Transcript Fourth Party

Alternative Dispute Resolution (ADR):
Smart Solutions for Sustainable Business
NCMA Phoenix
Thunderbird Chapter
October 30, 2014
Harold Coleman, Jr., Esq., Senior Vice President
American Arbitration Association
Professional Mediator/Arbitrator/ADR Trainer
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Presenter
Harold Coleman, Jr., Esq.
SeniorVice President, American
Arbitration Association;
Executive Director & Mediator,
Mediation.org
Los Angeles, California
213.457.0353
[email protected]
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Overview
 “ADR” Landscape Today
 The Dispute Resolution Continuum
 Differentiating Arbitration from Mediation
 Video Demo: Mediation of a Commercial Dispute
 Practice Tips/Tools for Savvy Businesses
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ADR Landscape Today
 People, Businesses Increasingly Litigious (no relief)
 Collaborative Problem Solvers are Few
 95-99% of all Lawsuits Settle With No Trial
 Need for Interest-Based, Win-Win Approach
 Public Demand for Alternatives at All-Time High
 Strategic Control of Time &Cost, Risk & Outcomes
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“NOTABLE QUOTABLES”
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Quotes
Voltaire
“In my life I was ruined but
twice -- once when I lost a
lawsuit and once when I won
one.”
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Quotes
Quotes
Abraham Lincoln
“Discourage litigation. Persuade
your neighbors to compromise
whenever you can. Point out to
them how the nominal winner is
often a real loser -- in fees,
expenses, and waste of time.”
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Quotes
Justice Learned Hand
“As a litigant, I should dread a
lawsuit beyond almost
anything else short of sickness
and death.”
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Quotes
U.S. Congress
“The inadequacy of dispute
resolution mechanisms throughout
the United States is contrary to the
general welfare of the people.”
1980 Dispute Resolution Act
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Quotes
Justice Warren Burger
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“The notion that ordinary people
want black-robed judges, well
dressed lawyers and fine
courtrooms as settings to resolve
their disputes is not correct.
People with problems, like people
with pains, want relief, and they
want it as quickly and
inexpensively as possible.”
Former Chief, U.S. Supreme Court
Questions
Question
Why, in this country, do we jump from
the onset of conflict to litigation?
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Questions
Question
What are some negative
effects of premature
litigation?
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Dispute Resolution Axioms
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Axioms of Dispute Resolution
• a self-evident truth that requires no proof.
• a universally accepted principle or rule.
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Axioms of Dispute Resolution
Axiom #1
A dispute or conflict belongs to …
…the parties that created it.
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Axioms of Dispute Resolution
Axiom #2
The parties most directly
affected by a dispute are, given
the right circumstances, those
best able to resolve it.
Therefore, the best resolution is
likely to flow directly from …
…the parties themselves.
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Axioms of Dispute Resolution
Axiom #3
As a neutral's involvement
increases…
…greater and greater
control over the process
flows from the parties to
the neutral.
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Axioms of Dispute Resolution
Axiom #4
All disputes end… sometime.
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Litigation
When direct negotiations
fail, litigation should often
be the last stop, not the
first, in the dispute
resolution process, so...
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Litigation
Question
…What are some
alternatives to litigation
parties might want to
use to resolve their
disputes and conflicts?
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Adjudication vs. Mediation
Adjudication
Mediation
Decision making given to
third-party tribunal
Parties retain decision
making authority
Decisions based on law, fact
Decisions based on
parties’ needs/interests
Third-party takes evidence,
Mediator helps analyze
hears testimony, issues decision issues, options
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Adjudication vs. Mediation
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Adjudication
Mediation
Court proceedings are public,
arbitration is private
Private, confidential
Decisions may be published
Settlement terms are
private
Rules, procedures enforced
Informal, with
relaxed procedures
Adjudication vs. Mediation
Adjudication
Mediation
Extensive “discovery”
Minimal discovery
Judge/arbitrator presides Mediator meets privately
over formal hearings
with parties in informal
setting
Party communications
are indirect
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Parties encouraged to
communicate directly
Adjudication vs. Mediation
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Adjudication
Mediation
Complex issues take
months, years to
address
Complex issues addressed in
hours or days
Resolution is imposed
Resolution is negotiated
High cost, long time
Lower cost, shorter time
Introduction
“The Real Deal”
Arbitration/litigation
is like waffles
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Mediation is like
spaghetti
Dispute Resolution Continuum
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Mediation Defined
Mediation…an extension of the negotiation process
- disputing parties can’t negotiate effectively; or
- have reached impasse (deadlock)
Mediator…
- neutral third party with no stake in outcome
- invited into dispute to improve communication
- moves parties toward negotiated outcomes
- of their own making
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Nature of the Process
• Mediation is Prospective, not “Retrospective”
• Focus Not on Fault Finding / “Blame Game”
- Seeks No “Penalty”
• Discounts Past … Looks to Future
- How to work together for mutual benefit
- How to achieve resolution agreeable to all
 Cooperative, Non-Adversarial
- In Purpose, Structure, Tone
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Roles of the Mediator
Mediator Roles
• Impartial Facilitator
• Catalyst
• Convener
• Communicator/Translator
• Problem-Solver/De-Escalator
• Influencer
• “Coach”
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• Settlement Agent
Process Stages
 Preparation
 Initial Joint Session
 Caucusing
 Negotiation
 Closure & Formalization
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Video Demo
Mediation of a Commercial Dispute
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End Game to Closure
 If No Pre-Trial Resolution, Only Two Options Exist:
(1) Parties can RECONCILE their INTERESTS, or
(2) Parties can ADJUDICATE their POSITIONS.
 Ultimate Question for Businesses and their Counsel:
- ‘Should I Negotiate’ OR ‘Should I Adjudicate?’
 Taking Control of Your Disputes:
- Right Forum. Right Neutral. Right Timing.
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Tools/Resources for Business
 AAA-ICDR-Mediation.org Phoenix (contact: Rick
Zieglowsky, Director, [email protected])
 ADR.org (all things ADR; ‘Arbitrator Search Tool’)
 MEDIATION.org (‘Find a Mediator’ search tool)
 “Clause Builder” (customize your contract dispute
resolution provisions)
 ADR World (current readings/developments in ADR)
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Final Questions, Thoughts, Insights
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Alternative Dispute Resolution (ADR):
Smart Solutions for Sustainable Business
Thank you!
Harold Coleman, Jr., Esq.
Professional Mediator/Arbitrator/ADR Trainer
Direct 619.794.6001
[email protected]
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