PERSONAL INJURY CASES

Tort litigation negotiations are generally zero-sum in character, in which it is seldom possible to explore underlying interests, and this is so for several reasons. The majority of personal injury cases are taken on the plaintiff's side on a contingency fee basis. The parties are nearly always complete strangers. The only interest the defendant has is in concluding the matter with the least expense possible. That means that the positions of each side are diametrically opposed.

Negotiation in these cases always involves calculation of risk. Some people are sophisticated in their estimation of risk, while others do it fairly unconsciously, but in calculating an acceptable settlement amount, everyone takes into consideration the possibility of doing worse at trial. This is because damages for pain and suffering are hard to calculate and jury verdicts differ widely.

In order to avoid the uncertainty of a worse outcome, each side is often prepared to buy a kind of insurance policy by paying a premium intended to free them from the risk of a worst result. The difference between what the plaintiff thinks a case is worth and the amount the plaintiff is willing to accept may be thought of as an insurance premium. The difference between what the defendant thinks a case is worth and the amount the defendant is willing to pay may likewise be thought of as a premium.

Mr. Tessier is guided by the core principle that all parties deserve and are entitled to have a full opportunity to be heard. Often this requires space to be made for every voice. Negotiation has a much higher chance of success following this core principle.

During negotiations, Mr. Tessier will play whatever role is necessary to move the process forward. Normally, game theory comes into play, and in these circumstances each side benefits from reflections by the mediator as to how each move may be received and responded to by the other side.

BUSINESS DISPUTES 

When disputes erupt between strategic partners, suppliers, or competitors, a skilled mediator can save businesses time, money, and energy in the ADR process. We help businesses settle their disputes by focusing upon critical issues, interests and needs of the participants without the tremendous expense of scorched earth litigation. Because many business disputes involve parties who will continue to do business going forward, whenever possible, we assist the parties in crafting a clear and concise framework to resolve future disputes. Mediation offers creativity and problem solving that litigation and arbitration do not.

CONSTRUCTION CASES

Construction cases are essentially breach of contract cases made complicated by the presence of numerous parties including owners, developers, general contractors, sub-contractors, insurance carriers and sureties, and experts retained for the litigation. While complex issues of law may arise, what is often needed is expertise in managing the multiple fact issues and multiplicity of parties, since each case is an umbrella under which many mini-cases are assembled and often must be separately resolved.

In tort cases on job-sites, more complex issues present for both sides. For the plaintiff, there is often a plaintiff-in-intervention or lien holder involved. The interplay of law and facts and the workers compensation claim being litigated in conjunction with the third party tort case require a mediator with substantial experience in the area trusted by all sides. For the defense, issues of indemnity and additional insured rights and obligations are often in play. A robust dialogue amongst all stakeholders is often the first and most important step in the mediation with these issues. For an analysis of the Crawford case co-written by Mr. Tessier, which capsulizes some of these issues, click here.

HOMEOWNERS DISPUTES AND ENVIRONMENTAL CLAIMS

These can take many forms. The HOA may be in dispute with an association member or a contractor or an insurance carrier, or a combination of these. Legal issues are commonplace and personality conflicts are the rule rather than the exception. A firm but delicate touch coming from a neutral place can often overcome months, even years of tangled relationships, resulting in resolutions that everyone can live with. The landscape of these type of cases is being impacted by policy exclusions and case law concerning causation.

PARTNERSHIP DISSOLUTION

Whether a personal or business relationship, these are emotionally difficult as well as often involving complicated legal issues.

REAL ESTATE CASES

Often significant legal issues arise that can have an important effect on the outcome of the dispute. While the mediator does not need a treatise, an outline of the legal theories is always helpful together with any particular cases on which you rely so that the mediator can read them before the mediation. Whereas in PI cases the facts are often wildly disputed, in real estate matters this is not so often the case but the interpretation put on those facts by the parties is greatly at odds. Furthermore, people are extremely attached to their real estate, in an emotional way and by the time this gets into a mediated dispute, all participants may be quite angry and extremely stubborn, often against their own best interest. The mediator can be helpful in cooling passions and in helping the participants arrive at a rational resolution to the benefit of all concerned.