Unleashing Creative Dispute Resolution by Enabling Neutrals Creativity – Online

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Unleashing Creative Dispute Resolution by Enabling Neutrals Creativity – Online

By Judge Arthur M. Monty Ahalt (Ret.) and David W. Puckett

“Paving the cow path leads to new cows and new paths” – anonymous

Introduction. If you are a neutral and are not interested in being creative in helping your clients resolve their differences then this article is not for you. The parties are only interested in the most creative and effective neutrals. And it applies to computer aided dispute resolution as well as computer generated dispute resolution.

The dispute resolution universe is enormous and very diverse. After all it encompasses all human undertaking. The importance of resolving a dispute is as old as mankind. It only took 40 days for the Israelites after being rescued from the ravages of tyranny to begin arguing among themselves and seeking Moses’ wisdom in resolving their differences. The key 3,000 years ago is still the key today. Seek a wise person immediately and if necessary stand in line to get the matter resolved. As Barney Fife would say “nip it in the bud”. In today’s’ complicated world disputes find their way into every activity and the wisdom of judges and the courts cannot keep up with the pace of dispute creation. And the traditional institutional forms of dispute resolution of family, church and school have slowly disintegrated. Alternatives to the courthouse – courtroom and juries and judges have thus become a necessity, but the process is still too slow, too time consuming and too expensive. Alternative dispute resolution comes to the rescue but is bound by the same structure and process – buildings, rooms, paper and words. The creative neutral needs to be liberated from the constraints of the physical world. Their creativity is unleashed by the same dynamics that have transformed the business, educational, communication world – the computer – the mobile device -the Internet and now the cloud.
Because of the diverse nature of human activity the subject matter of disputes is likewise diverse. One only needs to take a look at the courts’ docket to see this diversity up close. But the diversity does allow for some logical groupings
1. Family
2. Personal Injury
3. Property
4. Business

Generally speaking different alternative approaches work better than others in each grouping. One size does not fit all. Evolving approaches include
1. Facilitative mediation
2. Evaluative mediation
3. Transformative mediation
4. Neutral case evaluation
5. Arbitration
The communities’ response to festering disputes has been a top down motivation. Disputes fester long enough so the parties resort to lawyers and courts. However there are not enough judges to bring resolution in a timely fashion. Faced with these realities courts command the parties to mediate as a condition to getting a trial date. Knowing this, lawyers coach their clients into pre-court activities or bottom up activities. And bottom up motivation is increasing as parties and their lawyers recognize that sooner is better than later when it comes to dispute resolution.

Typically a neutral (mediator/arbitrator) is trained in the paper -”bricks and mortar” – world where all matters are conducted with the use of paper and face to face communications. A neutral is trained to allow the parties to meet together so that the neutral can explain the nature of the mediating process and set the stage for mediating activities. The neutral then designs a process that allows and facilitates private discussions with each party. The design of the process is the product of the neutrals experience, creativity and the input of the parties. Traditional mediation trains a neutral to hold a series of separate and private face-to-face neutral led discussions.

In the first session the neutral focuses on achieving the following – gather information, identify interests, generate options, anticipate the other parties concerns, isolate areas of disagreement, and explore multiple options.
In the second and subsequent sessions the neutral encourages the parties in separate sessions to focus on the future not the past, test feasibility of solutions, focus on best and worst alternatives. In the final session the neutral makes sure there is a complete, clear, mutual understanding that brings closure to all issues.

Typically the neutral attempts to accomplish these tasks in one meeting lasting several hours to ten plus hours and multiple days. The overall task of the neutral is to keep the parties from drawing lines and to stay engaged in alternative solutions. Once the parties leave the physical meeting place it is extremely difficult to get them back together. The physical nature of the forum becomes a part of the process. It even identifies the process. So when the meeting place is not present the parties struggle to stay focused on the mediation process. It is therefore key to replace the physical conference room as the place of the commencement of mediation. Not that a physical place can’t play a role – it just can’t be THE Role.

Successful neutrals are good at designing creative methods to keep the parties engaged in a process while preventing the parties from “walking out” on the process emotionally and physically. Creative neutrals are constantly coming up with the “what’s new” factor. In the physical world it is difficult to prevent the parties from “walking out” on the process. Not so in the virtual world. The evolving tools available to the neutral in the virtual world however, are difficult to find, to understand and to figure out how to make them available to the parties.
But the parties and the neutrals have not adopted the virtual world and ODR. WHY?

It is All about Change Not Technology – Overcoming Barriers
The adoption of technology by businesses and individuals over the last two decades is astounding. Today only a few laggards in the legal profession fail to make use of the PC. Interestingly enough, the leaders are not always the younger generations as many senior lawyers lead the way. Take Judge Richard Rombro, a retired Judge in Maryland (having been forced to retire because the Constitution requires retirement at age 70). Judge Rombro managed the entire asbestos docket for the Circuit Court for Baltimore City using Lexis-Nexis File and Serve – sometimes even from his winter office in Florida. The legal profession has fully embraced technology including the Internet in order to become better lawyers. Those who have not embraced technology are losing the competitive battle.
So why is it that disputes are still mainly resolved with a dependency on paper and face-to-face meetings? It is all about change. Old ways are not put aside easily. Who hasn’t heard a lawyer say – “I know that is the way it will be done in the future, but I am not going to change now.”
Change requires strong and great leadership. And great leaders always have a vision, a strategy, and they are enthusiastic and work really hard.
In developing a strategy it is essential to identify the barriers. The following are but a few:
The neutral needs to see the parties
Scanning and uploading documents
It is easier to do it the old way
My computer is too slow

As ODR enters its second decade, it requires adoption by three separate constituencies – the claimant, the respondent and the neutral. Much like a stool with three legs, if one leg is absent the stool falls. Thus, the challenge of change is multiplied or as the mathematician might say – “cubed”. Most all practitioners have successfully overcome the barriers to change, which were presented with the advent of court ordered ADR in the 1990’s. The benefits have become obvious – time savings, cost savings and “resolution satisfaction”. Yet the court dockets keep growing – so – much more remains to be accomplished.

Students of the dynamics of change will testify that change does not occur unless there is;
1. Leadership
2. Strategy
3. Management

Transferring an existing process from the bricks-and-mortar world to the Internet is a daunting undertaking. The process is fraught with barriers of change involving multiple parties and multiple processes. Developing a strategic approach is therefore essential. It is similar to “eating and elephant” – you do not want to plan this event for one meal or you will surely fail. You need to start small but you need to start. It is necessary to strategically identify a starting point where the existing barriers are not overwhelming and where efficiencies of online business will bring the greatest bottom line result.

