Why mediate? What is mediation? Why do it in FINRA arbitration?
Simply put, mediation is a voluntary process by which disputing parties agree to negotiate with a professional referee – a neutral mediator – to try to settle a dispute. Settlement means resolving a case before incurring further time, costs, and the risk of losing when taking a case to trial or arbitration hearing, where a judge, jury or arbitrator makes the final, binding decisions.
I represent investors in FINRA arbitration and in court, in disputes with the financial industry. Securities claims against stockbrokers and their firms are typically litigated in FINRA arbitration because there are pre-dispute arbitration clauses in just about every brokerage account agreement. FINRA rules also provide that an investor may always choose to file claims against a broker or brokerage firm in FINRA arbitration. FINRA IM-12000.
Arbitration is very different than mediation. State laws provide the legal framework for arbitration as a binding alternative to trying a case in court. An arbitration hearing may seem like a mini-trial: you have one or more arbitrators in place of a judge and jury, you have opening and closing statements, present witness testimony and evidence, and submit briefs on legal issues. At the end of the the process, the arbitrator or panel of arbitrators issues a binding arbitration decision and award. A party may take that arbitration award to a court for confirmation as a judgment. Once the award is entered in the court record as a judgment, the winning party is a judgment creditor and may use that state’s creditor laws to enforce and collect the award. FINRA arbitration is a specialized forum with its own procedural code and discovery rules – a forum I know very well.
Mediation, on the other hand, is an entirely voluntary process, and a mediator makes no binding decisions that the parties must follow. Parties can choose to mediate at any time – before a case is filed, or anytime during the case, with strategic decisions when mediation may be the most successful, such as after the exchange of discovery in a case. State law provides that settlement discussions in the context of mediation are confidential and generally may not be used as evidence in a case. So, if a mediation session does not result in a settlement agreement, neither side may use what was said or settlement offer dollar amounts exchanged during the mediation against the other side in the related court case or arbitration proceeding. That’s because we want to encourage good faith negotiation during mediation.
If the parties come to settlement agreement during the mediation, the mediator, or one of the parties, will typically put at least the material terms of the agreement into writing while the parties are still present. A good mediator will encourage this: after hours of back-and-forth negotiation, no one wants to go home and get a message that the other side has “buyer’s remorse,” or denies coming to an agreement, and then have to litigate to enforce the settlement.
For my clients in FINRA arbitration, I often recommend trying a mediation session. Why? The risks are small, and it can be a smart investment. The parties typically share the cost of hiring a mediator, it’s non-binding, and we prepare as if preparing for the arbitration hearing. I use the time to refine my client’s case, learn about the strengths and weaknesses of respondent’s case, and have a kind of dress rehearsal of testimony – all while still negotiating in good faith towards a settlement. So, even if a mediation does not immediately result in settlement, we are all better prepared for the hearing.
In a FINRA arbitration case, you want a securities attorney to help you select a FINRA arbitration panel and steer your case through the process, from legal analysis and damages calculations, through filing the statement of claim and discovery, to representing you at the hearing. When mediating a securities case, you want a securities attorney experienced in mediation to help choose a mediator and stay by your side with analysis of the situation and recommendations during negotiation. For both arbitration and mediation: these are not trials in courtrooms. The rules, and the opportunities, are different.
If you have concerns about how your money is being handled by your financial professional, or concerns that you or a loved one might be the victim of financial exploitation, call me at 1-800-647-8130. Consultations are free, and confidential.
Darlene Pasieczny’s practice at Samuels Yoelin Kantor LLP focuses on all stages of corporate and securities law issues, securities litigation and FINRA arbitration, fiduciary litigation in trust and estate disputes, and complex civil litigation. Darlene’s practice includes representing investors nationwide in investment disputes through FINRA arbitration.