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What You Should Know About Online Dispute Resolution

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What You Should Know About Online Dispute Resolution

 

Hon. Arthur M. Monty Ahalt (ret.)

 

Online dispute resolution (ODR) has all of the advantages of other forms of ADR—and it is faster and more cost-effective.

 

Less than 15 years ago the legal community struggled to implement alternative dispute resolution (ADR) into the case management programs of federal and state trial courts. This effort was largely motivated by overcrowded trial dockets which allowed cases to remain pending four and five years before a trial date. Now ADR is an accepted component of most case management programs of any trial court and reaches into almost every segment of our lives. Schools, prisons, communities, businesses, consumers, and families now have ready access to alternative dispute resolution training and specialists. Many state courts have established conflict resolutions programs such as the highly effective and award-winning Mediation and Conflict Resolution Office (MACRO) of the Maryland Judiciary. See http://www.courts.state.md.us/macro/.

ADR has been around in commerce since the 1920’s and the founding of the American Arbitration Association. Many date ADR to biblical times and King Solomon. Originally the focus was on providing commercial entities with alternatives to adjudicating their disputes in the court. During the next eight decades many barriers have been overcome; however, the paper- based alternatives of the past that paved the way for ADR have become expensive and time- consuming: in some cases it’s as if a new ADR bureaucracy has replaced the old judicial bureaucracy. Although face-to-face and paper-based alternative dispute resolution is not as time- consuming and expensive as litigation in the courtroom, the time and expense of paper and face-to-face meetings denies many parties the opportunity of a fair and neutral resolution of a genuine dispute.

The ability of technology—especially the Internet—to make many business processes more efficient is now making it clear that online dispute resolution (ODR) is the next frontier of ADR. The internet promises to make more disputes reachable by ADR and to facilitate the resolution of disputes faster and at a lower cost. But like many shifts from paper to technology, a clear strategic pathway has yet to appear.

 

WHAT IS ONLINE DISPUTE RESOLUTION ? • ODR provides the ability for two (or more) disparate parties to settle their dispute using the Internet. Sometimes this involves lawyers and mediators and sometimes it does not. It depends on the vehicle/provider that the parties agree to utilize to resolve their claim.

 

History Of Online Dispute Resolution

The concept of ODR has been discussed in academic circles since the mid 1990’s. See www.odr.info.Professor Ethan Katish was a leading researcher and developer of concepts of ODR. From 1997-1999, Professor Katish mediated a variety of disputes online, involving domain name/trademark issues, other intellectual property conflicts, disputes with Internet Service Providers, and others. In the spring of 1999, he supervised a project with the online auction site eBay, in which over 150 disputes were mediated during a two week period. During the summer of 1999, he co-founded Disputes.org, which later worked with eResolution to become one of four providers accredited by ICANN to resolve domain name disputes. He is also an adviser to SquareTrade.com, an Internet start-up focusing on online ADR. There are over 20 internet companies listed on the ODR.info site which provide ODR online services.

As a Judge of the Circuit Court for Prince Georges County, Maryland in conjunction with my activities directing the nation’s first electronic filing pilot project and managing the courts civil docket I realized that dispute resolution could be aided by the Internet. The ideas were first published in a series of on-line articles by VirtualCourthouse beginning in 1996. See http://montyahalt.com/category/original-virtualcourthouse-articles/.  VirtualCourthouse.com™ was founded in 2001.

The VirtualCourthouse dispute resolution process models a court dispute resolution process delivered on the Internet using Web-based technologies:

A case is initiated and a list of Neutrals is selected and the Neutrals are ranked;

A system generated email is sent to the other party, inviting them to join the case;

The other party joins the case and a Neutral is agreed upon;

The Neutral reviews the case initiation, and sends an email to both parties, confirming the type of proceeding and the fees;

The claimant prepares a case presentation and uploads the scanned documents into the online case;

Once complete, a system generated email is sent to the respondent, advising them the claimant has completed their presentation, and now it is time for them to submit their case presentation;

Once the case presentations are complete, a system generated email is sent to the Neutral advising them to review the evidence and render a decision;

Once reviewed, a verdict is submitted online, and a system generated email is sent to both parties notifying them a verdict has been rendered.

