Should I agree to mediation?

Axiom Mediation offers numerous benefits as an alternative dispute resolution (“ADR”) process for individuals and organizations seeking to resolve conflicts or disputes. Here is a list of just some of the key benefits of mediation:

Voluntary Participation in Mediation:

Mediation is a voluntary process, which means that all parties involved choose to participate. (Ok, sometimes it is ordered, but only if the parties are interested in a resolution is it likely to be successful.) This often leads to a greater sense of ownership and commitment to finding a resolution.

Mediation offers Control and Empowerment:

Axiom Mediation empowers the parties to actively participate in crafting their own solutions. The parties have more interest in the resolution and know more about the problem than a judge or jury, who are strangers. This control over the outcome can result in more satisfying and durable agreements compared to decisions imposed by a court or arbitrator.

Axiom Mediation offers Confidentiality:

Axiom Mediation is typically confidential, allowing parties to openly discuss their concerns without fear of their statements being used against them in future legal proceedings. There are vary few exceptions to the confidentiality that govern mediations. This encourages honest and open communication.

Axiom Mediation is Cost-Effective:

Axiom Mediation is generally less expensive than litigation or arbitration. It saves both time and money by avoiding lengthy court proceedings, legal fees, and other associated costs. Many litigation cases ultimately are resolved in mediation!

Axiom Mediation is Flexible and Informal:

Axiom Mediation is less formal than traditional legal proceedings, allowing for more flexible scheduling and a less intimidating environment. This can make it easier for parties to express their feelings and concerns. The outcomes similarly can include things that courts can’t give!

Axiom Mediation offers Preservation of Relationships:

Axiom Mediation focuses on finding mutually acceptable solutions, which can help preserve relationships that may have otherwise been strained or destroyed through adversarial legal battles.

Axiom Mediation results in Mutually Beneficial Solutions:

Axiom Mediation aims to create win-win outcomes, where both parties can benefit from the agreement. This contrasts with litigation, which often results in a winner and a loser. Mediation provides risk reduction and management – you decide whether the outcome is one that is acceptable to you!

Axiom Mediation offers Faster Resolution:

Axiom Mediation generally takes less time than litigation, which can be especially advantageous for parties who want to resolve their issues quickly.

Axiom Mediation Reduces Emotional Stress:

The collaborative nature of mediation can reduce the emotional stress and psychological toll that often accompanies contentious court battles.

Axiom Mediation creates Customized Solutions:

Axiom Mediation allows for creative and tailored solutions that meet the specific needs and interests of the parties involved. This level of customization is not possible in a courtroom. Mediator Tom Roberts brings the creativity of an artist with the mind of a seasoned litigator together to create acceptable solutions.

Axiom Mediation offers High Compliance Rates:

Since the parties themselves have a say in crafting the agreement, they are more likely to abide by the terms, resulting in higher compliance rates with mediated agreements.

Axiom Mediation provides a Supportive Environment:

Axiom Mediators are trained to create a supportive and constructive atmosphere for communication. They help parties understand each other’s perspectives and facilitate productive discussions.

Axiom Mediation is Less Adversarial:

Unlike courtroom proceedings, mediation promotes a cooperative and collaborative approach to resolving conflicts, which can be especially helpful in maintaining a positive atmosphere, particularly in family or workplace disputes.

Axiom Mediation is Less Destructive:

Axiom Mediation minimizes the adversarial nature of conflicts, reducing the potential damage to reputations and minimizing the negative impact on individuals’ personal and professional lives.

You Should Contact Axiom Mediation Today!

Overall, mediation is a versatile and effective process that offers a range of benefits for resolving disputes across various contexts, from family matters to business disagreements and beyond.

January 29, 2023March 5, 2023

Arbitration – Private Dispute Resolution In Lieu Of Public Court Litigation

Virginia Arbitration - Only By Agreement

Uniform Arbitration Act

"related to" vs "arising out of"

An arbitration clause covering claims ‘relating to’ a contract is broader than a clause covering claims ‘arising out of’ a contract. McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341, 410 S.E.2d 636, 639 (1991). Contracts between parties are subject to basic rules of interpretation. Tm Delmarva Power v. Ncp of Va., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). In the absence of a clear agreement showing that the parties intended that the arbitrator decide questions of arbitrability, that question is to be resolved by the court. Waterfront Marine Constr. v. N. End 49ers Sandbridge Bulkhead Grps. a, 251 Va. 417, 427, 468 S.E.2d 894, 899 (1996) A party cannot be compelled to submit to arbitration unless he has first agreed to arbitrate. By the same token, he cannot be compelled to arbitrate a question which, under his agreement, is not arbitrable. And the resisting party is entitled to a pre-submission judicial determination of arbitrability. Doyle & Russell, Inc. v. Roanoke Hosp. Asso., 213 Va. 489, 494, 193 S.E.2d 662, 666 (1973). Nevertheless, an “arbitration award ‘must be construed liberally so as to uphold it, if possible.’” Howerin Residential Sales Corp. v. Century Realty of Tidewater, Inc., 235 Va. 174, 179, 365 S.E.2d 767, 770 (1988), (quoting Sydnor Pump & Well Co. v. County Sch. Bd., 182 Va. 156, 167, 28 S.E.2d 33, 37 (1943)).

