Mediation is a form of alternative dispute resolution where settlement negotiations between parties to a dispute are facilitated by a neutral third party, or mediator.
The mediator does not have the power to impose a resolution or make rulings. Rather, the mediator guides the parties towards resolution , thereby avoiding the cost in time, money, and potential exposure of a court proceeding or arbitration. Through a variety of techniques including sessions with all parties and separate caucuses with each party, the mediator helps both sides define the issues clearly, understand each other’s position, and move closer to resolution.
Mediation differs dramatically from adjudication and arbitration. In those processes, a judge or arbitrator hears evidence relating to a particular conflict and then determines who “wins” or “loses” based upon the applicable law. In mediation, the parties control the outcome, and the potential exists for an agreed-upon “win-win” solution which preserves the essential interests of all of the disputants in a confidential setting.
There are generally two styles of mediation, facilitative and evaluative, with variations of both. In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions, validates and normalizes parties’ points of view, searches for interests behind the positions taken by parties, and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of each side’s case and predicting what a judge, jury or arbitration panel might do. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness. The evaluative mediator structures the process, and directly influences the outcome of mediation.
Carlile Patchen & Murphy has lawyers skilled in acting as evaluative and facilitative mediators with track records that demonstrate their effectiveness. They also have the background and special training that is sometimes required for specific kinds of cases.
Our lawyers are regularly called upon to act as mediators in cases involving:
- Employment Law
- Family Law
- Business Disputes
- Securities Industry Disputes
- Probate or Estate Disputes
PROBATE, TRUST AND FIDUCIARY
Whether it is a will contest among family members, a suit against officers or directors, or a fight to reform a trust, claims against fiduciaries and will contests are on the rise. Unlike litigating a dispute in the courts of general jurisdiction, probate litigation comes with its unique challenges and rules, and calls for unique experience and expertise.
TRADE SECRETS AND PROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION
Disputes related to the misuse of proprietary or confidential information and trade secrets have dramatically increased as a result of the growth of technology based companies and competition in the market place. A company’s very survival requires that they hire and retain talented workers and constantly grow their client base. In the world today, one’s most valuable asset is often a client list or some other confidential or proprietary piece of information. In addition Federal and state law now mandate that a business take steps to protect the confidential information of their customers.
DISPUTE RESOLUTION
When employees move to competing companies the existence and use of trade secrets and intellectual property are often at the heart of the disputes that arise. Ohio and most other states have adopted specific statutes that define what constitutes a trade secret and if it can be protected but these disputes date back to the turn of the century when dairies took milkmen to court to prevent them from working for competing dairies.
Often, the best result involves forging a mutually agreeable outcome and allowing both sides to focus on their businesses instead of on costly lawsuits. Helping the business or the individual who allegedly misappropriated trade secrets or confidential information identify win-win outcomes, and thereby avoid the need to go to court is the goal of every such encounter.
LITIGATION
However, when a negotiated outcome is not possible a court case is almost inevitable. This type of litigation follows specific and unique rules and the relief sought from the judge is referred to as “extraordinary relief”. The name accurately reflects the urgent and sometime frenetic pace of this kind of litigation. Our attorneys can adeptly and aggressively leverage their experience to further our clients’ interests in court and arbitration forums where an appearance is sometimes required with little or no time to prepare. These actions include claims for breach of contract, misappropriation of trade secrets, tortious interference with contract and unfair competition. Where necessary, we pursue and defend injunctive actions, including requests for temporary restraining orders and preliminary injunctions.
Our lawyers have successfully litigated disputes over non-competition, non-solicitation, and non-disclosure agreements in state and federal courts throughout the United States, including on behalf of the following representative industries:
Medical and veterinary practices
The securities industry
Financial services institutions
Professionals services
Energy services
Technology companies
Manufacturing and distribution concerns
Consumer-goods sellers and installers
TRADEMARK AND COPYRIGHT INFRINGEMENT
In addition to litigating the enforceability of restrictive covenants, our attorneys protect your interest in your trademark, copyright, and other intellectual property. Your trademark is your calling card, and when your exclusive right to use a protected mark, design, name or phrase is misappropriated, our attorneys will take steps to insure that your investment is protected to the fullest extent of the law. Similarly, we help you protect other intangible property that you have taken steps to use to the exclusion of others.
FAMILY LAW MEDIATION
Family law disputes can be extremely difficult to resolve for many reasons, but primarily because the emotions are often very painful for both parties.
It is generally believed that resolutions to family problems are more meaningful and effective if the people involved in the dispute can reach an agreement without having to involve the courts, judges, magistrates or others who will make decisions on your behalf. For obvious reasons, no one knows your family like you do, and any resolution you can reach with the other person involved in your case is going to be tailored specifically to the circumstances of your family.
Sometimes, however, because of these strong and painful emotions, the individuals directly involved in the conflict are unable to have conversations with each other without the anger, resentment, hurt, sadness, etc., getting in the way. In those cases, a mediator may be able to help you have those conversations so that your issues can still be resolved without having a stranger make decisions for your family after a lengthy and expensive trial in court.
A mediator is not a judge, magistrate or decision-maker. A mediator is a trained, independent, neutral third party who will shepherd you through the conversations that are necessary to resolve your dispute without having to go to court. If the negative emotions begin to get in the way, the mediator is trained to help you get back on track so that your conversations can be productive, rather than destructive.
The family law attorneys at Carlile Patchen & Murphy LLP are not only trained mediators in their own right, but they also believe in the mediation process to help reduce costs and increase efficiency for their clients in resolving family problems. If we believe it is possible to involve a mediator in your case so that you do not have to go through a lengthy and expensive trial procedure, we will guide you to the mediators whom we believe can do the best job for your type of case. In addition, other family law attorneys will sometimes involve us as mediators to help resolve cases for their clients.
SECURITIES MEDIATION
Carlile Patchen and Murphy Partner, Dennis Concilla, is often asked to serve as a mediator in disputes related to the securities industry and other claims of professional misconduct and has been retained by litigants to conduct pre-mediation evaluations.
As the head of the firm’s Securities Practice Group which has received a top tier ranking from Best Lawyers in America, he has appeared before FINRA, the New York Stock Exchange, the Commodities and Futures Trading Commission, the Securities and Exchange Commission, and the Ohio Division of Securities as well as several other state securities regulators.
Dennis has served as an expert witness before NASD and FINRA arbitration panels, AAA arbitration panels, Common Pleas Courts, and State Securities regulators on topics related to the standards and practices within the securities industry. He has also been a speaker at NASD sponsored arbitrator training seminars throughout the Eastern United States.
This experience makes him ideally qualified to evaluate and resolve these types of disputes. Mr. Concilla has also received training in the process of facilitative mediation if that skill set is required to accomplish a settlement between the parties.
Mr. Concilla has been listed in Best Lawyers in America in the specialty of Litigation-Securities, Securities/Capital Markets, and Securities Regulation Law and has been chosen as an “Ohio Super Lawyer” in the securities law area. In 2013, Dennis was named “Lawyer of the Year” in the Securities/Capital Markets Law category by the Best Lawyers organization.
He has served as an instructor for Continuing Legal Education seminars sponsored by the Columbus, Cleveland, and Ohio Bar Associations on the subject of securities litigation and stock broker misconduct and served on a committee for The Ohio Judicial Conference to draft model jury instructions for securities litigation.
Dennis is a Member of the Securities Industry and Financial Markets Association, Law and Compliance Division; the American, Ohio State and Columbus Bar Associations and enjoys a Martindale-Hubbell rating of AV® Preeminent™*
Phone: 614.228.6135|
Fax: 614.221.0216