 

VirtualCourthouse creates a marketplace by recruiting the neutrals, administering the electronic case file, and providing access to the system to members of the plaintiff and defense bar, including insurance staff counsel, claims agents, and the parties. It also VirtualCourthouse provides an independent forum by enabling parties to select qualified neutrals (typically judges or attorneys with specific experience), submit digitized materials, schedule an ADR event and track other activities throughout the effort to resolve the claim. Critical to the design of this service is its neutrality: VirtualCourthouse impartially facilitates neutral selection by providing structured communication among parties via a controlled and secure message service. Any party can attach digital exhibits such as digital photographs or scanned images of medical records. The Neutral can use the message service to communicate with parties. VirtualCourthouse streamlines every step in the process and minimizes the need and costs of unnecessary face-to-face meetings, mailing, and copying.

The VirtualCourthouse Dispute Resolution Engine (DRE) is a combination of multimedia technologies and business processes, integrated with a customer-friendly user interface. The DRE replicates the current process of dispute resolution in an online environment, removing constraints of time, expense and distance. The engine is a sequence of events utilizing Internet-based media technologies that are designed to resolve conflicts between two or more parties. The DRE enables the resolution of disputes by functioning as a middleware to connect the disparate business processes of attorneys, claimants and neutrals. The DRE permits the exchange of data between these business processes which would otherwise lack the technology interfaces essential to working together electronically. The engine, centralized through VirtualCourthouse.com™, is the electronic “glue” that binds these users of otherwise unrelated systems into a virtual private data and business process network.

The Internet creates an online marketplace for dispute resolution by bringing together parties with disputes and neutrals seeking a storefront for their services. Registered users are able to visit the “virtual” court 24/7, review the docket and conduct any proceedings under way. Lawyers are able to check on the status of their cases, view documents and make filings at any time. Case administration for the parties and the neutral by a case administrator is minimized as case administration activities are automated through the virtual private data and business process network

 

How Can ODR Help ADR?

ODR promises to enable ADR to become more efficient, faster and less expensive. By achieving those three improvements ODR will make ADR a real alternative to a greater number of disputes thereby bringing all of the advantages of ADR to a greater number of people. An examination of the ADR process and barriers to ADR will allow a deeper examination of the potential of ODR. The ADR process usually unfolds this way:

One party decides to pursue ADR, an existing agreement requires it, or a court or other authority requires it;

A neutral is selected. (This can be by suggestion and negotiation of the parties, identification of the neutral in an exiting agreement, or appointment of the neutral by a court or other authority);

The parties provide the neutral with written documentation of their respective positions;

An ADR session is scheduled;

An ADR session is held and conducted; and

A decision or report is rendered by the neutral.

 

Each of these steps can be automated by technology and the Internet. The goal of ODR is to reduce the time and cost of each step thereby making it available to greater number of people.

 

Change, Not Technology

The adoption of technology by businesses and individuals over the last two decades is astounding. Just 10 years ago managers of the nation’s largest law firms were struggling to get their lawyers to put computers on their desks and then actually use them. One manager of a firm found a creative strategy. He announced at a firm meeting that he was conducting a pilot to determine how best to use a computer in the practice. He was going to conduct the pilot with the 10 brightest lawyers in the firm. Anyone who was interested was advised to call his office. One by one, every lawyer in the firm called, and as soon as they did, a computer showed up on each lawyer’s desk. Adoption of the computer in the everyday life of that firm was well underway.

Today only a few laggards in the legal profession fail to use a computer. 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 to help become better lawyers. Those who have not embraced technology are losing the competitive battle.

