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today.
Welcome to the audio edition of BHBA's Mediation Training.
In this episode, your host, the Honorable Gail S. Tucson of Jams, will introduce you
to dispute resolution. Let's dive in.
I'd like to welcome everyone to Introduction to Dispute Resolution. This is part of a program
sponsored by the Beverly Hills Bar Association Mediation Certification Program. And we appreciate
that there are going to be probably several recordings that you're going to review as
part of the requirements for completion of the program.
I was happy to be invited by the Beverly Hills Bar Association to participate as part of
its volunteer faculty and look forward to introducing you to dispute resolution.
So I have had a connection, I would say, to ADR for most of my legal career. I actually
am from the California area and am delighted to have this connection with what I understand
to be a very special bar association in terms of its history. I attended UCLA undergrad
and for part of law school. And so I do have a connection to California, even though most
of my legal career has been in the state of Georgia.
As you can see from the slide, I had the opportunity to help found one of our bar associations,
the Georgia Association of Black Women Attorneys. Now over 40 years ago, the organization is
still very strong and vibrant in serving the legal community. I have spent most of my career
on the bench as a trial judge for the Atlanta Judicial Circuit and served as its chief judge
as well as serving as the chair of the Fulton County ADR board.
So in this course, what we're aiming to do is to give you an overview of alternative dispute
resolution, which we all know we refer to as ADR. We do have some objectives. We want
you to be able to understand why there is a need for ADR and how it came about and to
have a general understanding of the different types of alternative dispute resolution that
you may encounter as a practicing attorney or as part of your studies if you're still
in law school. We do understand, I think there's a mutual understanding that your attendance
throughout the entirety of the recorded session is required. And I hope that you will enjoy
as I have a career involving ADR. So let's discuss a little bit, we're a little bit together
about the history of dispute resolution. So ADR has an interesting past. It has become
an industry with standards and associations that began back in 1906 with what is referred
to as the first pound conference, which is interesting because the reference first pound
conference actually doesn't refer to a conference. It refers to a speech or an address that was
made by Roscoe Pound when he was relatively young, just about 36 years old and he was
speaking at the 29th American Bar Association conference, which was being held in St. Paul.
He was a University of Nebraska law professor and he wanted to cause maybe an uproar but
had some concerns about the justice system and how it was operating and whether or not
it was addressing the needs of the average citizen and the businesses and entities that
find themselves interacting with the legal system. There's a very interesting article
I'd like to refer you to. It's in the Cardoza Journal of Conflict Resolution, volume 18,
an article written by Laura Trium and Brian Farkas that gives you a very extensive history
of ADR. So Mr. Pound, as he was giving his address, urged everyone to explore the dichotomy
between everyone deserving their day in court, something that we hear often, and the general
public's dissatisfaction with the traditional legal system. I found this to be kind of interesting
in that the reasons that he identified for persons dissatisfaction with our traditional
justice system then back in 1906 continue in many ways to be present day dissatisfactions,
the rigidity of the system, all of the rules and the perception that if you're not familiar
with the rules or if you're not able to use the rules with ease, that your ability to
have your fair day in court may in fact be compromised. The emphasis he spoke of that
is placed on the procedure, placed above the human experience and the quest for justice.
And then finally he also highlighted the fact that there is perhaps a distaste by the common
person for the sport of litigation. And by that he was speaking of whether you engage
in certain practices or use the rules to your benefit for the win, for the ultimate prize
as opposed to trying to distill the facts, determine the truth and reach justice at the
end of the day. So 70 years later after the first pound conference, there was a second
pound conference. And this was an actual conference that was focused on understanding and discussing
dissatisfactions with our justice system. It was convened by then Chief Justice Warren
Berger, who we know I devoted his career to improving the legal and judicial systems that
we are all a part of. It was intended to commission a task force that was created. So 70 years
after the first address by Roscoe Pound, Chief Justice Berger convened a conference devoted
to the discussion of ADR in our justice system. And he proposed a courthouse of the future
where various disputes would be categorized such that some would be litigated. The bigger
cases in controversy, the higher amounts in controversy. And the more routine non-adversarial
disputes would not be resolved in the courthouse, but would go through the ADR process. So the
second pound conference, as I referenced, created a task force that worked after the
convening of the conference. And it produced a 35-page report. And you can imagine it was
filled with all kinds of recommendations and findings and truisms and not, perhaps. But
there were three main recommendations. And those recommendations fueled the ADR model
that pushed forward after the conference. The first recommendation was that there should
be neighborhood justice centers. And I feel very fortunate here in the Atlanta area that
we still have one of those first neighborhood justice centers. It's now called the Justice
Center of Atlanta. And we attribute its success to the career devoted to this topic and the
pursuit of this form of resolving disputes to EDEPREM. She helped with founding ours.
