ALTERNATIVE DISPUTE RESOLUTION

Major Ways to Resolve Conflict

• NEGOTIATE – MOST COMMON METHOD

• WHO HAS MOST POWER (PARENT, STRIKE, FIGHT,
COUP, WAR)
• CONFLICT MANAGEMENT SYSTEM (POLITICS,
CORPORATION)
• DETERMINE WHO IS RIGHT (ARBITRATE, COURT)
• ALTERNATIVE DISPUTE RESOLUTION (ALTERNATIVES
TO COURT)
• AVOID
• MANY CONFLICTS ARE A COMBINATION OF
ABOVE
 IS DUELING A FORM OF ADR?
• FAST
• FINAL
• VENT ANGER
• DUE PROCESS
• COST EFFECTIVE
SO WHAT’S WRONG WITH IT?

WHAT ABOUT ROCK, PAPER, SCISSORS?

A U.S. District Court in Florida denied a motion to designate the location for a deposition and instead
ordered the parties to engage in a new form of ADR. Counsel and one paralegal for each side are to meet
at a specified time on the courthouse steps and engage in one game of rock, paper, scissors, with the
winner selecting the deposition location. But, given the litigiousness of the parties, the court set a date for
hearing any appeals resulting from the outcome of the game.

Avista Management, Inc. v. Wausau Underwriters Ins. Co., Case No. 6:05-cv-1430-Orl-31JGG (Order: June 6, 2006)
 ADR CONTINUUM
NEGOTIATE TRIAL
TOTAL CONTROL: NO CONTROL:
OUTCOME & PROCESS OUTCOME & PROCESS

MORE: PUBLIC, COSTLY, SLOWER, FORMAL, BINDING, COMPLEX

FORMS OF ADR
Conciliation, Facilitation, Ombuds, Mediate, Early Neutral Evaluation, Mini Trial, Summary Jury, Arbitrate
 KEY POINTS ABOUT ADR CATEGORIES
• THEY EVOLVE
• THEY MEAN DIFFERENT THINGS TO DIFFERENT PEOPLE
• SO, IF SOMEONE OFFERS U MEDIATION, ASK THEM TO DESCRIBE IT
• THEY ARE SOMEWHAT ARBITRARY AND BLEND INTO EACH OTHER
• MANY MORE ADR CATEGORIES THAN WE WILL DISCUSS
• WILL BE OBVIOUS WHERE WE DO/DON’T HAVE EXPERIENCE

MAIN MESSAGE ABOUT ADR:

• BE CREATIVE—SLICE, DICE, COMBINE CATEGORIES INTO CUSTOM/
HYBRID ADRs THAT WILL HELP YOUR SPECIFIC CONFLICT
 ADR CONTINUUM
PARTIES CONTROL OUTCOME
NO THIRD PARTY PRESENT:
 NEGOTIATE

THIRD PARTY PRESENT:

 CONCILIATE
 FACILITATE
 OMBUDSMAN
 RESTORATIVE JUSTICE AND CIRCLES
 MEDIATE: FACILITATIVE, EVALUATIVE, TRANSFORMATIVE (but many others)
 EARLY NEUTRAL EVALUATION
 JUDICIAL SETTLEMENT CONFERENCE
 MINI TRIAL
 SUMMARY JURY TRIAL
 MEDIATE/ARBITRATE (“med-arb”)
 NEUTRAL EXPERT
 FACT FINDING

PARTIES NOT CONTROL OUTCOME:

 ARBITRATION (HOW DIFFERS FROM COURT; BINDING VS. NON-BINDING; COURT ANNEXED; RULES)
 ARBITRATION VARIATIONS E.G. : BRACKETED, FINAL OFFER
 PRIVATE JUDGING ( E. G. JAMS: WWW.JAMSADR.COM; UNITED STATES ARBITRATION & MEDIATION HTTP://USAM.COM)
 COURT
 FACILITATION
• FACILITATOR AND GROUP SPOKESPERSON DESIGN:
FACILITATION’S GOAL
FACILITATOR’S ROLE
• TYPICAL GOALS:
WHAT SHOULD THE GROUP GOAL BE?
HOW SHOULD THE GROUP GOAL BE ACCOMPLISHED?
• TYPICAL FACILITATOR ROLE:
KEEP GROUP FOCUSED ON GOAL
DIAL DOWN PEOPLE WHO MONOPOLIZE
ENCOURAGE QUIET PEOPLE TO CONTRIBUTE
 FACILITATION
EXAMPLES:
• INTENTIONAL COMMUNITY
• NUNS
• CHURCH
• UNIVERSITY SCIENCE DEPARTMENT
 OMBUDSMAN
PERSON AT LARGE ORGANIZATION
(GOVERNMENT, UNIVERSITY, FORTUNE 500
COMPANY) WITH THE POWER AND SKILLS TO
HELP INDIVIDUALS RAPIDLY CUT THROUGH
BUREAUCRACY AND MISUNDERSTANDING TO
SOLVE PROBLEMS