So why is it that disputes are still largely 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. I learned these attributes of leadership from basketball great Jim Valvano. I was riding in my car to a Maryland basketball game against North Carolina State listening to Johnny Holiday’s pre-game radio show. Johnny was interviewing the State coach Jim Valvano. Valvano had just won a National Championship the year before. Shortly into the interview Johnny ask Coach Valvano what his secret to success was. Coach Valvano said rather nonchalantly and quickly, “Well Johnny you have to have a vision, then a strategy and you have to be enthusiastic, then you have to work like crazy to make sure that you accomplish the vision.” Coach Valvano said that his vision was to win the game on a shot at the buzzer. His strategy was to get to the last two minutes of the game no more than six points down. He was sure that his team could play strong enough defense in the final two minutes to make sure the other team did not score and he was sure his team could execute and score over that relatively short period of time. Sure enough over the years Coach Valvano executed his plan for success and he wound up being one of the most successful coaches. His life was cut short by a tragic and fatal fight with cancer, but the coach never gave up. His lesson and legacy will live on for years. Valvano’s formula for success has four parts: vision, strategy, enthusiasm, and work. 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’s easier to do it the old way:; and

“My computer is too slow.”

 

As VirtualCourthouse approaches the 1,000th case filing it has become obvious that ODR requires adoption by three separate constituencies—the claimant, the respondent and the neutral. Much like a stool, 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 leadership, strategy, and management. Over the past four years VirtualCourthouse has demonstrated that technology can elevate ADR to higher levels, but it requires the participation of all three legs of the stool: the claimant, respondent, and neutral. Leadership is key and the leaders in each constituency are stepping forward as the pioneer’s did and they are establishing new territory.

Eric Frye, a lawyer in Upper Marlboro, Maryland, continues to file his cases in VirtualCourthouse before he files in Court. Jeff Wigodsky with Karp Frosh, in Washington, D.C. has successfully adopted the same policy. Several insurance claims department have successfully integrated VirtualCourthouse into their claims examiner training process. The neutrals have had an easier time adopting as Judge Vincent Femia, Alan Feld and Cy Pickens will attest. The common denominator with all of these folks is their ability test the vision of VirtualCourthouse and overcome the reluctance to change.

Most people are risk-averse and they therefore resist change. “I have been doing just fine without all of this technology” is a familiar refrain. However, the evidence now is overwhelming that ODR will pay significant dividends to those willing to give it a try. The VirtualCourthouse team does a formal evaluation on every case filing and the results are truly exceptional. Over 90 percent of those responding are “very satisfied”—a “5” on a five-point scale—with VirtualCourthouse as a method of dispute resolution. About 90 percent are also “very satisfied” with the customer service. Now this does not mean that everyone is thrilled with the result, because as in all dispute resolution, expectations are not always achieved. And yes, there are occasional “technological” glitches and challenges. But that is where the ODR provider excels by its experience in overcoming these challenges. Even in the “paper world” not all is perfect and there are occasional problems and challenges to overcome. Who hasn’t had the experience of a paper file that has been lost or destroyed or a letter that was somehow lost in transit?

 

WHAT WORKS BEST IN ODR? • In developing a strategy to successfully implement an ODR project it is helpful to analyze what has been successful. What is becoming clear is that certain case criteria lend themselves to online activity, while other criteria lend themselves to the physical or “bricks-and-mortar” world.

Online activity works best when there are only two parties and when the substance of the dispute is only monetary. ODR also has been effective when the dispute arises out of Internet commerce. ODR is difficult when there are many parties, the substance of the dispute is emotional or there is a large amount of money in controversy.

Square Trade has handled thousands of disputes which have arisen between the buyer and seller of goods on eBay. Using this online solution a neutral mediates the dispute in an online chat format. While Square Trade no longer offers ODR for eBay it demonstrated that ODR is a viable and effective alternative.

Cybersettle has successfully settled thousands of disputes, mainly involving personal-injury claims. Using the Cybersettle online process, the parties submit blind monetary demands and offers and agree that if they are within certain limits the case is settled at the midpoint of the last demand and offer.

The American Arbitration Association has settled several thousand cases digitally, but it still remains a very small percentage of the AAA caseload.

VirtualCourthouse.com™ has successfully settled hundreds of personal-injury, real estate, construction and contract claims through an online binding arbitration process. The parties select a neutral though an online negotiation. Once the neutral is selected each party presents their case online – uploading supporting medical bills, doctor reports, pictures and other relevant evidence. The neutral then reviews the presentations and renders a binding decision.