He also, the task force, recommended that there be compulsory arbitration of certain
disputes, especially those that were less than $10,000 in controversy. And I recall
as a younger lawyer that we had a new rule in the Atlanta Judicial Circuit that focused
on compulsory, mandatory arbitration for smaller disputes. And we had small panels of attorneys
who volunteered their time to sit as arbitration panels and resolve those disputes for the
litigants. And then the final recommendation, as mentioned, was that the non-adversarial
smaller disputes would not even be resolved in the courthouse. Rather, they would be resolved
through the work of our neighborhood justice centers. So it is really very interesting
to kind of focus then on the impact that the Pound Conference has had on current day
ADR. We know that there are various mandates for a multi-door judicial approach, meaning
that our fordhouses are operated in a manner that provides different vehicles to resolve
different types of disputes. For instance, you may have a landlord and tenant court that
requires the participants to first try to resolve the issues that arise between landlord
and tenant in a manner that is akin to a mediation or a conference more so than actually having
a hearing, where oftentimes, especially as we see on television, the small person, not
the big landlord, doesn't even have a clue as to how to present their case to court in
order to expect to get a fair result. There are a variety of statutes and regulations
that govern such a multi-door judicial approach. And I certainly would suggest that if you're
going to practice in this area that you need to be familiar with all those rules, not just
the typical rules that govern litigations such as the Civil Practice Act or the Evidence
Code, but you need to know the rules that govern the ADR in your jurisdiction. There
have been many statements of endorsement of this pathway for specific types of disputes.
I mentioned landlord-tenant. You have labor and employment. You may have this in your
family law area. I know in our court, we have a whole family law division that is devoted
just to resolving divorce, custody, property, division-type issues in a non-avisarial way,
where you meet first with the court, with judicial officers who help you sift through
discovery and help you to resolve issues by sending you to mediation as opposed to getting
geared up for an adversarial hearing. There's been tremendous progress in the education
provided by our law schools that are encouraging students to become certified and skilled in
conducting mediation to be prepared if ordered to go into a mandatory arbitration. That's
good so that this is no longer considered to be novel or frowned upon, but in fact is
encouraged as a great way to get cases resolved in a less expensive and more efficient way.
We definitely see now through the legal industry's commitment to ADR that we have community mediation
centers. You have private mediation companies such as Jams. That's the company that I'm
affiliated with. Oftentimes, there will be mandatory arbitration clauses in contracts
that govern employment or consumer construction, other types of controversies that require
you to go through ADR before you even file in court. That's something to look for when
you take on a case, whether or not you first have to engage in some form of ADR before
you prepare a complaint to file in court. Then we have public funded ADR services such
as court sponsored settlement conferences, for instance, the California Dispute Resolution
Program Act funded funds mediation services for cases that are filed in superior and other
courts in the state of California. We've talked a little bit, for some it may have been too
much on the history of ADR. Once again, I encourage you to, if you're interested, to
consider the bar journal article that I referenced as well as there's lots of literature out
there. But now we want to help you to understand dispute resolution proceedings. There are
three primary forms of ADR, mediation. I chuckle at that only because when I often refer
or tell someone that I am preparing for or I can't take a call because I'm in mediation,
they often think I'm saying meditation. So we'll have to reinforce for those that are
not familiar with this that the word is mediation. Then we have arbitration and we also have
settlement conferences. I think it would be helpful for us to talk about each, things
that they have in common as well as differences. This slide highlights, I think this is an
important slide, some of the common ADR processes that we've spoken about and the key differences.
So first, I think it's good to know that mediation and settlement conferences, at least in my
experience, are typically utilized at multiple phases of trying to resolve a controversy.
