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. As a career jurist, Graham places special weight on parties’ ability to achieve a full and fair hearing. He believes that ADR plays an important role in the efficient administration of justice. Parties value Justice Graham’s careful consideration, quick wit, and his full and frank assessment of the important issues. The exploration of these issues during pre-session discussions with each party is an important step the judge utilizes to asses any impediments to settlement before the mediation.
In addition to mediation and arbitration Justice Graham is also available for Neutral Analysis work with Title IX subject matters. He has experience in reviewing Universities current policies and procedures, with a focus on the 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. He represented a large public utility in several labor arbitration matters before the National Labor Relations Board and the First Circuit, served as assistant counsel defending a large Boston charity against a class action sex discrimination claim and also assisted in the defense of the founder of a large Boston mutual fund against charges of taking advantage of a corporate opportunity.
In addition, Justice Graham 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.
Justice Graham also 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 has adjudicated, mediated or arbitrated a wide variety to matters including:
- Administrative Law
- Neutral Analysis
- Civil Rights
- Entertainment & Sports
- Higher Education & Title IX
- Business/Commercial: Handled product liability, breach of contracts and indebtedness; discovery disputes, interference with business and advantageous relationships, defamation, injunctive relief, premises liability, partnerships/joint ventures, fraud, unfair and deceptive business practices, breach of the implied covenant of good faith and fair dealing, covenants not to compete and non-solicitation, consumer protection, unjust enrichment, quantum meruit.
- Employment/Labor: Handled breach of employment contract Title VII, discrimination, employment-related torts, class action, defamation, wage and hour claims, whistleblower statute , labor-management, sexual harassment, hostile workplace, retaliation, wrongful termination, contract disputes, employee benefits, OFCCP/affirmative action, non-competition agreement, non-solicitation agreements, emotional distress, forfeiture of pension, strikes by public employees.
- Personal Injury: 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: 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.
- Construction: 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: Handled indemnification and subrogation matters, Gen. L ch. 146D claims as well as unfair settlement practices cases. Handled numerous insurance coverage matters involving first party and third party claims.
- JAMS Appellate Services: Justice Graham has provided confidential case review, suggested edits to counsels’ Appellate brief, and 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.
- Neutral investigation:
- 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, 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.
- Available to resolve disputes remotely through a number of videoconferencing options
- Published decisions relative to ADR include:
- 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).