Start Now Before the Technology Overtakes You
The speed of technological change is now “warp speed” . According to Joshua Topolsky editor-in-chief of the Verge “What will happen over the next few years in user interface design and decentralized cloud systems will make the previous 20 years seem tame by comparison. We’ve crossed over from a long, slow evolution to an explosive revolution in what a computer is and how you use it – and there’s no looking back.” But Topolsky is not alone as the financial community is planning ahead and quantifying activity for the next several years. As the biggest maker of networking equipment, Cisco has a good view of what the future of the online data boom looks like. It even employs a “Chief Futurist” to help guide its business.

Right now, Cisco is laying out the numbers for 2015 (less than four years away). By 2015:
• Internet traffic will quadruple, reaching 966 exabytes of data per year. (An exabyte is an amount of data roughly equal to a billion medium-quality movie downloads.)
• There will be a total of 15 billion network-connected devices in the world (two per person).
• Internet users will reach 3 billion – roughly 40% of the global population.
• Average broadband speeds will increase fourfold from current levels.

Those are just the basic “big picture” numbers. Cisco also confirmed the enormous trend in mobile devices… gadgets like smartphones and tablet computers. In 2015, traffic from wireless devices will exceed traffic from wired devices. (Today, wireless makes up just 37% of traffic.)
• Global mobile data traffic in 2015 will be 26 times higher than 2010.

These enormous growth rates are happening because of two factors. First, the entire world is becoming connected. Nearly a billion people in China and India will be using the Internet. Meanwhile, the fastest growth is in Latin America, where traffic is expected to increase at an annual rate of 50% over the next four years.

The second big factor is video. Unlike the average Microsoft Word document, videos are huge files. Internet video is currently about 40% of online traffic. That percentage will rise to more than 60% by 2015. (Does this unequivocally demonstrate the human factor appeal of real time pictures)

Dave Evans, Cisco’s “Chief Futurist,” summed up the explosion in traffic by noting that it took 200 years to fill the U.S. Library of Congress. He pointed out that Internet users now create the equivalent amount of digital data every two minutes.

In February Eric Schmidt, CEO of Google, announced “The PC is Dead” – see you tube http://www.youtube.com/watch?v=S80hf4kp25c – and then in August Google purchased Motorola.

How Can Change Help the Mediator/Neutral – Adopting new ways should be natural to the creative neutral that is always searching for a way to keep the parties from drawing lines and reaching an impasse. Creativity equals success in the “case closed/dispute over” statistics column. The successful neutral will immerse themselves into technology in order to help folks reach finality quicker and cheaper.
Direct all Activities Online. Confidentiality demands that all information relating to a dispute to be mediate be segregated in such a fashion that no other individuals have access to any information concerning the mediation. The best place to accomplish this level of confidentiality is in a secure mediation case file, which can only be accessed by the parties counsel and the mediator/neutral. Online dispute resolution providers provide such confidentiality – outside of the firewalls of law firms, businesses and individuals.

Adopt Currently Existing Technology. Even prior to the term Online Dispute Resolution (ODR), practitioners of mediation where using the standard multi-party conference call in the process of mediation. Synchronous and asynchronous discussion web technologies have been successfully employed. But many more technologies are quickly becoming available. Dr. Ted Becker, today a professor at Auburn University, recalls the Community Mediation Center on campus at the University of Hawaii in the early 80’s, using conferencing calls exclusively in the mediation process successfully. Most citizens have likely used the telephone many times to resolve disputes of various types. And video is becoming a common family event with the likes of Skype and Facetime.

The Conference Call. Today, with major technology advances in the world of telephony, IP phones that leverage the Internet for making calls has reduced the cost around national and even international calls to a minimal cost. Phones have very advance features today; even personal computers and smart phones can be leveraged in muti-party conference calls. Just this past semester, the Residential Institute at Nova Southeastern University conflict resolution class held a 3-party conference call with two different tribes in Cameroon, leveraging mediators on campus in Ft. Lauderdale working as neutrals to resolve a complex generational conflict between two tribes.

In the original days of conference calling dedicated equipment was required. It was rare when a board or conference room did not have a big centralize conference phone device in the center of the table. However, today it is much easier and most phones including cell phones enable a conference-calling feature. Conference calling across the state, country or internationally used to involve expensive long-distance charges or dedicated toll-free 800 numbers, however today several vendors offer IP based conferencing for free. Cell phones have all but eliminated long-distance phone bills.
Examples of current conference call providers
1. Free Conference Call.com.
2. Nocostconference.com
3. instantconference.com
4. rondee.com
5. budgetcall.com

Web Based Video Meeting Technology. For more than a decade corporations have been leveraging electronic meeting technology across the Internet for very important internal and external meetings. And, the technology is used for sales and new product announcements. This technology is very easy to access and use. All that is needed is an Internet connection (fixed or wireless) and a web-enabled device like a PC, Pad or Smart Phone. The systems include the ability for multi-party participation and all participants have the ability to talk and see video and/or other documentation on the screen as the conference is being hosted. This technology is so common, easy to use and widespread that nationally focused businesses are using it to reduce corporate travel, extend their reach to their partners and to communicate directly to their customers. The ODR industry is just begining to use this technology today. The business related applications of these technologies are easy to use and can host more than 200 active simultaneous connections – far more than needed in a typical mediation or arbitration secession.

The dispute resolution community has been reluctant to adapt these technologies in the mediation and arbitration processes. This reluctance has persisted for several reasons. First, at least three different users have to have the same technology in order to participate. This at times seems almost unachievable. Second, the quality and stability of the voice or video has not reached a level where the parties feel like Video Conferencing technology is stable. Pad computers have front facing cameras. PC’s have webcams integrated and in the very near future smart phones will have the same front facing camera. Wide spread video conferencing including multiple party video will become common place and there will be platforms offered by most major technology vendors. Just in the last year, we have seen Microsoft acquire Skype. Most industry insider’s project that Microsoft is going to have to develop commercial business applications for the use of this technology to turn a profit. So in the very near future, ODR providers will leverage multiple party video technologies and integrate them into their ODR platforms and services. Major advances will occur over the next several years as the number of people who have broadband, and video enabled phones, pads and PCs increases dramatically.

Examples of currently available video services include the following.

1. Go-to-Meeting
2. Adobe – Connect –
3. Webex.
4. Iocom – Visimeet
5. Skype
6. Accuconference.
7. Logitech – LifeSize
8. ooVoo

These and many others include a growing variety of collaboration tools including white boarding and plug-ins to support Microsoft Office and other documents formats. In the past these types of tools have come at a higher cost, but as competition and technology increase the cost is coming down.

Integration of all Activities. The challenge is combining audio, video and document collaboration/document management in a user-friendly application that easily facilitates the parties to communicate in a fashion that results in an agreement. The goal is to ensure the systems are easy to use and empowers the neutral to control the environment like they might control a conference room today. There is no question that the technology community is up to this challenge.