Powers of Arbitrator:

The act empowers arbitrators to do the following:

1. issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence,
2. to administer oaths, and
3. to permit a deposition to be taken and used for a witness that cannot be subpoenaed or is unable to attend the hearing. § 8.01-581.06.

Axiom Mediation Group
105 S 1st Street, Suite A
Richmond, Virginia 23219

804-783-2002

December 1, 2019March 5, 2023

Arbitrators may issue subpoena in Virginia

The enforcement of an arbitration subpoena of a witness or the production of evidence or to compel a person under subpoena to testify is obtained by application to the court by a party or the arbitrators pursuant to Va Code § 8.01-581.06.

§ 8.01-581.06. Witnesses, subpoenas, depositions.

The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action. All provisions of law compelling a person under subpoena to testify are applicable.

On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing, in the manner and upon the terms designated by the arbitrators.

Fees for attendance as a witness shall be the same as for a witness in the circuit court.

Tom Roberts, Mediator and Arbitrator Axiom Mediation

Years of Experience in Federal and State Courts
Years of Experience in Commercial Disputes
Years of Experience as an Administrative Law Judge
Years of Experience in Mediation and Arbitration

For Arbitration in Virginia -Call 804-783-2000

December 1, 2019August 10, 2023

Arbitration – Private Dispute Resolution In Lieu Of Public Court Litigation – Only pursuant to the agreement of the parties.

Virginia has adopted the Uniform Arbitration Act, Virginia Code § 8.01-581.01, et seq. The act provides the court with power to compel or stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. § 8.01-581.02. The act empowers arbitrators to issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, to administer oaths, and to permit a deposition to be taken and used for a witness that cannot be subpoenaed or is unable to attend the hearing. § 8.01-581.06. An arbitration clause covering claims ‘relating to’ a contract is broader than a clause covering claims ‘arising out of’ a contract. McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341, 410 S.E.2d 636, 639 (1991). Contracts between parties are subject to basic rules of interpretation. Tm Delmarva Power v. Ncp of Va., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). In the absence of a clear agreement showing that the parties intended that the arbitrator decide questions of arbitrability, that question is to be resolved by the court. Waterfront Marine Constr. v. N. End 49ers Sandbridge Bulkhead Grps. a, 251 Va. 417, 427, 468 S.E.2d 894, 899 (1996) A party cannot be compelled to submit to arbitration unless he has first agreed to arbitrate. By the same token, he cannot be compelled to arbitrate a question which, under his agreement, is not arbitrable. And the resisting party is entitled to a pre-submission judicial determination of arbitrability. Doyle & Russell, Inc. v. Roanoke Hosp. Asso., 213 Va. 489, 494, 193 S.E.2d 662, 666 (1973). Nevertheless, an “arbitration award ‘must be construed liberally so as to uphold it, if possible.'” Howerin Residential Sales Corp. v. Century Realty of Tidewater, Inc., 235 Va. 174, 179, 365 S.E.2d 767, 770 (1988), (quoting Sydnor Pump & Well Co. v. County Sch. Bd., 182 Va. 156, 167, 28 S.E.2d 33, 37 (1943)).

Tom Roberts, Arbitrator & Mediator
Axiom Mediation

April 27, 2019August 10, 2023

GOOD, BETTER AND BAD MEDIATORS

Not all mediators are the same.

How do you find the best mediator in Virginia? It is unfortunate that some disputes fail to be resolved in mediation due not to the parties, but as a result of a bad mediator. Mediator Tom Roberts has experience in mediation both as a mediator and also as an aggressive lawyer representing clients in mediation. Here’s a quick conversation with Mediator Tom Roberts.

Q. Have you ever had a bad experience with a mediator?

A. Unfortunately. Three instances come to mind.

The uncommitted mediator

First – the uncommitted mediator. I encouraged one of my clients to participate in mediation. Unfortunately, the famed mediator was useless. The mediator made no apparent effort to prepare for the mediation. The mediator failed to interact with the parties prior to the day of mediation. The mediator failed to dig in with a commitment to seeking a resolution, but conveyed the notion that he might be missing his T-time for the day. His secretary would have been more skilled walking offers back and forth between the parties. Unfortunately, the parties went on to litigate for years after.

The careless mediator

Second – the careless mediator resting on her laurels. In another instance, we chose a very accomplished individual as the mediator. The trouble, she failed to listen carefully and to communicate to the opposing party the offer with the precision given to her. In this case the existence of various insurance policies available to compensate my client for losses sustained in a fire was an important factor for the opposing party to determine whether or not they should take a shaving on liabilities potentially owing by my client. The final offer given to the mediator was not accurately communicated by her to the opposing party. She announced the case had settled. However if settled in the manner announced, it would have perpetrated a fraud. Correcting the error resulted in a less advantageous result for my client.

