FINRA statistics show that historically approximately 90% of all FINRA securities arbitration claims settle in advance of a final hearing. Fifty-three percent of these are settled directly among the parties with the assistance of counsel, and supposedly, fifteen percent through mediation. These statistics may be misleading in that many cases settle with the assistance of mediation, and the use of a mediator outside of the auspices of the FINRA Office of Mediation and Arbitration.
The difference between Arbitration and Mediation may be confusing, especially among lawyers. Arbitration before FINRA is an evidentiary hearing where a binding and virtually unappealable award or verdict is rendered by one, or up to three, supposedly disinterested arbitrators. Unlike the concept of “arbitration,” within the traditional court system, where the parties can reject the arbitrator’s decision and demand to go trial, in FINRA securities arbitration, the arbitration hearing is your trial. Chances are that one party is going to be unhappy about the outcome.
Securities mediation, however, is the ability, or prospect, of resolving investor related claims, typically pending before FINRA, through the use of an experienced and neutral securities mediator. Securities mediation is confidential and it is non-binding on the parties. Anything said during the course of a mediation, including the existence of the mediation itself, is confidential and cannot be used or introduced generally by any party for any purpose at a final hearing or trial.
Lawyers are advocates. However, overzealous advocacy sometimes presents an impediment to the fair and equitable resolution of investor claims, often, honestly, by both parties. Arbitration, and the outcome of any securities arbitration or investor claim includes risk for both parties, the claimant and respondent. FINRA securities arbitration panels often render awards that fail to appreciate the relevant evidence. Securities mediation avoids these risks and uncertainties.
Mediators may act as “facilitators,” whereby they negotiate, or are the emissaries of the trading of the parties’ respective monetary offers and demands to settle a case. Mediators may also be “evaluative” in that they inform the parties what the mediator objectively thinks or perceives as a fair and equitable settlement of a case. Most mediators, including most experienced securities mediators, are both facilitative and evaluative mediators.
The FINRA Office of Mediation and Arbitration has a pool of trained mediators, from which the parties submitting an arbitration to FINRA can chose or rank to conduct the mediation of their securities arbitration claims through FINRA. Participating securities mediators through FINRA, particularly during mediation settlement month (in October), offer their services at a reduced rate. Parties submitting their cases to mediation, under the Code of Arbitration Procedure, are not charged the hearing costs that would otherwise attach to a continuance or postponement while the parties seek to mediate their securities claim.
However, generally, in the United States, which varies by region, there are less than twenty securities mediators that mediate more than 80% of FINRA securities arbitration cases. Many, if not all of these mediators travel across the country, or within a large geographical area, and are well known to the experienced practitioners. For these mediators, their experience and objectivity are their “stock-in-trade,” and their opinions or observations are generally well respected by both parties.
Experienced securities mediators have the patience to listen to investors and their counsel, and the they also have credibility, generally, with opposing counsel for the securities broker-dealer, or their insurers, to candidly assess the merits of the claims and defenses associated with these claims. As of even date, the top, or most popular, four mediators in the United States have settled more than 20,000 cases. FINRA’s securities mediator success or settlement rate is also historically above 90%.
The Mediation Process
Securities mediations are generally completed in one day. The parties will generally send a confidential mediation memorandum to the securities mediator in advance of the scheduled mediation. The confidential securities mediation memorandum will contain a recitation of the perceived facts in the case, authorities including the legal theories behind the relevant claims and defenses, and the most compelling documentary evidence in the support or in the defense of these claims. Securities mediators will generally not disclose these materials, including their content, to opposing counsel without express permission.
At the beginning of any securities mediation, the mediator will generally conduct a joint session with the parties and their counsel to introduce everyone, and to agree upon the ground rules often embodied in a written mediation agreement. Traditionally, the parties are invited to make “opening statements,” as one would do in court or at a final hearing, as to what the evidence and testimony will show, and why the investor is or is not entitled to relief. Opening statements at a securities mediation are useful for two reasons. First, it is generally the only time, in advance of a final hearing where counsel will be able to speak to, or address directly, the other party, with the facts and issues, without the filter or advocacy of the facts by opposing counsel. Second, opening statements at a securities mediation provide the parties an opportunity to see their lawyers advocate for them. However, most, if not all, of the more experienced securities mediators have abandoned the use of opening statements at securities mediations as it tends to alienate or unduly entrench the parties or their respective counsel.
In any event, with or without opening statements at a securities mediation, the mediator will meet privately with each party and their counsel to discuss the facts and relevant evidence, and sometime during the process will invite the parties to make demands and offers (as opposed to offers and demands), which will go back and forth between the parties via or communicated through the securities mediator.