Conclusion: Stay turned for major new advancements in ODR from the major technology vendors. These systems are likely to be outside the traditional legal or ADR industries. There will be portals, platforms and services with capabilities to bring people together instantly and virtually to resolve conflicts. The practice of bringing the partners together with the neutral is only one part of the process. You will soon see case management, document management, time keeping, billing and accounting for neutrals. But that is a matter for another day and another article.

Expect ODR, to not be a competitor to the traditional legal system, but a partner and an alternative platform for conflict resolution of the future.

How Can Change Help the Mediator/Neutral – Adopting new ways should be natural to the creative neutral that is always searching for a way to keep the parties from drawing lines and reaching an impasse. Creativity equals success in the “case closed/dispute over” statistics column. The successful neutral will immerse themselves into technology in order to help folks reach finality quicker and cheaper.

by By Judge Arthur M. Monty Ahalt (Ret.) and David W. Puckett – February , 2012

Judge Ahalt is CEO of VirtualCourthouse.com. He is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, professional malpractice, commercial, real estate, construction and electronic discovery disputes. www . montyahalt .com

 

David W. Puckett is currently a graduate student in Conflict Resolution/Mediation at Nova Southeastern University. He has been a professional in the IT consulting industry for more than 20+ year including founding and managing domestic and international practices for a Big 4 consultancy. As a Technology Evangelist, his primary focus is Corporate Performance Optimization assessments focused on Cloud Computing, SaaS/PaaS/IaaS and Business Transformation Services. http://www.linkedin.com/in/davepuckett

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This Article was first published in the February 2012 Practical Lawyer a publication of ALI-ABA

http://www.ali-aba.org/index.cfm?fuseaction=publications.periodical&pub=PL

Introduction. If you are a neutral and are not interested in being creative in helping your clients resolve their differences then this article is not for you. The parties are only interested in the most creative and effective neutrals. And it applies to computer aided dispute resolution as well as computer generated dispute resolution.

 

eDiscovery – Should I care ?

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eDiscovery – Should I care ?

eDiscovery – Should I Care?
By Judge Arthur M. Monty Ahalt (Ret.)* and Judge Steven I Platt (Ret.)*

INTRODUCTION
The Information Age has finally arrived with all of its magnificent efficiencies and productivity changing ways. People and businesses conduct many of their necessary activities with some interface with technology – probably more that you think. If a computer, be it laptop or desktop, is in the house or office many of the activities are in some way recorded on a hard drive. If the computer is connected to a network or the Internet things become more complicated. Like it or not the world we live in has changed. No longer are we a paper based society. All of our activities revolve around a computer and its hard drive.

But we still think and act in terms of our paper world. And our paper world is a replication of the physical world we see feel and touch hundreds of times a day. So we are accustomed to organizing our information by sight. We have books on book shelves, book shelves in libraries, documents in files, files in file cabinets and on and on. Yet inch by inch, almost imperceptibly, our physical world is being replaced by a digital world. Ask yourself what you are now doing on a computer that 10 years ago you did with paper?

THE BASICS

So when you think of a law suit you have to train yourself to think in terms of the computer not paper. This will require most of us to go back to school. Fortunately, the basics are not that complex. The forensics are very complex, but learning enough to know what the right questions to ask is not complex. It does however; require some effort and sufficient curiosity and motivation to learn about a subject you might have instinctively not cared about earlier in your career. You used to have to think like a detective in the paper world. Now you have to think like a detective in the digital world.The key is discovering what consists of electronic stored information or ESI.

DISPUTE RESOLUTION
The Dispute Resolution World, whose most visible and conspicuous inhabitants are lawyers, judges, and other neutrals, is not an exception to the general rule. All of us need to adapt. That means we need to explore the digital world to the extent necessary to operate efficiently, economically, and ethically in a world that is not completely familiar to us. There is no going back.
Lawyers representing clients including government agencies and contractors need to understand the professional and ethical obligations which not only they, but their clients, have to retain, maintain, disclose and produce when required, electronic information and documents. Furthermore, counsel needs to know that these obligations can arise even before litigation is formally filed. Counsel also have a continuing professional duty which can include monitoring their clients compliance with the standard for doing so. These standards are continually being developed by the courts through rules and by case law.
The federal and state judiciaries are addressing these issues both by promulgating Rules of Procedure and through both Appellate court and Trial Court opinions. The Trial Courts are coping and at times proactively engaging in preventative law measures by requiring early pre-trial case management conferences which specifically address e-discovery protocols and by the appointment of Special Masters when these problems are not prevented. It is important that counsel, the court and perhaps most importantly the Special Maters appointed by the Courts to wade through the complexities of the e-discovery processes, protocols and perhaps even some of the forensics actually know the latest rulings in the field of e-discovery, but also the everyday realities of the practice of law. That means they know for example that the law requires “reasonable efforts” not perfection and that some errors are almost inevitable due to the volume and complexity of the stored electronic information. The Special Master should also know that the increasing number of motions for sanctions are not all meritorious and that many of these filings needlessly drive up the cost and time of litigation. The Special Master should also recognize and be familiar with the term “Claw-back Agreement”, Privilege and other concepts spanning the modern practice of law in the digital world and era.

CONCLUSION

If you are a lawyer who represents clients in court you will be making a very big mistake if you do not read Craig Ball’s collection of articles setting forth the duties and obligations of counsel. Your professional life could depend on it. See www.craigball.com. Not only is Craig one of the foremost authorities on the subject of eDiscovery, he is a world class persuader who has the gift of being able to communicate highly technical material in a simple, plain yet persuasive way. We would compare him to the immortal Professor Irving Younger. Yet Craig is just a regular guy and good friend who loves lawyers, judges and his fellow man. The ABA maintains a list of EDD resources on the web at http://www.abanet.org/tech/ltrc/fyidocs/ediscovery.html

This article as well as other related articles can be found on
www.virtualcourthouse.info.

* Judge Ahalt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate, construction and electronic deiscovery disputes. www.montyahalt.com

* Judge Platt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate ,construction and electronic discovery disputes. http://theplattgroup.com/

 

Drafting an Arbitration Provision The VirtualCourthouse Way

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Drafting an Arbitration Provision

 The VirtualCourthouse Way

By Judge Arthur M. Monty Ahalt (ret.)

VirtualCourthouse provides a fresh new approach to arbitration.An approach which provides flexibility and cost savings not available through AAA, JAMs, National Arbitration Forum. Have you noticed that arbitration has become more time consuming and more expensive as each year passes. How has that happened when the whole notion ,50 years ago was, for Arbitration to reduce the cost and time of litigation? Well, one observation would lay the blame at the foot of trying to provide too many rules to cover to many possibilities. Take a look at any major ADR provider’s rules – in many cases they are more involved than a courts rules of procedure.