EXAMPLES:
• COMMISSION ON ADMINISTRATIVE JUSTICE
• THE JUDICIARY OMBUDSMAN
 RESTORATIVE JUSTICE: CIRCLES
RESTORATIVE JUSTICE AND VICTIM/OFFENDER PROGRAMS:
• BELIEVES COMMUNITY, NOT COURT, HAS RESPONSIBILITY TO DEAL WITH CRIME
• OFFENDER MUST ADMIT GUILT IN CRIME AND TAKE RESPONSIBILITY
• MEDIATOR OR CIRCLE HELPS PARTIES RESTORE: VICTIM, OFFENDER, & COMMUNITY
• COMMUNITY SUPPORTS BOTH VICTIM AND OFFENDER AND VICTIM IS MADE WHOLE
• SOMETIMES CALLED “DIVERSION PROGRAMS” (DIVERSION FROM COURT)
• USED IN JUVENILE CRIME, DOMESTIC VIOLENCE, AND CLERGY SEXUAL ABUSE
• EXAMPLES:
RECONCILE MURDERER WITH VICTIM’S FAMILY: TDRMs?

CIRCLES:
• OFTEN USED IN, AND ASSOCIATED WITH, RESTORATIVE JUSTICE
• USED BY CITY OF CHICAGO CIRCLE KEEPERS WITH COMPETING GANG LEADERS AS MEMBERS OF
THE CIRCLE TO REDUCE GANG VIOLENCE
• OTHER EXAMPLES ARE CIRCLES FOR: MOURNING, FAMILY, CELEBRATORY, BUSINESS TEAM
BUILDING, PEACE, CONFLICT, HEALING, UNDERSTANDING, SUPPORT, AND COURT SENTENCING
 MEDIATION
FACILITATIVE:
• Position to N/I
• Options to create value and maximize joint gain
EVALUATIVE:
• Non-legal: evaluate BATNA/other issues & settlement advice
• Legal: evaluate BATNA/evidence & settlement advice
TRANSFORMATIVE:
• Empowerment
• Recognition
OTHERS, E.G.: NARRATIVE, SOLUTION FOCUSED, STRATEGIC
AND AT LEAST 30 OTHER MODELS IN THE U.S. ALONE
 TRANSFORMATIVE MEDIATION
THE PROMISE OF MEDIATION (1994)
BY ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER
PURPOSE DRIVES PRACTICE
Facilitative and Evaluative Mediation are aimed at problem solving and settlement rather than at the true goal of mediation which is:
TO TRANSFORM THE QUALITY OF HUMAN INTERACTION

PREMISES UNDERLYING THE TRANSFORMATIVE APPROACH (WHY)

• People have a need for self-fulfillment and connection with others
• People are capable of making decisions for themselves
• People are capable of looking beyond themselves
• People have a unique reality based upon their life experiences
• Conflict causes weakness and self absorption, diminishing people's ability to deal with issues they face
• Conflict is relational and challenges the quality of interaction
• Empowerment and recognition restore people's ability to handle issues they face

PRINCIPLES OF TRANSFORMATIVE PRACTICE (WHAT)

• Be comfortable with conflict
• Respect party choices
• Be comfortable with a limited understanding of the parties'
• conflict
• Respect the parties
• Be patient with the parties and the process of their interaction
• Focus on the moment-by-moment events
• Attend to empowerment and recognition opportunities
• Choose interventions based upon opportunities for party empowerment and recognition
• Relinquish control of the process

