Originally From:
Securities Arbitration: Practice and Forms - Looseleaf
Securities Arbitration: Practice and Forms - Electronic
CHAPTER 12 - Preview Page
Mediation: An Alternative to Arbitration
§ 12.01 Introduction: What Is Mediation?
Since the mid 1980s, mediation has become an increasingly popular form of alternate dispute resolution. It is a non-binding, voluntary, informal negotiation, facilitated by an independent neutral third-party known as a “mediator.” Since mediation, like arbitration, is a voluntary procedure, all parties to the dispute must agree to participate in the process. In fact, the voluntary aspect of mediation is one of the key elements that makes mediation successful. While arbitrators and judges decide, a mediator recommends, and it is up to the parties to embrace the outcome.
Just as arbitration is less formal than litigation, mediation is less formal still. There are rarely pre-mediation pleadings or discovery, although experienced practioners will use “Mediation Statements” as a method to familiarize the mediator with the facts and legal theories. Mediation sessions generally do not entail a hearing, witnesses or the presentation of evidence. Moreover, mediation sessions are private, and there are no court reporters or other recordings. The mediator does not issue an opinion or make an award. Accordingly, there is no written decision at the close of a mediation, regardless of whether or not a settlement has been reached.
Chapter 12 - Mediation: An Alternative to Arbitration
§ 12.01 Introduction: What Is Mediation?
§ 12.02 History of Mediation in the Securities Industry
§ 12.03 The Benefits of Mediation
§ 12.04 The Mediation Process
[1] Initiation
[2] What Kinds of Cases Should Be Mediated?
[3] When Is the Right Time to Mediate?
[4] Selecting the Mediator
[5] Pre-Mediation Activities
[6] The Mediation Session
[7] The Settlement Stage
§ 12.05 The Future of Mediation
W. Reece Bader is a Partner in the Frankfurt office of Orrick and is a member of the Securities Litigation/Regulatory Group. Prior to moving to the Frankfurt office in 2008, Mr. Bader was located in the firm's Paris, Washington, D.C, Silicon Valley, New York and San Francisco offices. He has concentrated his practice in the area of securities and futures litigation since 1970. He has extensive experience, including substantial jury and non-jury trial work in broker-dealer litigation including securities, commodities and public finance. He also handles appellate matters and has represented the Securities Industry Association as amicus curiae in broker-dealer litigation. He has acted as lead defense counsel in complex class actions involving initial public offerings and derivative suits, both on behalf of underwriters, companies and officers and directors. He also regularly represents broker-dealers and individuals in both SEC and SRO enforcement actions. Mr. Bader has argued cases before the D.C., Second, Third, Ninth and Federal Circuits. He serves as an arbitrator for FINRA, NYSE and NFA, and the Center for Public Resources (Distinguished Neutrals Panel). He is a former member of the National Arbitration and Mediation Committee of the NASDR, past Co-Chair of the Securities Litigation Committee, and past Co-Chair of the Alternative Dispute Resolution Committee of the ABA’s Litigation Section. Mr. Bader is a frequent lecturer and panelist for such organizations as the Practising Law Institute, ALI/ABA, FINRA and the Securities Industry and Financial Markets Association.
