried Frank
Gilbert Hines
Godfrey & Kahn
Goodwin Proctor

Greenberg Traurig
Griffin Cochran
Hale and Dorr
Hanify & King
Hill & Barlow
Hogan & Hartson
Holland & Hart
Holland & Knight
Howrey Simon
Hunton & Williams
Ice Miller
Jenkens & Gilchrist
Jenner & Block
Jones, Day
Kelley Drye
Kilpatrick Stockton
King & Spalding
Kirkland & Ellis
Latham & Watkins
Lewis Babcock
Lowenstein Sandler
Luce Forward
Mayer Brown
Mays & Valentine
McDermott Will
McGuire Woods
McKenna Long & Aldridge
Meites Mulder
Milbank Tweed
Milberg Weiss
Miller Cassidy
Miller Faucher
Mintz Levin
Morgan Lewis
Morrison & Foerster
Nelson Mullins
O'Melveny & Myers
Parker Chapin
Patton Boggs
Paul Hastings
Paul Weiss

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Pennie & Edmonds
Pepper Hamilton
Perkins Coie
Peterson & Ross
Piper Rudnick
Porter Wright
Proskauer Rose
Quarles & Brady
Rivkin Radler
Robins Kaplan
Ropes & Gray
Schnader Harrison
Schulte Roth
Shaw Pittman
Shearman & Sterling
Shiff Hardin
Sidley Austin
Simpson Thacher
Skadden Arps
Smith Gambrell
Stroock Stroock
Sullivan & Cromwell
Sussman Godfrey
Sutherland Asbill
Swidler Berlin
Testa Hurwitz
Thompson Hine
Troutman Sanders
Vedder Price
Vorys Sater
Weil Gotshal
White & Williams
Wiley Rein
Williams & Connelly
Wilmer Cutler
Winston & Strawn
Wolf Block
Womble Carlyle
Zuckerman Spaeder