Neutral-Focused ODR Providers

Services like VirtualCourthouse.com specialize in providing neutrals a market place in addition to taking the parties through the entire ODR process. VirtualCourthouse.com comes closer to mimicking the actual court process than most of the services outlined above. VirtualCourthouse allow exhibits and supporting materials to be submitted electronically and case information is shared among the parties and the assigned neutral in a secure environment. The lowest cost for a simple case brought to VirtualCourthouse.com is less than $400.When shared by the parties that results in a dispute resolved for $200 a major cost saving to either ADR or court.

Mediate.com is a site that helps one locate a mediator in a particular geographical area and practice type. Unlike the VirtualCourthouse.com outlined above, Mediate.com does not offer a Web interface to enable one’s case to be submitted and adjudicated online.

 

Paper-Based Organizations In Transition

The American Arbitration Association offers a lot of information on their Website, including PDF forms. You have the ability to file your case electronically through AAA Webfile. The AAA offers both mediation and arbitration services and is the oldest ADR organization outside of the courts in the U.S.

JAMS, founded by Hon. H. Warren Knight in 1979, provide mediation and arbitration services across the country. They specialize in a variety of claims including bankruptcy, mass tort and international. The JAMS Website allows the visitor to file an initial claim and select a location and neutral. But beyond that, JAMS does not offer the automated case monitoring that the other services outlined above do.

 

Regional ADR Service Providers

There are several regional ADR providers, like ADR Systems of America, LLC, headquartered in Chicago. ADR Systems has many retired Cook County Circuit Court judges on their roster of neutrals and specialize in complex personal injury cases. The ADR Systems’ Web interface is limited but they focus on being a regional provider and therefore the need for automation is not quite as great as in a case involving geographically diverse parties.

Other ODR Providers

The ElectronicCourthouse.com, run by a Canadian company called iVentures, provides services to companies that must offer dispute resolution. They specialize in companies that manufacture and distribute internationally.

 

Developing A Successful Strategy

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 an 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.

 

CONCLUSION • The last 50 years have seen enormous growth in the use of ADR. The growth has been championed and led by the judges and the lawyers of the many state courts. Judges have led the way by incorporating ADR in case-flow management, adopting standards and criteria for the certification of neutrals. Lawyers have led the way by forming professional organizations and adopting ethical standards. ODR promises to take ADR to the next level: meeting the dispute resolution needs of a greater number of people in a way that is both faster and less expensive. By using a technologically sophisticated process over which they have substantial control, litigants will have greater confidence in the legal community and experience a higher level of justice.

 

 

PRACTICE CHECKLIST FOR

What You Should Know About Online Dispute Resolution

The ability of technology—especially the Internet—to make many business processes more efficient is now making it clear that online dispute resolution (ODR) is the next frontier of ADR.

 

The VirtualCourthouse dispute resolution process models a court dispute resolution process delivered on the Internet using Web-based technologies:

__ A case is initiated and a list of Neutrals is selected and the Neutrals are ranked;

__ A system generated email is sent to the other party, inviting them to join the case;

__ The other party joins the case and a Neutral is agreed upon;

__ The Neutral reviews the case initiation, and sends an email to both parties, confirming the type of proceeding and the fees;

__ The claimant prepares a case presentation and uploads the scanned documents into the online case;

__ Once complete, a system generated email is sent to the respondent, advising them the claimant has completed their presentation, and now it is time for them to submit their case presentation;

__ Once the case presentations are complete, a system generated email is sent to the Neutral advising them to review the evidence and render a decision;

__ Once reviewed, a verdict is submitted online, and a system generated email is sent to both parties notifying them a verdict has been rendered.

 

The VirtualCourthouse Dispute Resolution Engine (DRE) is a combination of multimedia technologies and business processes, integrated with a customer-friendly user interface. The DRE replicates the current process of dispute resolution in an online environment, removing constraints of time, expense, and distance. The engine is a sequence of events utilizing Internet-based media technologies that are designed to resolve conflicts between two or more parties.