Here is how the unaware gets caught up in that dilemma. Client engages a lawyer to draft a contact. Lawyer suggests to client that it is best to insert a provision in the contract agreeing to arbitrate any dispute. Client is aware of all of the horror stories about the cost of litigation and says “ by all means keep me out of court “. Lawyer inserts a provision which says – “ Any dispute between the parties will be arbitrated in accordance with the rules of the American Arbitration Association.” Two years go by and the parties have a major disagreement. One party looks up the AAA rules and finds out that the AAA rules require the claim to be filed with AAA. The parties now have no choice about how much will be charged or who the arbitrator will be.AAA’s panel of neutrals are not competitively formed. AAA restricts the number of neutrals – never a good idea as that type of activity keeps prices high and many highly qualified neutrals off of AAA panels. They have agreed to a dispute resolution service that provides little flexibility – many would say more expensive than court.Many attorneys find the AAA administrative process to be cumbersome, unwieldy and time consuming.

What then is the best way to draft an arbitration provision in a contract ? The first order of business is to understand the legal territory. Generally speaking, arbitration agreements are enabled by Federal and State law -the Federal Arbitration Act or the Uniform Arbitration Act. Both Federal and State Acts provide similar provisions, although there are significant differences in some special areas. Both Acts are similar in that they provide for:

  • Enforcement of agreements to arbitrate;
  • The appointment of an arbitrator where the parties cannot agree;
  • The subpoena of witnesses;
  • The confirmation of awards by judgement in court.

When drafting an arbitration provision in a contract the important items to consider.

  • Administration Cost 
  • Identity of the neutral
    • Greatest number of qualified neutrals to select from 
    • Closed panels increase costs and are anti- competitive 
    • Allowing the parties the opportunity to agree on a neutral 
  • Neutral compensation 
  • Simplification of the rules without sacrificing important legal rights
  • Flexibility – Does an ADR provider have the ability to change ?
    • Reduce Costs 
    • Adopt new technology

The key issue here is to provide the maximum amount of flexibility so that a fair , fast and inexpensive conclusion can be reached. When the parties reserve the right or alternative to select the ADR solution provider until a dispute arises they build in cost flexibility. The alternative is to select and name an ADR solution provider that has the same flexibility built in. VirtualCourthouse provides that flexibility.

The VirtualCourthouse Rules are flexible yet binding –

1. The rules of arbitration or mediation are what the parties agree. The neutral will ask the parties if they have agreed upon rules. If the parties cannot agree on the rules or disagree on specific rules then the rules will be as the neutral determines appropriate for the parties.
2. Neutral Selection. The neutral (arbitrator, mediator) will be determined by the agreement of the parties. The parties by agreement may request VirtualCourthouse to designate a neutral. Before VirtualCourthouse designates a neutral VirtualCourthouse will consult with the parties. If the parties cannot agree then either party may petition a court of competent jurisdiction to appoint a neutral.


Provide your client with the best alternative chose a VirtualCourthouse contract provision now – click here for contract provisions.
Some folks will maintain that these provisions are not strong enough to make sure that they stay out of court. But, stay out of court at what price. If the parties or anyone wants to be truly adversarial than the matter ought to be in the court system.Arbitration at all costs is not very wise. It is very common these days for cases to start in court and end up in arbitration after discovery and court ordered mediation have taken place.The court system with its rules and procedures while allowing adversaries to be adversaries still is based on the underpinnings of sound fair minded judges.

December 2010 Power of Our Words

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Power of Our Words

Judge Arthur M. Monty Ahalt (Ret.)

History records the power of words in the affairs of mankind.Rudyard Kippling put it this way – “Words are, of course, the most powerful drug used by mankind.”

Kipling used this metaphor in a 1923 speech he made to the Royal College of Surgeons in London . He uses the comparison of words to drugs to describe the persuasive effect words can have on another person. As he says in the next sentence of the speech, “Not only do words infect, egotize, narcotize, and paralyze, but they enter into and colour the minutest cells of the brain. . . .” A vivid description of the ability of a person to use words to change and influence the way another person thinks and feels. Whether written or spoken, words have the power to change and transform the world around us.Words inspire emotions for good as well as bad – they inspire love and friendship or hate and anger.They evoke sympathy and compassion or judgement and rejection.Scripture records that God spoke the world into existence with words and that words have the power of life and death.

In the legal profession words are the tools of the trade – the secret to accomplishment of a client’s lawful objective. The transactional lawyer painfully chooses the words which “express the intent of the parties’ absent any ambiguity.
To the litigation lawyer words are the first vehicle of persuasion or as misused the delivery of destruction and misery. A really competent lawyer – what I call the winning lawyer – changes the choice of words in different arenas.

The wrong choice of words is the leading factor in an advocates failure to persuade.Remember now Aristotle’s Elements of Persuasion.
Logic
Emotion
Credible Believability

All three elements have to be accomplished largely through the use of words or pictures painted by words.Thus, in close case the lawyer who uses “verbal fisticuffs” LOSES THE EMOTION OF THE DECISION MAKER AND PERSONAL CREDIBILITY AND THEREFOR BECOMES UNWORTHY OF BELIEF. The confusing occasions of the mean spirited, sharp tongued lawyer winning the day are usually attributable to unbeatable facts and law. In other words no one – even the incompetent-could lose the case.

When the lawyer leaves the court room for the mediation room a major change in the choice of words is necessary for a successful end to a dispute. If a mediation lawyer walks into a mediation and in the opening statement starts to use sharp, mean spirited words it is almost impossible to rescue the mediation. On more than one occasion I have called a recess and asked to speak to each lawyer separately (without their clients) – usually picking the non-offending lawyer to go first. Privately, I can make sure that the lawyer knows the consequences of the chosen words and make some suggestions for a new choice of words. Suggestions like , “we could think about that”, “ I will consider that”, and “ that is an interesting point”.

Always Have a Plan

When choosing the words that will be used ask the question – what do I wish to accomplish by my words? Then choose the best words to accomplish that objective. Make sure you have a plan – then chose words to accomplish that plan. First write the words down then speak them then think about your choice again. When it comes to words always – Plan , Write, Speak and then Plan Again.

by – Judge Arthur M. Monty Ahalt ( Ret.)

USING EVALUATIONS IN MEDIATION

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USING EVALUATIONS IN MEDIATION 

Dwight Golann [1] and Marjorie Corman Aaron [2]

 

  1. Introduction

Evaluation is a controversial issue. Some mediation theorists believe that the technique has no place in “true” mediation, a purely facilitative process in which parties are left free to make their own judgments about the merits of a case without interference from the mediator. [3] We hold a different view. Evaluation is a legitimate weapon in the mediator’s arsenal, one that can be either effective or explosive depending on how and when it is used.