The unskilled "certified" mediator

Third – the unskilled “certified” mediator. A mediator can hone their skills, but simply put not everybody can be an effective mediator. In this case, the mediation was court ordered with a specified pair of mediators – simply put they were a disaster and complete waste of time.

Q. What separates you from other mediators?

A. Creativity and Determination.

Fortunately, there are a number of good mediators – generally, the effective mediators become known. With nearly 40 years of experience, I strive to approach every case with the determination and creativity to enable the parties to arrive at a resolution. I enjoy meeting people from all walks of life, and love solving problems.

Q. What can you do if a mediator misbehaves?

A. There are remedies.

A mediator may be liable for misleading a party, for breaching confidentiality. However, it is not very common for mediators to be held legally liable. Be careful not to confuse a mediator’s exposing to each party their own weaknesses in their positions as a lack of neutrality. Seeking mediation services from an experienced mediator with a good reputation is your best protection against mediator misconduct or malfeasance.

Contact Axiom Mediation Group today!

Axiom Mediation Group
105 S 1st Street, Suite A
Richmond, Virginia 23219
804-783-2002

BEST MEDIATORS, COMMERCIAL MEDIATION, COMMERCIAL MEDIATOR, CONTRACT MEDIATION, EMPLOYMENT MEDIATION, EMPLOYMENT MEDIATOR, GOOD MEDIATOR, GOOD MEDIATORS, GOOD VIRGINIA MEDIATOR, GOOD VIRGINIA MEDIATORS, INSURANCE MEDIATOR, MEDIATOR IN CENTRAL VIRGINIA, VIRGINIA MEDIATORS

April 27, 2019August 10, 2023

Confidentiality in Mediation

Focus on Virginia

What is Mediation?

Mediation is a process in which a mediator, a neutral person, facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute. A skilled mediator facilitates a dynamic, structured, interactive process, using specialized communication and negotiation techniques to assists the disputing parties in resolving conflict in a “party-centered” process. A mediation focuses upon the needs, rights, and interests of the parties, the strengths and weaknesses of each party’s position, with analysis of the benefits of an agreed compromise against the uncertainty and expense of a continued adversary fight or litigation.

Is Mediation Confidential?

In order to facilitate the process of mediation, the parties need and expect confidentiality of the proceedings, inviting open communication that will not be used against any party of a resolution is not obtained. The confidentiality is ensured through both statute and by agreement of the parties. When disputes arise regarding the terms of confidentiality, the statutes of the relevant jurisdiction and the mediation agreement should be examined.

Generally speaking, all memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation, which relates to the controversy being mediated, including screening, intake, and scheduling a mediation, whether made to the mediator, mediation program staff, to a party, or to any other person, is confidential. However, a written mediated agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing.

What Are The Exceptions To Confidentiality in Mediation?

Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the mediation agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the mediator or mediation program and a party to the mediation for damages arising out of the mediation, (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against the mediator by a party to the mediation to the extent necessary for the complainant to prove misconduct and the mediator to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-581.26 in a proceeding to vacate a mediated agreement, or (ix) as provided by law or rule. The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege. See § 8.01-581.22. Confidentiality; exceptions

Statutory Exceptions to Confidentiality in Mediation.

Settlement of wrongful death actions presents a unique speed bump in confidentiality. The Virginia Supreme Court using principles of statutory construction concluded that the specific and express terms of Code § 8.01-55 and the right of public access provided for by Code § 17.1-208 in the context of the records of court approval of the compromise settlement of a wrongful death claim override the permissive terms of confidentiality expressed in Code § 8.01-581.22. Perreault v. Free Lance-Star, 276 Va. 375, 389, 666 S.E.2d 352, 359 (2008)

Similarly, settlements with the Commonwealth of Virginia is another speed bump in confidentiality. Va. Code Ann. 2.2-514, which includes personal injury liens in favor of the Commonwealth under Va. Code § 8.01-66.9, states expressly, “No settlement under subsection A shall be made subject to a confidentiality agreement that prohibits the Commonwealth, a state agency, officer or employee from disclosing the amount of such settlement except where such confidentiality agreement is imposed by a court of competent jurisdiction or otherwise is required by law.” See Chan v. Commonwealth, No. CL15000716-00, 2015 Va. Cir. LEXIS 210, at *7 (Cir. Ct. July 28, 2015).

Evaluation or Therapy Is Not Mediation.

The court will not permit exclusion of evidence under the label of mediation where a subject-matter expert like a psychologist, therapist, or social worker) is sought out for the purpose of giving advice and counsel with respect to a particular problem, especially the session involved advice from the mental health professional, the session was entered into as an evaluation or as therapy, and there was no formal agreement to mediate and other indication that the parties and the therapist considered it a mediation. See Anderson v. Anderson, 29 Va. App. 673, 683-84, 514 S.E.2d 369, 374-75 (1999).