So you may have more than one mediation take place before a case is resolved. You may have
more than one effort if the case has been filed in court, more than one effort by the
judge to try to get the parties to actually settle the case. And that's a little different
than the timing of an arbitration because as mentioned earlier, oftentimes you'll have
mandatory arbitration clauses in a contract that require you to engage in arbitration
prior to you're going to court. And what I have seen, you maybe have also had this experience,
is that someone maybe hasn't read the contract that gives rise to the dispute as carefully
as they should have or perhaps skipped over the arbitration clause. And then what often
happens is if the case has already been filed in court, then you have a motion to stay or
a motion to dismiss because the party, the opposing party, did not honor the commitment
that was made by agreement when they signed the contract to use arbitration as the method
of trying to resolve the dispute. Neutrals, those would be the professionals that are
helping to resolve the case. So the neutral is not one of the parties. The neutral is
not the attorney that has been hired by one or both of the parties. The neutral is the
role that I assume and presumably you might be assuming if you become certified and decide
to start a mediation or an arbitration practice. And so it's really important to talk a little
bit about our role in this process. Typically, the neutrals are licensed attorneys. In many
instances, they also can be judges such as myself that have either taken senior status
or have retired. And the role that we play is that we're impartial. So whether you're
an attorney or a judge or in some instances, neutrals maybe just have an expertise in a
particular area and may not be members of a bar. For instance, there are many mediators
who once were insurance adjusters and they bring that expertise to the process of trying
to resolve the case because they have an expertise in terms of evaluating claims, knowing the
pitfalls of resolution, etc. But as stated, the point or the role of the neutral is to
facilitate an outcome. And that is the role in a mediation or a settlement conference.
You are facilitating the parties themselves coming to their own agreement as to how to
resolve the case. However, if you are the neutral in an arbitration, you are taking
a role that is more akin to that of a judge because you are ultimately whether you are
a single soul arbitrator or whether you're serving on a panel of arbitrators. The arbitrator
in this instance makes the decision for the parties. The parties present their evidence
to the arbitrator and the arbitrator makes a decision. Whereas in a mediation or a settlement
conference, the parties present information for purposes of basically kind of a show and
tell with each other and to help the neutral facilitate an outcome. Preparation is definitely
key and so I urge you whether you're the neutral or whether you are the party or whether you
are the advocate on behalf of the party, preparation should not be underestimated. You definitely
need to prepare. You want to be familiar with the facts of the case. You want to have engaged
in some discovery. You want to be familiar and comfortable with presenting and showing
and explaining exhibits. You definitely need to know as part of your preparation, the weaknesses
of your case, the strengths of your case. You definitely should not overlook the applicable
law because you're not doing this in a vacuum. You're doing it in the context of what is
the alternative. If you don't resolve the case in a mediation or a settlement conference
or in an arbitration and you ultimately go to court, the court, the judge, the jury,
whoever is deciding the case in that instance in that alternative will be applying the law.
The preparation is slightly different though for each form of ADR. If you're in a mediation,
your preparation should be focusing on and including what does each party or client want.
After representing a party going to a mediation, what is it that they want as the outcome at
the end of the mediation? What are they willing to accept? How are they willing to compromise?
What points are more important than others? Are they looking for money? Are they looking
for respect? Are they looking for an apology? All of these things are things that you need
to know as the attorney mediating as well as knowing as the neutral so that you can facilitate
an outcome. In an arbitration, your preparation is also very important, slightly different.
You need to know what does the arbitration agreement provide for? What are the limits?
What are the exclusions? What law has been chosen to apply into what aspect of your case?
All of that will bear on the outcome. Finally, if you're preparing for a settlement conference,
you need to be able to leverage the judge's perspective to evaluate your position versus
the opposing party's position and to arrive at the best alternative to an adversary hearing.
There's no one better to help you to do that than the judge. Use the judge as an ally as
opposed to someone who is trying to keep you from getting the case resolved. Are there
pending motions that might affect the party's willingness to compromise? That's a great
segue to our next slide. When you look at this chart, this gives you an overall picture
of where ADR fits into a traditional approach by the judicial system to resolve the case.