 

  1. Evaluation Defined

What is evaluation? It is a process in which a neutral expresses an opinion as to the likely outcome or value of a legal claim or defense were it to be adjudicated. Evaluation can focus on either a single issue or on the overall result in a case. It can be expressed in ranges (“the damages could range from $25,000 to $75,000”); numeric probabilities (“40% chance”); or as a precise number (“a $100,000 case”). An evaluation can be expressed with certainty (“The plaintiff will win … “) or studied vagueness (” I have some doubts about… “). Evaluation is sometimes hard to distinguish from “reality testing.” Almost all mediators are willing to reality test-that is, to question disputants about the strengths and weaknesses of their cases. In this role, a mediator acts as a devil’s advocate, pushing the disputants to become more realistic without completely revealing his or her personal opinion about the merits. However, as mediators become more and more familiar with the facts and arguments, it is almost inevitable that they will form views about how a court would rule on a case. Parties, not expecting mediators to be potted-plants, are aware that the judgment-formation process is going on.

 

Mediators may be less successful than they think at hiding their opinions about the merits. Reality testing is a spectrum in which the line between mere testing and evaluation is not always clear. For example, a phrase such as “What are your thoughts on the causation issue?” is unlikely to be controversial. But such commonly-asked questions as “Do you think there’s a problem on causation?,” “What would you say in response to their argument on causation?,” “Don’t you have a causation problem here?” or “You don’t think that’s an issue?” are increasingly likely to be interpreted as evaluative opinions. Even if the language used by a mediator is scrupulously neutral, his or her feelings about the strength of an argument may well show unconsciously in facial expressions and body language. It is likely that litigants perceive evaluation going on in many situations where a mediator would describe behavior as “reality testing.” The fact that evaluative input of this nature is common in mediation makes it important for mediators to understand how to do an evaluation properly, and for lawyers to know when to request that such techniques be applied.

 

III. Benefits and Dangers 

Like most other tactics, evaluation has both potential benefits anddangers. In the case of evaluation, however, both the risks and the advantages are relatively large.

.

  1. Benefits

An evaluator’s primary goal is to change litigants’ assessments of the strength of their adjudication alternatives. Often both sides in a legal dispute honestly believe that they are likely to win in court. Mediators find that when parties put their predictions in terms of percentages, their forecasts often total 150% or more; that is, each side thinks that it has a much better than even chance of prevailing. Given these clashing predictions, it is not surprising that even good faith negotiations often reach impasse. The causes of such misjudgments are complex. Psychologists have demonstrated, for example, that people tend to form perceptions of situations quickly, then unconsciously ignore any information that contradicts their view, a phenomenon called selective perception. People’s judgments are also influenced by their roles in litigation, an effect known as advocacy distortion. For example, in an experiment at Harvard Law School, students were given identical files describing an auto accident, then asked to evaluate the plaintiff’s chance of winning in court. Those assigned the role of lawyer for the accident victim assessed her chances of prevailing at a mean of 65%. By contrast, students who were given the same case file, but told that they represented the defendant insurance company gave the plaintiff only a 48% chance. Similar discrepancies appeared in the students’ estimates of the damages the plaintiff would recover if she won: “plaintiffs” placed the damages at a mean of $264,000, while “defendants” projected only $188,000. Harvard Business School students asked to carry out the same study showed very similar biases. These kinds of advocacy distortions are nearly universal. [4]

 

 

 

 

Evaluation can cut through litigants’ misjudgments about the merits of a case. When disputants hear that a neutral person, after studying the facts and listening to the arguments, disagrees with their predictions of victory, they are motivated to look again at the case and ask what the evaluator has seen that they have not. Evaluation can thus help disputants overcome the impact of selective perception, advocacy bias and other factors that distort parties’ assessment of the merits. An evaluation can also satisfy psychological needs. It may give litigants the emotional experience of having a day in court, in which they can present their arguments to a neutral person. If bargainers realize that concessions are necessary, but do not want to move from entrenched positions without having a rationale, an opinion can provide the necessary psychological cover. Similarly, insurance adjusters, government officials, and others who must answer to supervisors and constituencies outside the mediation, often welcome an evaluation because they can use it to deflect after-the-fact criticism of their decision to settle. Finally, evaluations can help to resolve internal disagreements within a bargaining team, for instance by assisting a litigator who sees serious risks in a case persuade an unrealistic client of the need to settle.

 

 

  1. Dangers

Unfortunately, evaluations pose dangers that may outweigh their benefits. First, an evaluation may freeze the bargaining process. Once the parties to a mediation know that an evaluation is coming, they are likely to stop negotiating: After all, why confront painful decisions about concessions when the neutral will soon vindicate one’s position? But once the evaluation is given, it may be treated as a “take it or leave it” offer. After a respected outsider has stated the “right” or “fair” result in a case, it is very hard for a defendant to offer more, or a plaintiff to accept  less, than the number the evaluator has set. The strength of this “take it or leave it” effect is inversely proportional to the confidence of the negotiators in themselves and in the evaluator. The more concerned a bargainer is about being second-guessed by a client or supervisor, the less willing he or she will be to accept a result less favorable than the evaluation.

 

Equally significant is the potential impact of an evaluation on the mediator’s credibility with the litigants. A neutral’s greatest asset in bringing about a settlement is the rapport and confidence that he or she develops with the parties and their counsel. As long as litigants see the mediator as an honest, neutral and competent facilitator of the process, they are willing to listen to tough questions, accept coaching about their bargaining tactics, and consider settlement recommendations that require painful compromises.

 

If, however, a mediator delivers an evaluation too quickly or in the wrong way, the “losers” in the evaluation are likely to react badly. A party, its lawyer, or both may decide that the neutral has “gone over to the other side.” Perhaps, they think, the neutral has been duped by clever arguments, or seduced by promises of future business. Indeed, if the evaluator disagrees with both sides, as is quite possible, everyone can be left angry. Once this happens, even the most innocent comment or gesture by the mediator will be filtered through feelings of suspicion and antagonism. A badly-done evaluation can destroy the mediator’s power to influence the losers, and perhaps everyone, in a case.

 

There are less dramatic dangers as well. Evaluators focus on the legal merits and may fail to address less obvious barriers which may be frustrating a settlement. If the problem, for example, is that a key decision maker in any settlement is not at the bargaining table, an evaluation is unlikely to uncover the issue. If the obstacle is a party’s unresolved feelings of grief, a lawyer’s anger, or other strong emotions, an evaluation, with its emphasis on legally-relevant facts, will not deal with it. In general, evaluation does not address the hidden issues that often drive lawsuits. More seriously, evaluation tends to hide these issues because it focuses the disputants solely on the legal merits of the case. Evaluation, in other words, often “solves” the wrong problem and, by doing so, obscures serious hidden causes of impasse.