TECHNIQUES (HOW):
• Opening statement about "conversation"
• Micro focus; close listening; in the moment
• Reflect (back to speaker; "so you are saying")
• Summarize (both parties; "you say this but you say that")
• Open ended check in questions ("what mean by that")
• Silence. (no reality testing, no neutralization– go to the heat)
• Process choice points ("where do you want to go from here")
 Transformative Mediation
The Promise of Mediation
Robert A. Baruch Bush & Joseph P. Folger
Purpose drives practice
Facilitative and Evaluative Mediation are aimed at problem solving and
settlement rather than at the true goal of mediation which is:
TO TRANSFORM THE QUALITY OF HUMAN INTERACTION
EMPOWERMENT

Weak Strong

RECOGNITION

Self-Absorbed Responsive
 EARLY NEUTRAL EVALUATION
IN 1985 DISTRICT COURT FOR NORTHERN DISTRICT OF CALIFORNIA NEEDED TO CUT COST
• FOUND BIGGEST WASTE WAS AT PRETRIAL LITIGATION STAGE: PRETRIAL ATTORNEY POSTURING,
VAGUE PLEADINGS, NEITHER SIDE UNDERSTOOD CLAIMS AGAINST IT, POOR COMMUNICATION
• SO, SET UP EARLY NEUTRAL EVALUATION

COURT CHOOSES A RESPECTED LAWYER AS A NEUTRAL EVALUATOR

• HAS NO JUDICIAL POWER; ENTERS NO BINDING ORDERS
• GOAL: PREPARE FOR SETTLEMENT--NOT TRIAL
• CONDUCTS 2 HOUR EARLY NEUTRAL EVALUATION WITH PARTIES AND COUNCIL
• ID AREAS OF AGREEMENT AND RECOMMEND/LIMIT SCOPE OF DISCOVERY PLAN
• ENCOURAGE STIPULATIONS; DISCOURAGE BOILERPLATE ARGUMENT
• LIMIT DISCOVERY TO ACTUAL, NOT PERCEIVED, DISPUTE

MEET AGAIN AFTER LIMITED DISCOVERY

• ASSESS STRENGTHS, WEAKNESSES (BATNA) & RANGE OF TRIAL OUTCOMES
• RECOMMENDS SETTLEMENT
• IF PARTIES DON’T SETTLE, EVALUATOR, OR OUTSIDE MEDIATOR, CAN MEDIATE THE CASE
 MINI TRIAL
ATTORNEYS DESIGN PROCESS IN ADVANCE:
• CHOOSE A THREE PERSON PANELTO HEAR THE CASE:
• ONE NEUTRAL UNRELEATED TO COMPANIES OR THE CONFLICT
• ONE HIGH LEVEL BUSINESS EXECUTIVE, NOT INVOLVED IN THE CONFLICT, FROM EACH COMPANY
• AGREE ON: DISCOVERY, WITNESSES, COST, ROLE OF NEUTRAL, CONFIDENTIALITY, LENGTH (USUALLY ~2 DAYS)
• PANEL RUNS SESSIONS LIKE COMBINATION OF ARBITRATION AND MEDIATION
• EACH EXECUTIVE HAS FULL SETTLEMENT AUTHORITY
• AFTER THE HEARING THE TWO EXECUTIVES STEP OUT AND TRY TO SETTLE CASE
• IF THEY CAN’T SETTLE, THE NEUTRAL MAY MEDIATE OR CALL IN OUTSIDE MEDIATOR

USED FOR LARGE COMPLEX CASES, E.G.:

COMEPTITION LAWS, CONSTRUCTION, PRODUCT LIABILITY, BREACH OF CONTRACT, INTELLECTUAL
PROPERTY

ADVANTAGES OVER TRIAL:

• TURNS LEGAL CASE BACK INTO A BUSINESS PROBLEM
• HIGH LEVEL EXECUTIVES INVOLVED EARLY WITH INTENT TO RESOLVE—95% RESOLVE
• SAVES MONEY: ONE DAY OF TRIAL EQUALS THE COST OF FIVE DAYS OF MINI TRIAL
• PRESERVE BUSINESS RELATIONSHIP
• LIMITED DISCOVERY
• MINIMIZE NUMBER OF WITNESSES
• PRIVATE & CONFIDENTIAL
 SUMMARY JURY TRIAL
A COURT ANNEXED, COMPULSARY, NON-BINDING ADVISORY JURY VERDICT
• INVENTED IN 1980 BY FEDERAL DISTRICT CT JUDGE THOMAS LAMBROS TO CUT HIS LARGE DOCKET
OF TOXIC TORT(ASBESTOS) CASES
• JURY MEMBERS DO NOT KNOW THEIR VERDICT IS ADVISORY
• AFTER EXECUTIVES HEAR THE ADVISORY VERDICT THEY TRY TO SETTLE
• 1/3 SETTLE PRIOR TO TRIAL WHEN LAWYERS SEE HOW JUDGE RULES ON MOTIONS
• MOST CASES SETTLE AFTER TRIAL—WHETHER OR NOT WIN/LOSE, STRONGLY AFFECTS BATNA
• IF EXECUTIVES CAN’T SETTLE, IS MEDIATED
• IF MEDIATION FAILS, REAL TRIAL IS FASTER

ADVANTAGES:
• LOW COST: ONE DAY TRAIL VERSUS WEEKS FOR REGULAR TRIAL
• 6 NOT 12 PERSON JURY
• TIME LIMITS: 15 MIN FOR OPENING STATEMENT; 1 HR FOR CASE-IN-CHIEF
• NO LIVE WITNESSES: EVIDENCE PRESENTED BY LAWYERS IN NARRATIVE FORM BASED ON
• AFFIDAVITS, DEPOSITIONS & TESTIMONY SUMMARIES GATHERED IN DISCOVERY
• OPPORTUNITY TO DEBRIEF JURY AND ANALYZE THEIR THOUGHTS
• ENCOURAGES SETTLEMENT AS EXECUTIVES SEE RESULTS OF MOTION PRACTICE AND VERDICT
 NEUTRAL EXPERT PANELS FOR
COMPLEX CASES
IN THE REPORT MODE:
• COURT APPOINTS EXPERT PANEL TO EDUCATE COURT ON COMPLEX SCIENTIFIC
ISSUES & TO DETERMINE ADMISSIBILITY OF EVIDENCE
E.G.: PATENT, COMPUTER, ALGORITHM, BRIDGE COLLAPSE, TOXIC TORT
ASBESTOS, PHARMACEUTICAL PRODUCT LIABILITY CASES
• COURT ORDER DEFINES ON EXACTLY WHAT EXPERTS WILL REPORT
• EACH PARTY HAS UNLIMITED PEREMPTORY CHALLENGES OF THE EXPERT LIST
• REPORT GOES TO COURT & PARTIES
• PARTIES MAY DISAGREE WITH FINDINGS
• REPORT TAKES MONTHS TO PREPARE BUT CAN CUT YEARS OFF TRIAL

IN THE SETTLEMENT MODE:

• TREND: EXPERTS INCREASINGLY MANAGE DISCOVERY, WRITE REPORTS & GUIDE
NEGOTIATION TOWARD SETTLEMENT
 FACT FINDING
USED TO ASSIST PARTIES:
• IN DECISION MAKING: E.G: EXPERT ACCOUNTANT
• WHERE TRIAL WON’T MEET NEEDS: E.G. SEXUAL HARASSMENT-- WHERE
SENSITIVITY AND FAST RESOLUTION ARE DESIRED
SO, PARTIES AGREE TO COOPERATE:
• COURT APPOINTS FACT FINDER WITH PSYCHOLOGICAL EXPERTISE,
SENSITIVE, CONFIDENTIAL, & GOOD INTERVIEWER
• FACT FINDER INTERVIEWS PARTIES & WITNESSES IN ABSENCE OF LAWYERS
HARASSMENT REPORT:
• STATES WHAT HAPPENED
• NO LEGAL CONCLUSION LIKE “YES HARRASSMENT” BUT BASIS TO SETTLE:
E.G: “YES, THE WITNESSES IS CREDIBLE?
• REPORT GOES TO COUNCIL AND ARBITRATOR OR MEDIATOR
• USES A SEPARATE MEDIATOR—NOT THE FACT FINDER
 Arbitration
PURPOSE, IN CONTRAST TO COURT:
• FAST
• CHEAP
• HARD TO APPEAL
• FINAL(binding) - but some non-binding
• CONFIDENTIAL - no precedent
• RELAXED RULES OF EVIDENCE
 ARBITRATION
SIMILAR TO COURT WITH THREE MAJOR DIFFERENCES:
1. RELAXED RULES OF EVIDENCE:
• ARBITRATOR MAY BE NON-LAWYER WITH OTHER EXPERTISE E.G. : MEDICAL, ENGINEERING, CONSTRUCTION, FINANCE
• SINCE PANEL MORE EXPERT THAN LAY JURY-- LESS LIKELY TO BE FOOLED ABOUT: RELEVENCE, MATERIALITY, HEARSAY, SO--
• COMPARED TO LAY JURY AT HEARING-- LESS NEED TO PROTECT THE FINDER OF FACT FROM BIAS
2. HARD TO APPEAL & VACATE AWARD UNLESS SHOW:
• BIAS, CORRUPTION, MISCONDUCT, FRAUD, GROSSLY UNFAIR; MANIFEST DISREGARD OF LAW; LACK OF DUE PROCESS
3. FINDER OF FACT: LITIGANTS CAN CHOOSE ARBITRATORS, THEY CAN NOT CHOOSE THE JUDGE