You have pre-litigation resolution attempts through mediation. Long before you file the
complaint, it is possible to reach out to the other side and suggest a mediation. These
can be very effective if the parties are candid and straightforward with the issues. They're
not holding back. But you can try it at the beginning. If it's not successful, then you
can proceed with initiating your case through the filing of a complaint. Then you review
the answer. You get a little bit more information there. It's a little more formal because now
it has been put in a pleading and the parties are going to be held accountable for what
has been stated in their complaint, their petition, or in their response. Typically,
in this day and age, it really would be unusual not to be required to participate in case
management and to have a conference pretty early on in your case. At that point, the
form of ADR selected or suggested can be discussed. You can request, perhaps, if you have a reluctant
party to participate. You can request the court to order your party in the other side
to some type of ADR. But again, the conferences may not resolve. They may reveal information,
but may not necessarily resolve the case. You proceed into your initial discovery phase.
This again is an opportunity with the exchange of information to say, hey, okay, I see these
key documents. I see yours. You see mine. Why don't we make another effort to try to get
the case resolved? You can go to a private entity. You most likely will have an opportunity,
maybe once, usually not more than twice, to use the court services for this purpose.
You get your discovery completed or nearly discovered, completed. You can attempt, again,
if you haven't yet. Then you get into the dispositive motion. If one party has filed
a motion for some re-judgment or a motion to dismiss, then it may be a little more difficult
to get everyone to the table for purposes of a mediation because they want to see who's
going to win the motion. You need to be aware of that and bring that to the court's attention
to find out if the court is going to rule promptly or is the court instead inclined to
wait and give you another opportunity to try to resolve it on your own. You go through
the whole process, as you can see here, from the diagram. Then it's time for trial. As
we all know, how many cases actually get resolved when the jury is waiting to be seated? Maybe
you've already gone through, wore a dire jury selection. Then the other side says, hey,
you want to step outside and discuss this one more time. Never say no. Of course, every
opportunity is the perfect opportunity to try to resolve your case. You may have a final
status conference where the court insists that you do so or you may decide to do this
on your own. Even after you go to trial and you get your jury verdict or it's a bench
trial and the judge rules on your motions, rules on your case, after deciding what the
facts are, you still may have an opportunity and should employ it for purposes of trying
to resolve the case before you expend additional funds and take the case up on appeal. This
slide helps us to kind of understand the differences in the goals of the judicial system versus
ADR. As we can see in ADR, we're trying to get the parties to be, I guess, to own up
or to be invested in the outcome. Oftentimes, litigants are super focused on having their
day in court. They want to be heard. They want to prove the other side to be right.
I mean, the other side to be wrong and that they're right. They want to see their attorney
turn the opposing party or a particular witness into mens meat through a vigorous cross examination.
But at the end of the day, the time and the effort, the emotional strain and toil through
going through an adversary proceeding, all of us know is a lot. And that's where ADR
is focused on trying to preserve relationships between the parties. Is there a way to work
through the controversy such that the parties, perhaps, can still have some type of relationship
that they value going forward while getting the particular controversy resolved? There
is a tremendous potential through ADR for being more creative in how the evidence is
reviewed or how it's considered for coming up with outcomes that are specific to each
case and the litigants involved and not having to be as focused or concerned with any mandatory
procedures or rules and regulations and trying to get the parties to reach a mutually acceptable
resolution. When you think of our traditional justice system, it's focused on adjudicating
rights and responsibilities. So you have a winner, you have a loser, you do try to give
everyone their day in court. There needs to be due process, making sure that the process
is fair, making sure that the playing field we've heard this often is as level as possible.
And also, though, we need to be honest, candid and acknowledge that the judicial system,
the judges, the court personnel, we're all focused on also trying to get our case clearance
rates as low as possible. We need to work through the cases. There are too many cases
to try and often you may end up with not having sufficient time to devote to a particular case,
which is another good reason to consider resolving it in an alternative way. I will say that
we as neutrals and as practicing attorneys in this area, we play a huge role in getting
our clients in the parties to understand the value of ADR because they're not going to
necessarily get it on their own. And they may be suspect, quite frankly, of us as the
advocates, if instead of jumping up and down on the table and tearing into a witness, we're
suggesting what may feel more like a conference or an informal meeting. So we have to let
them know why we're doing this. In terms of the process and the procedure, I think as
we have already stated, ADR is very flexible, it's informal, and it is definitely intended
to be confidential. So you have the advantage of the parties being able to share information,
concede positions, and express themselves in a way that they may be far less comfortable
doing in a public courtroom. ADR is intended to be faster. I have found, and I would caution,
those that are watching, that those of us that have litigated probably come to this
with a mindset of what we're accustomed to doing in terms of the rules, in terms of pre-trial,
preparation, discovery, interrogatories, document requests, lengthy depositions, all of those
procedures are generally not favored in ADR because we're trying to get the parties to
resolve their dispute without expending all that time and energy. That's not to say that
there may not be some minimal discovery, of course there will be. But typically, it's
a far, far fewer number of document requests and interrogatories that you might otherwise
be accustomed to. It may be a deposition of one or two witnesses. It's certainly not intended
to be several and for each deposition to go on for hours or days. And for that reason,
it is more cost effective. And this slide shows the opposite of all of that in our traditional
justice system. So now we're going to talk a little bit about the relationship between
ADR and our traditional justice system. So as we mentioned earlier, ADR has come to be
endorsed, favored by the judiciary as a means to provide resolution and to also save resources
for courts and litigants. For courts, certainly, probably all courts feel that they're overwhelmed
by the number of cases that are filed on a daily basis, certainly on an annual basis.
