Hon. R. Malcolm Graham (Ret.) brings over 30 years of judicial experience to his JAMS practice, including a decade as Associate Justice of the Massachusetts Appeals Court.  In addition to mediation and arbitration, Justice Graham is also available to serve as a neutral evaluator, including mock trials and arguments, as well as a facilitator and adjudicator. He has significant experience with Higher Education and Title IX matters. He has reviewed universities’ policies and procedures, assisting schools to develop systems for handling and responding to complaints of discrimination, harassment or abusive conduct.

Prior to his appointment to the bench, Justice Graham worked with the firm Peabody Brown Rowley and Storey where he specialized in labor arbitration, administrative law, and litigation.  Justice Graham played a key role in the creation of one of the nation’s largest and most successful Minority Business Enterprise Set Aside Programs for the Massachusetts Port Authority’s repair and construction of the runways of Logan Airport.   

Justice Graham approaches each matter that comes before him thoughtfully and works closely with the lawyers and parties involved to design a process that suits the needs of that specific dispute. He believes that ADR plays an important role in the efficient administration of justice and places special weight on parties’ ability to achieve a full and fair hearing.

ADR Experience and Qualifications

Representative Matters

• Higher Education & Title IX
• Justice Graham has received Title IX training from several universities
• Managed Title IX procedural events as a college and university external Hearing Officer
• Facilitated Title IX issues for a large East Coast University:
• Completed Survey of racial attitudes on campus
• One program became a full-scale look at multiple sports teams and administrative offices
• Facilitated and mediated issues arising out of the termination of a university’s President/Chancellor
• Set up a procedure to also deal with other problems in the future
• Served on the Appeals Board for a grievance raised over a Free Speech issue on campus
• Appellate
• Served as part of a live mock Appeals Court panel for a case involving a complex asset transfer agreement for the sale of respirators and claims of exposure to silica, coal dust, and construction site particulates
• As a neutral evaluator, provided confidential case review in an appellate matter
• As a neutral evaluator, reviewed and provided comments to counsels’ appellate brief
• Neutral Investigation
• Facilitated and mediated communication process between large city community and major power company over location of power substation and necessary improvements
• Conducted investigation into racism at a large university resulting from complaints brought by former and current student athletes against a coach
• Justice Graham reviewed university systems, climate, and the culture of handling complaints, and recommended actions and changes, including those related to personnel
• Helped provide the campus with a thorough and objective look at what occurred, and what information could be used to make improvements
• Worked closely with the Title IX administrative coordinator
• Made recommendations, which were implemented, on changes to the college's Title IX disciplinary hearing procedure
• Business Commercial
• Arbitrated a number of business/commercial disputes involving issues such as breach of contract, defamation, covenants not to compete, consumer protections, unjust enrichment, and non-solicitation
• Mediated a breach of contract dispute involving the purchase of fine art which involved allegations of lost commissions and counterclaims of unfair business practices 
• As a litigator, assisted in the defense of the founder of a large Boston mutual fund against charges of taking advantage of a corporate opportunity
• Civil Rights
• Mediated a case against a city for the alleged violation of the constitutional rights of an individual for an illegal strip search by police
• Mediated a matter between a corporation and a local non-profit to facilitate the company ameliorating the negative impact to the community of a proposed construction project which faced significant opposition from the neighborhood and local politicians 
• Employment Law
• Arbitrated a number of breach of employment contract matters, wage and hour claims, Title VII discrimination, sexual harassment, hostile workplace, retaliation, wrongful termination, unpaid commission, employee benefits, ADA violations, and whistleblower cases
• Mediated a wrongful termination dispute in which an executive assistant alleged a C-Suite employee of racial discrimination 
• Mediated a harassment matter which involved claims of hostile work environment, retaliation, negligent hiring, retention, and supervision as well as false imprisonment, assault and battery 
• Mediated a number of wrongful termination disputes against a variety of employers ranging from multinational companies to city governments
• While on the bench, presided over many employment cases including those involving employment-related torts, class action, defamation, labor-management, OFCCP/affirmative action, non-competition agreement, non-solicitation agreements, emotional distress, forfeiture of pension, strikes by public employees
• As a litigator, represented a large public utility in several labor arbitration matters before the National Labor Relations Board (NLRB) and the First Circuit 
• As a litigator, served as assistant counsel defending a large Boston charity against a class action sex discrimination claim
• Personal Injury
• Arbitrated a premises liability dispute involving and employee that was injured by an allegedly negligently installed cabinet 
• While on the bench, handled numerous personal injury claims involving product liability, slip and fall, premises liability, dog bites, serious personal injury at construction sites, automobile injuries, snow and ice, Torts Claims Act, workers’ compensation, and multiple medical malpractice claims
• Real Property
• While on the bench, handled breach of purchase and sales agreements, specific performance, subdivision control, approval not required, groundwater discharge permits, zoning, special permits, standing, timeliness of appeal, easement, right of way, title by prescription, adverse possession, absolute foreclosure, interpretation of lease, summary process, registered land, evictions, wetlands act, right of first refusal, Gen. L. ch. 121A, abatement of taxes, mechanic’s, lis pendens, petition to partition, infectious invalidity
• As a litigator, represented several real estate developers in the successful formation of urban redevelopment companies under M.G.L. c. 121A created to eliminate blighted open or substandard areas of the city by acquiring the properties, then rehabilitating the properties or constructing new safe residential, commercial industrial and recreational buildings
• Construction
• Arbitrated a matter between a subcontractor and a general contractor involving project delays, change orders, and work outside the scope of the contract
• Handled a wide variety of construction litigation matters including construction defects, major construction site accidents, cost overruns and delays, public construction projects, general/subcontractor disputes, hidden or undisclosed conditions, construction and performance bonds, zoning, variances, special permits
• Insurance
• While on the bench, handled indemnification and subrogation matters, Gen. L ch. 146D claims as well as unfair settlement practices cases
• While on the bench, handled numerous insurance coverage matters involving first party and third-party claims
• Published decisions relative to ADR
• Massachusetts Highway Department v. Perini Corp., et al., 83 Mass. App. Ct. 96 (2013)(civil action challenging arbitration awards with respect to public agencies overseeing the Central Artery/Tunnel Project (Big Dig)
• Falmouth Police Superior Officers Ass’n et al. v. Town of Falmouth, 80 Mass. App. Ct. (2013)(arbitral question, collective bargaining, grievance procedure, public employment)
• Sheriff of Suffolk County v. AFSCME Council 93, 67 Mass. App. Ct. 702 (2006) arbitral award exceeded scope of authority granted)