 

ODR works best when there are only two parties and when the substance of the dispute is only monetary. ODR also has been effective when the dispute arises out of Internet commerce. ODR is difficult when there are many parties, the substance of the dispute is emotional or there is a large amount of money in controversy. Providers include:

__ Square Trade;

__ Cybersettle;

__ The American Arbitration Association;

__ VirtualCourthouse.com™ (which comes closest to mimicking the actual court process);

__ Mediate.com;

__ JAMS;

__ ADR Systems of America, LLC;

__ The ElectronicCourthouse.com, run by a Canadian company called iVentures.

 

This Article First appeared in Practical Litigator – March 2009

 

Hon. Arthur M. Monty Ahalt served as an associate judge on the Circuit Court for Prince George’s County, Maryland from 1982 until his retirement in 1999. He served that court in many capacities including civil case management coordinator. Since his retirement he has been recalled to sit on specially assigned trials. He also is an active mediator, arbitrator and neutral case evaluator and serves as CEO of VirtualCourthouse.com™. For more detailed information see http://montyahalt.com/aboutmontyahalt.html. Substantial portions of this article have been previously published at the 2008 American Bar Association Tech Show presentation On Line Dispute Resolution Where We Have Been and Where We Are Going, by Judge Arthur M Monty Ahalt (ret.) and David Glynn. See www.MontyAhalt.com.

Oh My Aching Back ! Tension Myositis Syndrome – TMS

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Oh My Aching Back !

Tension Myositis Syndrome – TMS

One of the most frequently tried personal injury case before a jury is the muscle strain to the neck or back which does not respond to traditional medical treatment and get better in 10 to 16 weeks. The plaintiff continues to have severe recurrent episodes of pain and goes through extensive diagnostic testing and pain management protocols and is still left with the same severe recurrent episodes of pain. All diagnostic testing is negative for permanent injury and the pain management protocols while providing temporary relief – the episodes continue to recur. It is not uncommon for the medical bills to total in excess of $30,000 and treatment to extend over several years. The plaintiffs usually are sincere individuals and family, friends and co-workers attest to the debilitating effect of the recurrent episodes of pain and changed life style of the plaintiffs. Yet juries rarely compensate these injured individuals more than several times medical expenses and frequently render verdicts of medical specials only. I have experienced these results in trials conducted in my court room well over 100 times. Typically the defendant has a highly qualified orthopedic surgeon or neurosurgeon testify that there are no objective tests which would support a casual connection between the accident and the plaintiff’s complaint of pain. To make matters worse for the injured plaintiff they are left with these painful conditions for perhaps the rest of their life. They feel tremendously let down by the system of justice and lawyers and many times become very bitter.
This same scenario troubled a young New York City orthopedic surgeon in the 1960’s – Dr John E Sarno. Dr Sarno then began a lifelong quest and study to provide help for these individuals. His study led him to a new medical diagnosis – Tension Myositis Syndrome or TMS. Basically this diagnosis was a recognition that tension is a cause of muscular pain. It should be noted that this diagnosis is distinguished from hypochondria and a purely psychological disorder. Thus while TMS is induced by an emotional phenomena it is a physical disorder. The muscles and tissues actually spasm and therefore cause pain. The medical community has difficulty recognizing and making the diagnosis. The psychologist may suspect that the patient’s symptoms are emotionally induced, but is untrained in physical diagnosis. On the other hand since very few orthopedic physicians are trained to recognize a disorder whose roots are psychological, TMS ″falls through the cracks″ and patients go undiagnosed. This leaves the patient vulnerable to being labeled – that the pain is ″all in the head″.
The lawyer then has an opportunity to help his client even though the system of justice seems to have failed by directing his client to TMS resources. After all the first objective of a lawyer is to make sure the clients gets the best possible medical care.
Fortunately, Dr Sarno has written several books and trained a subsequent generation of physicians – most notably Dr. David Schechter – who are capable of providing treatment for this perplexing and frustrating condition. Still, broad acceptance in the medical community does not exist and many individuals are ″left standing at the altar″ by the medical community. In the thousands of cases which I have evaluated and listened to testimony at trial I have yet to read or hear of a TMS diagnosis or referral. At best a physician will suggest that psychological counseling might help.
TMS treatment generally consists of a two pronged approach:

  1. The acquisition of knowledge and insight into the nature of the disorder.
    2. The ability to act on that knowledge and thereby change the brains behavior.

Dr Sarno suggests the following steps.