Often in response to these demands and offers, with the permission or direction of the other party, a securities mediator may show the client and their counsel important or relevant documents that may persuade a party to consider, or even re-consider the substantive merits of their claims or defenses. In the context of securities mediation, lawyers are, or at least should be, both advocates and advisors. Purportedly, in a successful mediation, both parties are unhappy. One party paid more than it wanted, and the other party took less than they thought they were entitled. For any party, a bad or marginally acceptable settlement is better than a terrible award. Five out of six times, or 84% of the time, there is no harm when playing Russian roulette. However, 16% of the time, someone might not like the outcome. Litigation involves risk.
Control Your Own Destiny
With respect to securities mediation, other than the investment of the parties’ resources,there is no risk. In a securities mediation, at the end of the day, more than 90% of all cases settle or are resolved, and the risks, costs and uncertainties associated with adjudication by a FINRA securities arbitration panel is avoided.
Guiliano Law Group
Our practice is limited to the representation of investors. We accept representation on a contingent fee basis, meaning there is no cost to you unless we make a recovery for you. There is never any charge for a consultation or an evaluation of your claim. For more information, contact us at (877) SEC-ATTY.
For more information concerning common claims against stockbrokers and investment professionals, please visit us at securitiesarbitrations.com. To learn more about FINRA Securities Arbitration, and the legal process, please visit us at securitiesarbitrations.com
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I had questions and sought a consultation regarding what I believed to have been inappropriate treatment by my brokerage firm. He took the time to give me a clear understanding of what was involved and clearly described next steps to resolve the matter. He did this in a concise, complete and friendly manner. Although in the scheme of things my matter was small. From what I have seen, if I ever had need of a securities lawyer or was asked to refer one to a friend, Nicholas would undoubtedly be the first name I would mention.Keith (Avvo)"Upstanding"
I had a problem with a dishonorable Financial Adviser! So I contacted Mr. Guiliano to see what I could do. Nick said I can't very well charge you for something you can do on your own! Then proceeded to tell me what to do. Because of the short amount of time and my untrustworthy financial adviser's not crossing tee's and dotting I's my life's savings is in the process of being transferred into 3 separate accounts. One's that will work best for me. Instead of one account that kept my money out of my reach! You will have a hard time finding a more upstanding Attorney then Mr. Guiliano!Walter (Avvo)"Successful in Achieving Results"
I was the one who contacted Nick through his website as my ex-wife had little or no knowledge of investments, and depended completely on the advice of the investment firm. Without specifics I can say that Nick (and his wife) were not only successful in achieving results in the case, but in the process were all that one could expect (and more) as shown in my overall ratings above. I would highly recommend him.Joe S. (Avvo)Excellent Attorney!
Nick represented my wife and I in a recent lawsuit. He was the best attorney we have ever used! Communication was great, he kept us updated regularly, he explained everything in great detail, gave us all our options, and most importantly we always felt he represented our best interest throughout the entire process. We would highly recommend Nick!Brian F. (Avvo)"One In A Million"
Nicholas is extremely knowledgeable regarding many facets of the sometimes complicated securities business. This comes from his first hand experience in the business prior to his decision to practice law. Nick is also very dedicated to staying abreast of the ever changing environment that is so prevalent in the investment world. Combine that with his drive and determination to get things done and you have one in a million!!!Anthony S. (Avvo)"Very Good To Work With"
My case was taken on a contingency basis. Even though it lasted about two years, the Guiliano law firm kept in contact with me, continued to research the case and brought it to a successful conclusion. They were very supportive of me in my first such experience and were very good to work with.Nancy T. (Martindale-Hubbell)"Man Of Integrity"
Nick is an incredibly decent Atty. He's a man of integrity, fairness, and honesty. You could see that it's wasn't just me who noticed, it was opposing counsel, at the end of the Zoom! I'm completely impressed with Nick and will keep him in my prayers. Thanks again!Paula (Martindale-Hubbell)"Fights for his clients like a bull dog"
I contacted Nicholas Guiliano for my 90 year old mother, who lives in Oregon to assist her in recovering from an unscrupulous financial manager who talked her into investing in some very high risk and speculative securities to reap high commissions. Mr Guiliano worked very hard to recover what he could for my mother. He is the best and fights for his clients like a bull dog to uphold their rights and protect their interests. I highly recommend Mr Guiliano and his firm when it comes to securities issues.Robert (Google Business)"Finest Litigation Attorneys"
I have been a Corporate Counsel for over 30 years having worked with Banks and large public companies. Nick is one of the finest litigation attorneys in the country.Anthony P. (Google Business)"Best Of The Best"
I have employed Nick Guiliano personally and on behalf of my clients in the past. Nick is absolutely the best securities lawyer in Philly if not the country. The best of the Best!Ken S. (Google Business)"Awesome Results"