Honors, Memberships, and Professional Activities

• Completed Virtual ADR training conducted by the JAMS Institute, the training arm of JAMS 
• Member, Massachusetts Superior Court Alternative Dispute Resolution Committee, 2000-2004
• Recipient, Honorary Doctor of Laws, New England School of Law, 2004
• Chairman, Board of Trustees, New England Sports Museum, 2001-2004
• Member, Executive Committee of the Massachusetts Judges Conference, 1992-2001
• Founding Member, International Judicial Exchange Program, 1997-2001 (Rule of Law Programming in the former U.S.S.R. and the Far East)
• Recipient, Massachusetts Judges Conference Award for Judicial Excellence (President’s Award), 1998
• Member, Massachusetts Superior Court Personnel Committee, 1986-1998
• Co-Author and Editor, Judicial Wellness: A Stress Management Guide For and By Judges, National Judicial College, 1996
• President, Massachusetts Black Judges Conference, 1987-1995
• Member, Advisory Board for “Citybridge,” a tuition free summer and after school academic enrichment program sponsored by the Concord Academy
• Member, American Bar Association
• Member, Massachusetts Bar Association
• Member of the Alternative Dispute Resolution Section of the Massachusetts Bar Association
• Member, Boston Bar Association
• Member, World Champion Boston Celtics (1968, 1969)
• Recipient of the 1992 National Collegiate Athletic Association College Athletes Top Six Silver Anniversary Award for athletic achievement in college for collegiate activities, baccalaureate degree, career achievement and civic accomplishments

Background and Education

• Associate Justice, Massachusetts Appeals Court, 2004-2014
• Certificate, Dispute Resolution, National Judicial College, 2009
• AEI-Brookings Institute Symposium on Critical Issues in Construction Defects Litigation, 2006
• Associate Judge, Massachusetts Superior Court, 1986-2004
• Chairman, Appellate Division, 2002-2004
• Regional Administrative Judge for Superior Court Criminal Business in Middlesex County, 1985-1997
• Associate Judge, Roxbury District Court, 1982-1986
• Presiding Judge by Designation, Middlesex County Superior Court, Civil Part, 1983, 1984, 1985
• Of Counsel, Budd, Reilly and Wiley, Boston, MA, 1981-1982
• Associate, Peabody & Brown, Boston, MA, 1974-1981
• J.D., Boston College School of Law, 1974
• Recipient, Earl Warren Legal Defense Fund Award
• Member, Boston Celtics World Championship Teams, 1967-1969
• Member, Academic All America Basketball Team, 1967
• B.S., Business Administration, New York University, 1967
• Recipient, Rudolf K. Brosius Key for Outstanding Achievement, Business Writing and Speaking