  1. Think psychological not physical. With good reason this is possible since the medical community has run all of the tests and concluded that there is no physical disorder. So why then does the pain not immediately disappear?
  2. “pity me that the heart is slow to learn – What the swift                mind beholds at every turn” ( last two lines of a         poem by Edna St. Vincent Millay)
  3. Talk to your brain.
    3. Resume physical activity.
    4. Discontinue all physical treatment
    5. Review the daily reminders.
    6. The pain is due to TMS, not a structural abnormality.
    7. The direct reason for the pain is mild oxygen deprivation.
    8. TMS is a harmless condition caused by my repressed emotions.
    9. The principle emotion is anger.
    10. TMS exists only to distract my attention from my emotions.
    11. Since my back is basically normal there is nothing else to fear.
    12. Therefore, physical activity is not dangerous.
    13. And I must resume all normal physical activity.
    14. I will not be concerned or intimidated by the pain.
    15. I will shift my attention from the pain to emotional issues.
    16. I intend to be in control – not my subconscious mind.
    17. I must think psychological not physical at all times.

The Mind Body Perscription
Here is a list of study resources that are a must.
See the Links at the Bottom of the Page

The Mindbody Prescription: Healing the Body, Healing the Pain by John E. Sarno M.D. (Paperback – Oct 1,
The Divided Mind: The Epidemic of Mindbody Disorders by John E. Sarno (Paperback – Mar 27, 2007)

Healing Back Pain: The Mind-Body Connection by John E. Sarno (Paperback – Feb 1, 1991)

The Mindbody Prescription: Healing the Body, Healing the Pain by John E. Sarno (Kindle Edition – Mar 15, 2001) – Kindle Book

The MindBody Workbook by David Schechter M.D. (Plastic Comb – Nov 1, 1999)
The MindBody Audio Program by David Schechter (Audio CD – April 15, 2001)
New Title 1 (The MindBody Workbook) by MD David Schechter (Kindle Edition – Jul 15, 2008) – Kindle Book
The MindBody Workbook with Patient Panel DVD by David Schechter (Plastic Comb – Oct 1, 2004)

National Academy of Distinguished Neutrals – MdMediators.org

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The National Academy of Distinguished Neutrals is pleased to announce the launch of its Maryland Chapter – the “Maryland Academy of Mediators & Arbitrators” (MAMA) – online at www.MDMediators.org. 

Just 8 attorneys and former judges have been recognized as Charter Members of the Maryland Chapter, including most of the state’s most widely-accepted ADR professionals. The MD Chapter has an appointed Executive Committee which includes 3 leading local ADR practitioners: Jonathan Marks (Bethesda), Judge Steven I. Platt (Annapolis) and Sean Rogers (Leonardtown). 

Include the availability of the following neutrals:

 All Maryland Calendar Members



Non-Calendar Members:

The Academy’s new website is designed to “make life easier” for local attorneys, counsel, adjusters and legal support staff. www.MDMediators.org allows firms to quickly find a suitable neutral by identifying preferred practice criteria or dispute types, navigating straight to a roster of trusted local mediators and arbitrators. A majority of the Academy’s members also publish their availability calendars online for the benefit of clients. This allows the selection of a neutral and the scheduling of appointments to be greatly expedited for all parties involved. 

MDMediators.org is connected to the Academy’s national www.NADN.org database, already in wide use by attorneys across more than 30 state bars, including Alabama, Arizona, California, Colorado, Florida, Georgia, Louisiana, Mississippi, New York, New Jersey, the Carolinas, Tennesse & Texas.

In 2013, NADN was named Neutrals Database Partner to the national defense bar association (DRI) and the national plaintiffs bar (AAJ, formerly ATLA), providing these association’s 40,000+ litigators with vetted biographies of the nation’s top-rated mediators and arbitrators, via the DRI and AAJ websites. Only ADR professionals widely respected by local defense and plaintiff firms are invited to submit bio materials for review by NADN and state committees. 

“We’re delighted to welcome these top-rated neutrals to form the Maryland Chapter of the Academy,” commented Darren Lee, Executive Director of NADN. “We’re confident that the NADN database will prove as useful to litigation firms in Maryland as it has to other state bar communities in recent years.”