COMES ABOUT:
• 1. BY CONTRACT, 2. AD HOC, 3. COURT ANNEXED-NON BINDING (EG: COOK COUNTY CIVIL COURT; PENALTY IS INCENTIVE TO SETTLE)

ARBITRATORS:
• ONE OR 3 ARBITRATOR PANEL WITH CHAIR WHO RUNS ARBITRATION AND RULES ON MOST MOTIONS LIKE DISCOVERY, DEPOSITION, AND
SUBPOENA AS WELL AS MOMENT TO MOMENT RULINGS DURING THE HEARING

RULES VARY (E.G., parties must keep matters confidential in labor but not FINRA arbitration):
• AAA; FINRA(FINANCIAL INDUSTRY REGULATORY AUTHORITY); CENTER FOR PUBLIC RESOURCES INSTITUTE FOR DISPUTE RESOLUTION (CPR);
DRUG FIRM HAS OWN RULES WRITTEN INTO CONTRACTS; BOURSE OF PREDOMINENTLY JEWISH DIAMOND EXCHANGES, ETC
 ARBITRATION
THE CHAIR OF AN ARBITRATION PANEL:
• TO SATISFY ARBITRATION’S GOALS (FAST, LOW COST) WILL, IN CONTRAST TO A JUDGE:
• Require greater relevance and less cost and delay to grant discovery motions
• TO AVOID A VACATED AWARD :
• Put great emphasis on neutrality and appearance of neutrality
• At hearing more often deny objections on relevancy, materiality, hearsay to assure fair process

TREND TOWARD LEGALIZATION OF ARBITRATION:

• As arbitration’s costs rise due to more discovery motions and electronic discovery, its cost/benefit,
compared to trial, worsens
• Arbitration risk vs. mediation or court: bad arbitrator/no appeal; bad judge/easy appeal

ARBITRATION SUBTYPES ENCOURAGE SETTLEMENT, CLOSE THE BID/OFFER GAP, CUT UNCERTAINTY, E.G.:
1. Bracketed, Hi Low, Goal Post, Night Baseball, Personal Injury
Arbitrator given sealed bid/offer: EG: $50K & $100K
After arbitrator decides, the mathematically closest number wins, EG: if decision is $60K, 50K wins
2. Final Offer, Day Baseball, Public Employee:
Arbitrator is told the final bid/offer: arbitrator must pick either $50K or $100K
 Process Advantages

Court Arbitration Mediation

Public Private Private

Rules of Evidence Written Procedures Flexible

Precedent Tailors remedy to Addresses underlying

situation problem

Publicly Funded Relatively inexpensive Relatively inexpensive

John Cooley, Advocacy in Mediation

 Process Disadvantages

Court Arbitration Mediation

No control over selection Neutrals unaccountable Neutrals have no power
o f judges to impose settlement
Lack of special Lack of quality control No due process
substantive or technical safeguards
expertise
Delay Limited or no discovery Limited access to
information