 

All this said, the right kind of evaluation, done at the right point and handled in the right way, can be the ingredient that breaks a seemingly hopeless deadlock.

 

  1. How to Give an Effective Evaluation

 

  1. Whether to Evaluate

 

Our basic advice about whether to evaluate is “only if necessary.” Unless required to break an impasse, evaluation’s inherent risks, make it unwise. The fundamental diagnostic questions that a mediator should ask in every dispute are the following:

  • What obstacles are preventing the parties from settling this dispute themselves?
  • What meditative strategies are most likely to overcome these barriers and bring about a settlement?

 

In most cases, the barriers that are frustrating agreement, such as procrastination, the need to vent arguments and emotions, poorly conducted positional bargaining, lack of information or hidden psychological issues, do not relate to the parties’ view of the merits. Specific meditative strategies are available to address these issues, [5]making evaluation inappropriate.

 

In some situations, however, even after other barriers have been diagnosed and treated, the major obstacle to settlement remains the parties’ (or their lawyers’) inability or refusal to accurately assess the value of their trial alternative. Even pointed reality testing has not (or is unlikely to) overcome the effects of selective perception, advocacy bias and other psychological forces that distort litigants’ perceptions. [6] In such situations, a mediator’s only remaining options may be either to conduct an evaluation or admit defeat. If evaluation is the BATL (Best Alternative to Litigating), [7] there’s no harm in the attempt.

 

 

  1. When to Evaluate

As should be clear from this discussion, we believe in delaying an evaluation until as late in the mediation process as possible. Waiting serves several important purposes. First, it allows the mediator to explore fully the other possible obstacles to settlement. If, for example, a key issue in a dispute is a party’s need to express grief over a loss or anger at a business partner, deferring an evaluation allows the mediator to discover the issue and work on it. This kind of exploration is much more difficult after an evaluative “verdict” has been handed down. For a discussion of these and other barriers and specific strategies to address them,

 

Even if the problem is limited to the legal merits, it does not follow that an evaluation is always required. The cause of the parties’ differing assessments of the merits may be that one side lacks key information; if so, a mediator’s initial response should be to arrange a data exchange. It: instead, the problem is that one side fears that a settlement would create a precedent, a neutral should focus on confidentiality guarantees. In our experience, it is usually possible to solve many merits-related problems without the need for an explicit evaluation by the mediator.

 

A second reason not to evaluate quickly is that a mediator will have more time to build and strengthen the parties’ trust. As the process goes forward, parties and lawyers get to know the mediator much better on both a professional and a personal level. In formal sessions, the participants are able to watch the mediator in action and observe how he or she handles challenges. During informal conversations and telephone contacts, the parties and counsel begin to get to know the mediator as a person. In this way, an effective mediator can gradually build up the disputants’ trust and confidence. The mediator can then draw on this reserve to cushion the shock of an unwelcome opinion on the merits. Also, the mediator will have the opportunity to learn more about the parties in order to phrase his or her evaluation in terms that will be most palatable to the audience.

 

In addition, when a mediator prefaces the evaluation with questions and discussion of the merits, the parties often become more realistic about their cases, narrowing the scope of any opinion that the mediator must offer. The litigants may also realize that weaknesses in their case which they had hoped to keep hidden are in fact apparent to the other side. Finally, the disputants see that the mediator has heard them out and is seriously grappling with the facts and arguments they raise. The participants also learn that the mediator is raising their strongest arguments with their adversaries. As the mediation progresses, then, the disputants appreciate both that the mediator is giving them a fair hearing and has “done the homework.” They are able to come to terms with the fact that the holes in their case are known.

 

There is one final “when” issue: Should a mediator obtain the consent of the parties before going forward with an evaluation? At one level, this is an issue of contract. Some mediation agreements require neutrals to get the assent of all parties before offering an evaluation, while other forms leave the issue to the mediator’s discretion. [8] A mediator owes participants the obligation to discuss process issues. But if, after this is done, the parties choose to remain in the mediation, it is best that the neutral retain the discretion to evaluate if necessary to stimulate a settlement.

 

Our overall advice about when to give an evaluation is this: Evaluate as late in the process as possible. As a rule of thumb, never do so until at least the first round of caucuses is completed. Only consider evaluating after you have had a reasonable chance to diagnose and treat other obstacles to agreement, using less risky tactics such as reality testing, and have talked with the disputants about your intentions. In our view, evaluation should usually be the final and almost never the first, arrow in a mediator’s quiver.  

 

  1. What Standard to Apply?

The most common standard used in evaluations is one of prediction: The neutral attempts to forecast how an arbitrator, judge, or jury would resolve certain issues or the entire case, if the party opted for a binding decision.

 

This predictive standard may seem self-evident, but in practice it is not. Mediators sometimes focus on how they personally would decide a case. This is irrelevant, however, since neutrals rarely serve as judges in their own unsuccessful mediation’s. [9] This standard is also dangerous because it puts the mediator into the position of personally rejecting one or both parties’ arguments, making it even more likely that they will come to view him or her as an enemy.

 

Another standard mediators sometimes apply is: “What will it take to settle this case?” In other words, given the negotiation dynamic, what package of terms is likely to be minimally acceptable to everyone in the dispute? If, for instance, one side is stubbornly unrealistic about the likely court outcome, a “What will it take’)” opinion might bend the proposed terms toward that view in order to secure agreement that is easier for parties to accept.

 

Although there is nothing inherently wrong with this approach, a serious problem arises when disputants think that they are hearing a pure merits-based evaluation but instead receive a “What will it take?” recommendation. For a mediator to offer a settlement recommendation under the guise of a legal evaluation is both unethical and capable of creating serious practical problems when parties discover that they have been misled.

 

Evaluators should give their best “straight” prediction of how the likely decision maker would resolve an issue or case. However, when the litigants explicitly agree to receive a settlement recommendation rather than a merits evaluation, then a “What will it take?” opinion is appropriate.

 

 

  1. Structuring the Evaluation 

 

The first issue for a mediator to consider is whether he or she will perform the evaluation, or suggest a person outside the process. There are many advantages to an outsider’s evaluation. First, it distances the mediator from the process, greatly reducing the risk that a disappointed disputant will hold the results against the mediator. Second, the mediator and lawyers can select an evaluator with the credentials most likely to impress the parties, without concern about balancing evaluative credentials with facilitative skills. If, for example, the parties would be most swayed by a prediction from an eminent jurist, they can retain a former chief justice without worrying about whether he or she knows how to mediate.

