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Why Are Mediations So Popular in Massachusetts?

As you may be aware, several of my blogs in recent years have dealt with mediation. Mediations are increasingly used as is all forms of alternative dispute resolution. I find it remarkable how commonplace mediation has become for major civil cases, i.e. major personal injury cases as compared to when I started practicing law thirty-five years ago. I used to be a mediation skeptic having felt that it is only as good as the amount of money that is brought to the mediation by the sometimes recalcitrant insurer. But I have found it to be successful for so many cases over so many years that I am now very much in favor of mediation. You hear what the other side has to say and what their evidence will be. They hear a forceful presentation by your lawyer. Equally important is that you hear what will often be their best settlement offer, at least by the end of the mediation session. You and your client can make an informed decision as to whether accept or reject.

One thing that should be borne in mind is that Massachusetts operates under a mediation statute, Chapter 233, section 23C of the General Laws. Basically that statute tells us that a mediation and its complete process is to be confidential. Not only will the mediator’s case file be confidential, but communications made in the course of the mediation are to be held in confidence. This law has been reinforced by some decisions in Massachusetts which grant a blanket of confidentiality to the mediation process.

Confidentiality is well-known in law. Most people are familiar with it and it is an essential part of our legal doctrine. There is a priest/penitent confidentiality, husband and wife confidentiality (that in fact can be referred to as a spousal disqualification in Massachusetts for confidential communications among spouses), and the attorney/client privilege, the last of which is very well-known. The fact then that mediation is afforded confidentiality status is not very surprising. The purpose, I would suppose, is to encourage a frank discussion and to encourage settlement with neither party worrying about it being used against them.

I will continue to be a proponent of mediation until I see otherwise. It is used now along with arbitrations and case evaluations, though more common than either of the other two. In fact in the Pre-trial order for Massachusetts courts, they ask about the parties’ position on alternative forms of resolution. The system encourages it. Mediation has become effective in large part because when the parties go into it they know that there is little to lose. They need not fear that something they say can or will be used against them. There is complete assurance of confidentiality, referred to as blanket confidentiality in one Massachusetts case, and that is something that I think has contributed to the success of mediations in the personal injury field.

In a later blog I will talk about the introduction that each mediator gives at the outset of the session. Obviously individual styles differ but there are common threads. Confidentiality is one part of the introduction that is emphasized. It is not the only one as I will discuss.

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