Limited range of Usually no written Lacks enforceability

remedies reasons for decision

John Cooley, Advocacy in Mediation

 EXTENT TO WHICH DISPUTE RESOLUTION
PROCEDURES SATISFY CLIENT OBJECTIVES*

• Minimize Cost  Mediation, Early Neutral Evaluation

• Speed  Mediation, Early Neutral Evaluation
• Privacy  Mediation, Minitrial, Arbitration
• Maintain Relationship  Mediation
• Vindication  Court
• Precedent  Court
• Maximize Recovery  Court
• Neutral Opinion  Mini-trial, Summary Jury Trial, Early
Neutral Evaluation, Arbitration, Court

*From: Sander & Goldberg, Fitting the Forum to the Fuss, Negotiation Journal, January 1994
 LIKELYHOOD THE ADR PROCEDURE WILL
OVERCOME IMPEDIMENTS TO SETTLEMENT*
• Poor Communication Mediation
• Need to Express Emotion Mediation
• Important Principle Mediation
• Constituent Pressure Mediation
• Multiple Parties Mediation
• Different Lawyer-Client Interests Mediation
• Different View of Facts Mediation, Minitrial, Summary Jury Trial,
Early Neutral Evaluation
• Different View of Law  Minitrial, Summary Jury Trial,
Early Neutral Evaluation
• Jackpot syndrome  Minitrial, Summary Jury Trial,
Early Neutral Evaluation
*From: Sander & Goldberg, Fitting the Forum to the Fuss, Negotiation Journal, January 1994
 ATTORNEYS’ NEEDS & INTERESTS IN
MEDIATION
• AVOID TRIAL
• SELF RESPECT
• MINIMIZE RISK
• SEE JUSTICE DONE
• MAXIMIZE INCOME
• LOOK GOOD TO CLIENT
• FEEL GOOD ABOUT RESULTS
• LOOK GOOD IN THE LEGAL MARKET
• CLIENT FEELS GOOD ABOUT RESULTS
• LOOK GOOD TO OPPOSING ATTORNEY
 ADVOCACY ERRORS IN MEDIATION
• WRONG CASE
• WRONG MEDIATOR
• WRONG CLIENT IN ROOM
• WRONG LAWYER IN ROOM
• FAIL TO PREPARE CLIENT
• FAIL TO PREPARE CASE & BATNA
• NOT LET CLIENT DO OPENING STATEMENT
• ADDRESS MEDIATOR INSTEAD OF OTHER SIDE
• MAKE LAWYER CENTER OF MEDIATION
• TIMING ERRORS
• FAIL TO LISTEN TO OTHER SIDE
• FAIL TO USE ADVOCACY TOOLS EFFECTIVELY
• FAIL TO IDENTIFY PERCEPTION AND MOTIVATION
• HURT, HUMILIATE, THREATEN, COMMAND
• BACKWARD STEPS
• CLOSING TOO FAST (REDUCE DEMANDS IN SMALL STEPS)
• BREACH CONFIDENTIALITY
• LACK PATIENCE AND PERSEVERENCE
• MISUNDERSTAND CONFLICT(DON’T FIGHT; AIM TO UNDERSTAND OTHER SIDE)

CENTER FOR CONFLICT RESOLUTION 2007

 COURT ANNEXED MEDIATION
COURT MANDATES MEDIATION PRIOR TO
PARTIES GETTING ACCESS TO JUDGE/JURY

EXAMPLES:
• Kenya’s Judiciary Court Annexed Pilot.
 VARIATION IN MEDIATION PRACTICE
VARIATION IS SET BY CUSTOM THAT EMPHASIZES DIFFERENT
STAGES OF MEDIATION; BUT COMMON TO ALL:
1. PRE-MEETING (trend: increasing use of this stage)
2. ORIENTATION
3. GATHER INFORMATION
4. FRAME ISSUES
5. TRANSLATE POSITIONS TO NEED/INTEREST
6. GENERATE OPTIONS FOR MUTUAL GAIN
7. AGREEMENT/NO AGREEMENT
 VARIATION IN MEDIATION PRACTICE
Commercial (often evaluative, Personal Injury (usually evaluative)
shuttle)