 

A third advantage of going outside is that it allows the mediator to focus energies on a single role: that of facilitator. Fourth, it solves the nagging issue of what a mediator who also evaluates should do with any information that may have been disclosed on a confidential basis in caucuses. [10]

 

There are practical difficulties, however, with using an outside evaluator. First, unless the two roles are assigned at the outset, making arrangements for an outsider to come in will usually require adjournment of the process and disrupt its momentum. When parties are allowed to cool off, they may harden their positions. Second, retaining an outsider is more expensive than having the mediator give an opinion, and many cases will not support the cost and delay of additional briefing. Finally, even with the mediator’s assistance, the parties may be unable to agree on who should perform the evaluation. For these reasons, the parties almost always request that the mediator take on the task.

 

  1. Limit the Issues – The next question is how much of the case to evaluate. Novices often assume that an evaluation must cover the entire dispute, but this is not so. The legal issue driving the parties’ impasse may be a relatively narrow one (for instance, will the liquidated damages clause of a contract be enforced?). If so, there is no need to evaluate other issues on which the parties are closer to agreement. Indeed, if the evaluator’s view of those other issues differs from that of the parties, evaluation would stimulate disagreement rather than resolve it. 
  2.  Piggyback Whenever Possible – A corollary to not evaluating issues unnecessarily is to build on the parties’ opinions as much as possible. A plaintiff, for example, may have a realistic take on liability but an inflated view about damages. If so, it is more effective for an evaluator to say that he or she will accept the party’s liability percentage “for argument’s sake,” although perhaps noting mild disagreement with it, then press the evaluator’s opinion about the likely damages. It is easier to change a person’s mind on one issue than two, and an evaluator’s “concession” on one point will often induce disputants to accept his or her views about other, more controversial issues in the case.
  3. Think about Who Needs to be Influenced – One’s tendency is to assume that evaluations are done solely for people in the mediation room. This is often not true. The real cause of an impasse may be a decision maker in a distant city who has not participated in the mediation or felt its impact. Or negotiators may be hesitating out of fear that a decision to compromise will expose them to criticism from supervisors or outside constituencies. If the problem is absent decision makers, the evaluation can often be used as an event to get their attention, and sometimes their actual presence at the scene. There is something about the idea of even a non-binding “verdict” being handed down that brings a case onto the radar screens of persons who have felt too busy to pay attention to it before. If the issue is fear of being second-guessed, and the potential critic cannot be brought to the mediation, it may make sense to put the evaluation in the form of a written opinion that a party can take to his or her constituency or place in a case file. If an evaluation is to be used to convince persons outside the process, the credentials and public reputation of the evaluator become more important than his or her personal qualities. In such circumstances, a mediator will not be able to use the trust he or she has built up during the proceeding to sell the result, and may want to select a third person whose resume will impress an absent decision maker.

Example: A mediator was working on a dispute between a government loan agency and a borrower who had defaulted on his mortgage. As the mediation went forward, it became clear that the loan foreclosure had been handled badly by the original lender, making it difficult now for the agency, which had inherited the loan, to collect on it. Still, the agency refused to settle the case. In caucus, the agency disclosed that it needed a letter from the mediator evaluating the case and endorsing the result in order to settle. The agency was not willing to have the letter shown to the borrower; instead, it would be used by the agency to convince a review board to approve the deal. The borrower’s counsel agreed to these terms, the mediator wrote the letter, and the case was settled.

D .Choices in Effective Format – Before undertaking an evaluation, consider what format will maximize its contribution to a settlement:

  • What data will the evaluator receive? For example, will the parties rely on existing documents or prepare special briefs? Note that special briefing is more likely to be necessary if an outsider is brought in to do the evaluation.
  • Do the parties need the feeling of having a “day in court”? Will the evaluation have more weight if they are allowed to make formal arguments? If so, consider conducting the process in a “moot court” format.
  • Should the opinion be delivered in caucuses or during a joint session? If it is delivered to the disputants in each others’ presence, the losers may feel humiliated; creating anger that will disrupt the process. If, on the other hand, the evaluation is presented in separate caucuses, the disputants may suspect that the evaluator is delivering different opinions to the two sides.

 

We rarely ask for special briefing because it would usually require adjourning the process. We also avoid “moot courts,” because to hold, one risks elevating the importance of an evaluation from impasse breaking tool to final pronouncement in a case. We also strongly favor delivering evaluations in caucus. This is not in order to deliver different legal analysis or numerical evaluations to each side. Rather, it is because evaluating in caucus allows us to use phrasing and arguments calculated  to help the listeners to accept our opinion. In caucus one can, for example, piggyback one’s views on bits of confidential information that party has shared. The mediator-evaluator could, for instance, concede that an opposing witness might be lying as that party has been arguing but go on to say that the witness has a demeanor that would impress a jury. Evaluating in caucus allows us to more frankly acknowledge strengths in each side’s arguments, and build on that foundation to deal with more controversial issues.

 

The problem of demonstrating that the evaluator is delivering the samc opinion in each caucus is a real one. It can be addressed, for example, by writing a bullet point form of the evaluation on a flip chart or notepad and carrying it from one caucus room to another. Putting the opinion in writing has the extra benefit of giving visual reinforcement to unwelcome news and reduces opportunities for the parties to engage in “selective perception” of the evaluation.

  1. Consider Language, Culture and Commonality –A mediator’s choice of language, tone and cultural referents in presenting an evaluation will greatly influence its impact on the parties. One’s individual and cultural background is what it is. But a bit of chameleon ship in style and manner can increase the persuasiveness of the opinion, particularly when its content is critical. If, for example, one party (whose team may include a lawyer, expert and several client representatives) is informal, given to slang and colorful metaphor, it may be effective to use that style in their caucus. If the other party is more formal, deliberate and analytical, the mediator will do well to choose a tone and language likely to resonate with that group. In short, this advice on choice of style and manner is “When in Rome … ,” particularly when the substance of the message is relatively unfavorable. This is another reason to present evaluations in private caucuses with each side.
  2. Be Empathetic –Acknowledge the listening party’s concerns and arguments and why a result you see as likely or possibly may seem unfair or surreal. Predictions are not pronouncements of right and wrong; you can actively listen to and reflect or empathize with a party’s feelings and responses.
  3. Emphasize Differences in Perspective –It is sometimes difficult for disputants to accept that someone who has the same information as they do nevertheless disagrees strongly with their judgments. One defense is to emphasize that in doing an evaluation, you are not giving your personal opinion about what is a fair resolution, but instead are predicting how other people whom the disputants have never met (a judge or jury) would react.