The National Academy of Distinguished Neutrals (NADN) is an association whose membership consists of mediators and arbitrators distinguished by their hands-on experience in the field of civil and commercial conflict resolution. As of June 2014, the association has over 900 top-tier ADR attorneys and judges confirmed as members in each of the 50 states, making it the largest free online roster of vetted civil mediators and arbitrators in the nation. Membership to the Academy is by invitation-only, with a strict peer-nomination vote and extensive client-interview vetting procedure, intended to ensure that only the top 5-10% of civil ADR practitioners in each state are invited to join the association. For more info, please see www.NADN.org/about

For further info regarding the National Academy of Distinguished Neutrals, please contact Rose-Anne Raies (roseanne@nadn.org) or visit www.NADN.org/about

THE NATIONAL ACADEMY OF DISTINGUISHED NEUTRALS 104 Churchill Way, W. Palm Beach FL 33411 • Tel: (813) 600-5678 • Fax: (866) 257-4698 • www.NADN.org

In-Depth Biographies and Calendars Now Available At www.MDMEDIATORS.org

National Member Directory online at www.NADN.org/directory

March 2012- In Memorium Chief Judge William H. McCullough 1926-2012

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March 2012- In Memorium

Chief Judge William H. McCullough  1926-2012

By Judge Arthur M. Monty Ahalt (Ret.)

William H. McCullough, 86 who was Chief Judge of the Seventh Judicial Circuit. He was County Administrative Judge of the Prince George’s County Circuit Court from1975 until 1992. He retired at age 70 in 1995, died, after a brief illness on February 16, 2012 at his home with his family in Seat Pleasant. He had Pulmonary Fibrosis. Judge McCullough served the residents of the county for over 50 years as a lawyer and judge. A graduate of the George Washington Law School in 1950 he began practicing law with his father “Doc” McCullough in Mt. Rainier, Maryland with the firm of McCullough, Pace and McCullough. As a lawyer he was a lifetime member of the Prince George’s Bar Association and instrumental in the formation of the Prince George’s County Legal Aide Society. He Represented the Prince George’s County Liquor Board.

He is survived by his wife Violet and his children, Aimee, Bill, Jr. (Anne), and Mary Beth Bates (Marty); seven grandchildren, Kristin, Joshua, Ben, Luke, Connor, Claire and Sophia; one great grandchild, Jacob; and his brother Richard (Minette).

In 1969 he was appointed as a Circuit Court Judge and elected to a 15 year term in 1970 and a second term in 1986. History records him as the 34th judge in the 7th Judicial Circuit. As a circuit court judge he handled numerous high profile cases , but history will remember him for serving on the panel of Judges that disbarred former Maryland Governor and United State Vice President Spiro Agnew.

Judge McCullough is most remembered as the “Quiet Leader” of the Circuit Court for Prince George’s County, Maryland and the 7th Judicial Circuit ( Prince George’s,Calvert, Charles and St. Mary’s Counties). As the County Administrative Judge and Circuit Chief Judge, he successfully managed the growth of a court serving the 600,000 + residents of the county from 9 judges in a 50,000 square foot building to 20 judges in a 400,000 square foot multi-court complex with over 25 court rooms. A steady stream of judges, county officials and lawyers made their way to his Chambers seeking his wise counsel and leadership. Judge McCullough was never one to insist on being addressed as “Judge” and would always encourage folks to just call him Bill- except in the court room, of course.Socially, Bill and his wife Vi were sought after company for their joy of life and friendship. Bill earned his title of “twinkle toes” and “ol’blue eyes” while a child and in the Navy, but those traits followed him to the courthouse.

