Corporate & Business Law Real Estate & Development Trusts & Estates Litigation Mediation & A.D.R.	MEDIATION & ALTERNATIVE DISPUTE RESOLUTION Increasingly, lawyers are being retained to litigate a wide range of disputes in forums other than the courtroom. This trend is largely influenced by contractual agreements whereby parties have committed to an alternative forum, but is also influenced by the desire to maximize time and cost efficiencies as well as to pursue more predictable results. We have found that these objectives are obtainable, especially if the alternative approach is carefully selected to meet the needs of the dispute in question, and the attorneys carefully plan and execute the case workup and presentation. ADR is not a cure all but is increasingly becoming a cost-effective tool for the savvy litigator to use in commercial and estate disputes. We are frequently asked to provide pre-dispute advice that not only addresses the merits of the case, but carefully scrutinizes the options available for dispute resolution, amicable or otherwise. Our pre-dispute assessment anticipates commitments of time, money, and other resources needed under each available option, other non-monetary costs (e.g., goodwill, public relations, managerial distraction, etc.), the range and relative likelihood of possible results, and the potential responses of other parties. Our experience has shown that the best option is sometimes to take no action, i.e., some battles are better left un-fought. In the event we are retained to pursue the dispute, however, our clients enter the battle with eyes wide open, ready to recognize and seize opportunities when they arise. In emphasizing a broad-based review and analysis at such an early stage, we dramatically increase the efficiency and effectiveness of our case preparation and presentation, and are better able to focus on achieving a pre-trial resolution to the client’s advantage. There are numerous forms of ADR and each form has unique advantages and disadvantages and particular handling and preparation requirements. Whichever method is used, tailored and specialized handling is required to ensure the best results. Some examples of available ADR approaches follow: Arbitration This is a general term describing an alternative resolution process that comes in many similar but functionally different forms. A sampling of these forms includes the following: Baseball Arbitration: In this form of arbitration, the plaintiff and the defendant each separately submit a “final offer” to the arbitrator. The arbitrator chooses between the offer and the demand presented based upon the arguments heard. It is called “baseball arbitration” because it was long used to resolve disputes between baseball players and teams. Bracketed or High-Low Arbitration: An arbitration proceeding whereby the parties agree to “bracket,” or limit the possible range of damage awards. The plaintiff agrees to accept not less and the defendant agrees to pay not more than agreed-upon sums. If the arbitrator’s demand award falls within the agreed-upon sums, the arbitrator’s decision is binding. If the arbitrator’s decision is higher than the ceiling or lower than the floor agreed to by the parties, damages are limited or increased respectively in accordance with the agreed-upon bracket. Med-Arb Combination/Sequence: The parties agree to mediate their dispute and, if unable to settle, they participate in binding arbitration using the same neutral. Single or Multi-Panel Arbitration: Most multi-arbitrator panels consist of three arbitrators. While all three can be “neutral,” the parties often agree to allow one party arbitrator for each party, plus one neutral who serves as the chief arbitrator. Mediation While there are regional differences in the application and understanding of “mediation,” it is generally accepted as a voluntary non-binding process wherein a neutral mediator seeks to facilitate an amicable resolution. Depending upon the dispute and relationship between the parties, appropriate variations are available such as the Med-Arb process discussed earlier, Evaluative Mediation, Expert Mediation, and others. The advocate must be aware of and comfortable with each of these options to adequately advise the client of the approach most appropriate to the particular dispute and parties. Discovery Master: This neutral third party assists with disputes that are legally or administratively complex. The Discovery Master or Special Master (another term) assists in designing case settlement options and may mediate specific issues in a case or group of cases. Masters may be court-appointed or selected by the parties. Mini-Trial: A highly structured, formalized, and evaluative mediation process in which the parties cede a great deal of procedural control in order to reframe the dispute from the context of litigation to the context of a business problem. It requires the participation of non-legal party representatives with settlement authority who sit as a panel with the neutral. Neutral Evaluation: A non-binding process in which the parties to a dispute retain a neutral to provide an evaluation based solely on the merits of the case. Neutral Fact-Finding: Used to help resolve a disputed technical issue, this may be a stand-alone, non-binding process, or it can be part of a larger, non-binding process. Private Judge: A private trial conducted by a former judge and is most similar to a conventional trial in that judgment may be appealed for errors of law or as against the weight of the evidence. Summary Jury Trial: A highly structured, formalized, and evaluative mediative process in which a private “jury” is assembled to hear the case. The jury decision is non-binding, and mediation proceedings typically follow. Many of these approaches can be and often are combined. Each approach presents the advocate and his client with procedural, evidentiary, control, timing, and cost advantages and disadvantages. Each also provides its own options for controlling risks and predicting outcomes. Accordingly, it is imperative that the law firm be aware of each option and have the institutional experience to take advantage of the procedure chosen.
John R. Thompson, Esq. Counselors at Law, LLC P.O. Box 366 62 North Main Street Lambertville, NJ 08530 T: 609 460.4011 F: 609 460.4012