 

We also note the special advantages of being neutral. Because we are not arguing the case and have no personal stake in its outcome, we are free to think about it from the perspective of an uninvolved person. It is difficult for disputants to admit that their judgment may be distorted by their roles in the case (although they readily see that the condition affects their opponents and perhaps their clients). Our practice is to mention the point but not to stress it heavily.

  1. Distance Yourself from the Opinion –As we have noted, it is very important that the mediator not become personally identified with an unwelcome opinion. One method of doing this is to follow the guidelines set out above: empathize with the problem that this creates, note that you will never sit in judgment on the matter, use the language of prediction, and so on. Another way for mediators to distance themselves is to use the technique known as decision analysis. Decision analysis is a mathematical technique that allows analysts to break down a case into a series of choices and chances (win on summary judgment or not; win or lose at trial; recover a high, medium or low verdict, etc.). The case is then “graphed out” in a way that lets the parties see the possible outcomes in the litigation and weigh the probabilities of each one. Individual choices and chances are then multiplied out, yielding an overall monetary value for the case. Decision analysis allows mediators to talk with disputants in a relatively dispassionate way about what could happen if a dispute is adjudicated. It allows both the neutral and the parties to “let go” of emotional arguments and consider litigation risks in a logical manner. Also, because participants are asked to discuss and estimate the percentage likelihood of success on each issue before calculating its impact on the case’s overall discounted value, they may provide more honest assessments. For this reason, decision analysis can be a constructive vehicle for discussing the parties’ or the mediator’s case evaluation. [11]

 

VII. Conclusion 

Evaluations rarely end cases themselves. Rather, they provide a strong “dose of reality” that helps break down differences in how the parties assess their no-agreement alternatives. Assuming an evaluation is necessary; therefore, mediators need to think in advance about how to use them to promote further negotiations: 1. Is reflection or consultation time needed? In simpler cases where the decision makers are present, a mediator can give an evaluation orally and then ask for a new offer. But when the case is complex, the results shocking to the listeners, or the evaluation calls for an offer outside a negotiator’s authority to settle, an adjournment will probably be needed. 2. What kind of bargaining should occur after the evaluation? Who should make the next concession? Are inventive terms possible that would obscure or cushion one side’s defeat in the evaluation? Should the mediator make a compromise proposal, to some degree influenced by evaluation results? If so, should the proposal be presented as a “mediator’s proposal” basis that allows each side to conceal its willingness to agree unless the other side has assented as welI? [12]

 

(AAA HANDOOK ON MEDIATION, 2010)

Dwight Golann

Professor of Law, Suffolk University Law School

Marjorie Corman Aaron

Professor of Clinical Law and Director, Center for Practice,

University of Cincinnati College of Law

[1] Dwight Golann is a professor of law at Suffolk University Law School in Boston.

He is an active mediator of legal disputes and serves as a distinguished neutral for the

CPR Institute and panels iu Europe and Asia. Professor Golann is the principal author of

MEDIATING LEGAL DISPUTES (2009) and co-author of RESOLVING DISPUTES (2010).

Additional information is available at www.golannadr.com.

 

[2] Marjorie Corman Aaron is a Professor of Clinical Law at the Uuiversity of

Cincinnati College of Law and Director of its Center for Practice. Also a mediator and

arbitrator based in Cincinnati, Ohio, she was formerly Executive Director of the Program

on Negotiation at Harvard Law School and Vice President and Senior Mediator at

Endispute, Inc. Ms. Aaron received a B.A. from Princeton University and a J.D. from

Harvard Law School. She is the co-author of MEDIATING LEGAL DISPUTES (2009), from

which this chapter is drawn.

 

[3] Some commentators believe that for a mediator ever to evaluate raises ethical questions. For example, the Standards of Conduct for Mediators promulgated by the American Arbitration Association and the American Bar Association, state that “A mediator shall conduct the mediation fairly, diligently and in a manner consistent with the

principle of self-determination by the parties.” The ABA/AAA standards do not say explicitly whether or not mediators are allowed to evaluate, but the commentary to them states that “Mixing the role of a mediator and the role of a professional advising a client is problematic … A mediator should, therefore,refrain from providing professional advice” and refers to the option of sending parties outside the process for a “neutral evaluation.” For an interesting discussion of the practice-ot~law issue, see Carrie Menkel-Meadow,  Is Mediation The Practice of Law?; Bruce Meyerson, Lawyers Who Mediate Are Not Practicing Law, 14 ALTERNATIVES 57,74 (June 1996).

 

[4] These findings are consistent with the results of a long series of experiments showing that the roles people adopt in both litigation and non-litigation contexts often impair their ability to analyze data accurately. See, for example, Max. H. Bazerman, Negotiator Judgment: A Critical Look at the Rationality Assumption, 27 AM. BEHAV, SCI. 211,220-22 (1983)

 

[5] For a discussion of these and other barriers and specific strategies to address them, see GOLANN ET AL., MEDIATING LEGAL DISPUTES (2009)

[6] For a discussion of other psychological forces that can distort a litigant’s assessment of the legal merits, and  methods to deal with them other than evaluation see id.

[7] Our apologies to, Roger Fisher and William Ury, the inventors of the concept of Best Alternative to a Negotiated Agreement, or “BATNA.” See R. FISHER, W. URY AND B. PATTON, GETTING TO YES (1991) pp. 97-106.

 

[8] For example, the model agreement developed by the CPR Institute of Dispute Resolution requires that all parties assent before an evaluation can be given, but the standard JAMS agreement leaves the issue to the mediator. The American Arbitration Association has no specific rule on the subject, but as noted in note 3 the ABA/AAAA STANDARDS OF CONDUCT FOR MEDIATORS can be read to define “neutral evaluation” as a process separate from mediation.

 

 

[9] The exception, of course, is the process known as “med-arb,” in which the disputants consent to have the mediator render a binding decision if they cannot reach agreement.

 

 

[10] One possible solution is for the mediator to disclose that his or her assessment rests in part on “secret ammunition” confided by one side. Among other things, this makes it easier for each party to understand the neutrals opinion.

 

 

[11] For an explanation of how decision analysis can be used in mediation, see Marjorie C. Aaron, The Value of Decision Analysis in Mediation Practice, II NEGOTIATION J. 123 (1995); M. C. AARON, Chapter 8 in MEDIATING LEGAL DISPUTES, supra n, 3

 

 

[12] The essence of a “mediator’s proposal” is that the mediator proposes the same package of settlement terms to all sides, but under the ground rule that each side can tell the mediator in confidence whether the package is acceptable. If so, there is a deal. If not, the rejecting party will never learn whether its adversary was willing to compromise. This mediation process. format makes it easier for a party to explore a compromise without endangering its bargaining position if an agreement is not reached.

 

 

by Dwight Golann and Marjorie Corman Aaron – 2010