M
M
A A A A
P P Injured Person Insurance Rep
Preliminary Meeting
Opening Statement & Agree to Mediate Narrow Issues: Liability, Damages &
Initial Statement
Value of Case
Caucus
Caucus
Caucus
Caucus
Agreement/No Agreement
CRISIS NEGOTIATION SKILLS
CREATED BY JEFF THOMPSON WHILE ON LEAVE FROM NYPD FOR USE BY OTHERS
 HOW TO THINK ABOUT MEDIATION
• ADVANTAGES/REASONS TO MEDIATE:
• MOST LIKELY TO CHOOSE MEDIATION IF: CONTINUING RELATIONSHIP
• HIGHER: JOINT GAIN, SATISFACTION, DURABILITY, COMPLIANCE-- THAN COURT
• EDUCATION ABOUT PROBLEM THROUGH COMMUNICATION
• EMOTIONAL VENTING NEEDED
• CONFIDENTIAL
• FAST
• CHEAP

• DISADVANTAGES/REASONS NOT TO MEDIATE:

• LESS LIKELY TO CHOOSE MEDIATION IF: NO CONTINUING RELATIONSHIP
• SEEK LEGAL PRECEDENT (E.G. BROWN V. BOARD OF EDUCATION)
• PARTY CAN’T MAKE DECISIONS ABOUT INTERESTS (ALZHEIMER’S)
• DISPUTE NOT RIPE
 HOW TO THINK ABOUT MEDIATION*
REASONS TO MEDIATE RATHER THAN LITIGATE LARGE CORPORATE CASES
• SAVE MONEY
• CONFIDENTIAL
• PRESERVE RELATIONSHIP
• CREATIVE SOLUTION AND HIGH JOINT GAIN POSSIBLE
• PARTIES CONTROL OUTCOME; PREDICTABILITY IS CRITICAL
• DOESN’T TAKE MANAGER AWAY FROM JOB; DOES NOT CURTAIL MANAGER RISK TAKING

REASONS TO NOT MEDIATE LARGE CORPORATE CASES

• SEEK PRECEDENT
• OTHER PARTY’S BAD FAITH
• THINK CAN WIN ON SUMMARY JUDGMENT (BUT OFTEN WRONG)
• FREE DISCOVERY FOR OTHER SIDE (BUT IF GO TO TRIAL, THEY WILL GET ANYWAY)
• SIGN OF WEAKNESS (SOPHISTICATED ADVOCATES RARELY WORRY ABOUT THIS)
* Based on 1999 Kent Law School lecture by Mark Holstein, Esq., mediation director, BP Amoco
 HOW TO THINK ABOUT MEDIATION*
TO MEANINGFULLY IMPACT CORPORATE LEGAL COST MUST MEDIATE EARLY
• THERE ARE FEW DE NOVO CASES
• 20% OF LITIGATION DOLLAR SPENT GETTING 80% OF INFORMATION
• 80% OF LITIGATION DOLLAR SPENT TURNING OVER EVERY ROCK
• PREPARE WELL YOUR AND THEIR N/I, LITIGATION ANALYSIS/BATNA

MOST IMPORTANT IN CHOOSING A MEDIATOR:

• REFERENCES IMPORTANT: MUST HAVE 80% SETTLEMENT RECORD OR BETTER
• IF CAN GET ON A MEDIATOR’S CALENDAR QUICKLY, IT’S NOT GOOD
• LAW FIRMS AND LARGE CORPORATIONS KEEP RECORDS ON MEDIATORS
• GOOD MEDIATORS HAVE LOT OF PERSONALITY & ENTHUSIASM
• MUST BE SINGLE MINDED TO SETTLE, AGGRESSIVE, POUND HEADS TOGETHER
• SUBSTANTIVE KNOWLEDGE NOT CRITICAL, BUT MUST TEST THEORIES & PUSH IDEAS
• HIRE ONLY MEDIATORS WHO WILL TELL YOU WHAT THEY THINK

* Based on 1999 Kent Law School lecture by Mark Holstein, Esq., mediation director, BP Amoco
 History of Litigated Dispute and the Potential
for Early Dispute Resolution*

0. Dispute happens
1. Try to solve. This is optimal place
to mediate to save money. Has to
be done before depositions,
6 discovery & summary judgment
2. Discovery
5
3. Depositions
4. Motion for Summary Judgment
4
5. Trial Preparation. Just after this is
1 2 3
where outside law firm satisfied with
fees
6. Where outside lawyer says OK to
mediate
* Based on 1999 Kent Law School lecture by Mark Holstein,
Esq., mediation director, BP Amoco