I would like to take this opportunity to express my sincere congratulations for your awesome results. I want to acknowledge my appreciation and respect for their splendid professionalism and knowledge you have shown in handling the laws (previous and present), for arbitration over fraud litigations.Ben S. (Google Business)"More than most lawyers"
Mr. Guiliano is highly accomplished securities lawyer. He helped us secure a wonderful result in case where my husband and I lost almost all our lifesavings. He is also high compassionate, and did more than most lawyers have ever done for us, as he seems that he cares.Mary S. (Avvo)"Somebody you want on your side"
Personable and professional, he is the one to go to when investors are defrauded by Brokerage houses and Investment banks. Somebody you want on your side when things go wrong. He takes personal interest in every case and tries his best. Although I could not recover all my losses due to Fed/SEC action which was beyond his control, I would give Mr. Guiliano full marks on every count. He even worked with my accountants to help me write off losses due to fraud.Ashok N. (Avvo)"Superb Representation"
Mr. Guiliano (Nicholas) represented my mother and I in an investment case where it appeared the agent was preying on elderly people and steering them to improper investments to reap commissions. Mr Guilano did an excellent job of preparing the case and representing us. Although the case settled out of court, it was the best outcome expected for several technical reasons out of his control. He always kept us informed and provided sound recommendations. I would not hesitate to recommend Mr. Guiliano for any investment related case.Bob W. (Avvo)"Recommend Him Strongly"
I used Mr. Guiliano for a investment fraud case and he did a very good job. I got a good deal of my money back that had been lost due to risky investments I was put into by a prominent company. It was not a really big case, yet Mr. Guiliano was interested and responsive and kept on top of things for me. I would recommend him strongly.Anne H. (Avvo)"His Ability And Advice Paid Off"
We called Mr. Guiliano after reading his article in Forbes magazine. Although we though the statue of limitations might have run out on our case, we were thrilled when he took our case. Against the odds, he was able to get a settlement for us. He kept us informed and advised us on the proper course of action. We always felt confident with his ability and advice and it paid off. Highly recommend.Cris (Avvo)"Ability To Think Outside The Box"
Nick Guiliano came highly recommended to me and I was very fortunate that he agreed to take my case. His knowledge of the law and his ability to think outside the box amazed me more and more as my case progressed. His aggressive style and total dedication to me and my case gave me the confidence that we were going to prevail and we did. He is one of the few Attorneys that does not finish his work at end of the day. He was always thinking of ways to use his expertise and knowledge on my behalf. On a personal note, he is a very down to earth guy who makes you very comfortable and at ease. He gave me the ability to sleep at night knowing that my case was in his hands. I will always recommend him without any reservations. In my book he is “the Best”Jerry V. (Avvo)"Successful in Winning"
Nicholas Guiliano was successful in winning a case against one of the firms where I had invested. I had a safe investment until a young eager stock broker took over my account and slowly kept putting my money in risky stocks, all while I was on disability. Nick was able to get me a portion of my money back within 2 months. He always was available to speak, and very courteous. I am so grateful to have found Nick. Thank you Nick!Jill I. (Avvo)"Absolutely Fantastic"
Nick represented me when a stock broker took advantage of the money I had in my portfolio. He did an unbelievable job because most people thought I did not have a leg to stand on. He really knows his field. I am really thankful that I met Nick because he did a phenomenal job. I would highly recommend him.Theresa S."Dependable and Accessible"
Philadelphia has lived up to it's reputation as having the best attorneys in the Country. I had been told I had a problem of having a Hedge Fund investment. He went to a lot of time and trouble to not take my case. What I really appreciate is his work ethic. He was very kind to me not only with the generosity of his time, but with his words of support. No civilian, like myself, wants a lawsuit but if I ever needed one, it is Mr, Guiliano who I would call upon to represent me. He is a good man.Kathleen (Avvo)"Incredibly Resourceful"
Nick was incredibly resourceful and professional. His understanding of securities and investment fraud is unparalleled. He is indeed connected with all the powers to be , and is able to provide intellectual and cogent insights. He is tenacious in fighting for his clients, and will never relent. I was able to follow his recommendations and am glad I did.Mark C. (Avvo)"We are so very grateful"
My husband and I were lucky to find Nick after losing a substantial amount of money due to poor investing from a prominent company. He made us feel at ease right away and was always accessible for questions and concerns. Nick and his team were wonderful with gathering up all the pertinent information needed for our case, constantly in contact with us, answering all of our questions, which helped to make the process a lot less stressful. We are so very grateful to have had The Guiliano Law Firm represent us and the fact that they did it on a contingency basis made it possible to follow through. If not for them, we would never have been able to pursue this, financially or emotionally.Stacey B. (Avvo)
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