Judge McCullough was a mentor and teacher to his less experienced colleagues on the court and members of the bar – especially his law clerks of whom he took great pride. His law clerks – now all very successful lawyers and leaders themselves are – Jo Benson Fogel, Esq. 1969/1970; Alan Edward D’Appolito, Esq. 1970/1971; James G. Nolan, Esq. 1971; Thomas R. Callahan, Esq. 1972/1973; R. Brooke Bortner, Esq. 1974; Iris Aberbach, Esq. 1976/1978; Richard E. Schimel, Esq. 1978/1979; Andrew R. Polott, Esq. 1979/1980; Claudia Z. Springer, Esq. 1980/1981; Mary Eno, Esq. 1981/1982 ; Samuel J. DeBlasis, II, Esq. 1982/1983 ; Gregory K. Wells, Esq. 1983/1984 Kenneth F. Eichner, Esq. 1984/1985; Christopher Costabile, Esq. 1985/1986; Josephine Lynch, Esq. 1986/1987; Michael A. DeSantis, Esq. 1988/1989; Rita Kaufman Grindle, Esq. 1989/1990; John A. Bielec, Esquire 1991/1992; Melissa Ann Miller, Esq. 1992/1993; John T. Bergin, Esq. 1993/1994; George R. H. Johnson, Esq.1994/1995.

Remembrances of some of his clerks; Sam DeBlasis II – “Law school taught me the basics about the law but Judge McCullough established for me a foundation to be a lawyer, a good lawyer”; Jo Benson Fogle – “My stories of his wonderful sense of humor masked when necessary by his perfect judicial demeanor, his ability to deliver a 20 page opinion with findings of fact in full grammatically correct sentences from the bench with 1 page of notes, and his ability to raise the level of performance in whatever his endeavors, always come back to something about me and what I observed.”

Upon his retirement Judge McCullough was provided a book celebrating his service and life and authored by Bill Butler the Court Administration Facilities Manager. In that book some of his colleagues comments reflect his everlasting impact on the court, the bar and the community.

Judge Jacob S. Levin( Ret.) – “The only thing I never understood about him – and this comes as a complete mystery to me- is that here is a man who has fought in our Fighting Navy during World War II and yet doesn’t believe in any type of cursing. Every time I would use a four-letter word in his presence, I either got a look or an admonition.”

Judge C.Philip Nichols – “ I’ve had the honor and privilege to practice before Judge McCullough and to have the opportunity to sit with him as a judge of this court. He’s always brought the best of temperaments, the keenest of intellects and good judgment to every case he was assigned. I especially remember his kindness to me as a young lawyer in an extremely difficult rape case that I tried twenty years ago as a defense attorney. He was generous enough to remind the jury that a lawyer has a high calling, and the professional obligation to fully represent the interests of a party before the court no matter how difficult the facts.”

Judge Darlene G. Perry (Ret.) – “ Bill McCullough, as a lawyer, enjoyed a reputation for his honesty, his kindness,his collegiality and his hard work on behalf of his clients. As a judge he was emulated by all of those aspiring to be a judge and was a diffuser of controversy, voice of reason, and a leader by all who came in contact with him. Bill McCullough enjoys life. He loves a party. Quick to laugh, he doesn’t let a bad back stop him from dancing or playing golf. He has a quick wit and the ladies refer to him as “Ol’ Blue Eyes”and “Twinkle toes”, probably because of that ever-present charm and his dancing ability.”

Judge Steven I. Platt ( Ret.) – “The things I learned from Judge McCullough – His humor; his warm personality;his ability to see through almost every situation and get to the heart of it and understand what motivates people; and the ability to apply the law in a common sense manner that takes into account both the effect of the law, and what the judge does, on the people before him.”

Judge Richard H. Sothoron, Jr. ( Ret.) – Consistency was always a strong suit of Judge McCullough’s in that his rulings were fair, his impartiality unrefuted and his dedication to the role of a Judge unquestioned. As a lawyer and a judge his temperament was that of a considerate and well mannered counselor whom the entire bar respected. And it was this respect that set him apart form others.

I remember Bill McCullough, the lawyer , as a principled lawyer. He wouldn’t make an argument on the law unless the law clearly supported it. He wouldn’t make an argument on the facts unless the facts clearly supported it. He would not cut corners to achieve a result for his client. He had a clear concept of justice, of fairness, truthfulness and credibility…and he made his clients conform. If they fell short of it, well, he’d help them deal with the consequences;but he would not change his advocacy to conform to their shortfalls.He was the glue that held together families , the communities and the people he represented. Good judges are made of good lawyers and good lawyers are made of good people.

 

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.