And the years that we have just completed in terms of the COVID pandemic and the effect
that it had on being able to resolve disputes in a traditional way has only exasperated the
dockets and the backlogs. ADR, for that reason, was a lifesaver throughout the time when emergency
orders had courthouses either closed or reduced hours or only emergencies being conducted
in person. And ADR is a way to kind of off ramp many of the cases that otherwise would
just be sitting, you know, waiting for a day or a week to be assigned for resolution by
trial or by lengthy hearing. You can select certain issues in a case and focus on those
through ADR. As I already stated, it can be used as a pre-trial, a post-trial option,
and in many instances is a first step before litigation is initiated. We have referenced
binding and non-binding ADR only slightly, so I want to spend a little, a few minutes
on that at this time. A binding mediation or binding arbitration would mean that the parties
know going into the process that whatever their result is, assuming that there is a decision
made or an agreement reached, that you're not going to be able to wiggle out of it or
change your mind afterwards. This typically would apply more so to an arbitration, I would
think, than a mediation. But the difference between it being binding and non-binding means
just that, that you're going to be stuck with or blessed with depending on your viewpoint
of the outcome of the session that has been conducted outside of the traditional system.
The obvious negatives to that are that you don't know what the outcome is going to be,
but there are far more benefits to going through this in that you actually do have a decision
that the parties have come to an agreement on as opposed to a judge or jury telling the
parties that this is what the outcome is going to be. An example would be, let's say a divorce
matter and you have issues of child support or alimony or how property is going to be
divided, it's far better for the parties to talk about it, argue about it if they will,
but come to a compromise and agree, okay, we can live with this than being told by someone
else who doesn't have an interest, especially if you're talking about a jury in your private
lives to tell you what the outcome is going to be. There are some instances where as a
settlement tool, the judge may offer the opportunity to have a summary jury trial where the parties
present evidence in a summary way to a jury, an advisory jury, and they consider the evidence,
they can engage in questions and come up with an outcome that will help the parties evaluate
their case and they can decide again whether or not in using creative tools, settlement
tools such as this, whether or not they want them to be binding or not. So as the neutral,
your influence, if we will, maybe on facilitating the parties to reach an agreement may be impacted
by where the case or where the controversy is if in fact litigation has already or it's
contemplated or it's already been initiated. So you potentially can have the most influence
on a case not coming to the courthouse for resolution if you are handling a pre-litigation
mediation. And in order though to have the influence that ideally you would want as a
successful mediator, you would probably need to be particularly informed about the type
of case, the likely outcome of those types of cases in your jurisdiction. So in other
words, the parties will not have already gone through the process of developing their case
in terms of the normal free trial preparation through motions and discovery. They'll just
know that there's a claim that something has happened and whatever the initial response
to it is by the party who's being charged with having breached duty or caused an injury,
etc. So there definitely is a space, I would say here, before the case is filed for a good
outcome that would reduce all of the expense and the emotional strain caused by going through
litigation. Once the discovery has been initiated, there is potential there also for trying to
resolve to get the case resolved. How many times have we heard, well, now that I've seen
the responses to the interrogatories, I need to take 10 depositions and get all this information
from third parties that may be very difficult. And so there is an opportunity to again suggest
to the parties to kind of lead them to an outcome that will simplify the resolution without
having to go through all of that fact finding. Oftentimes, I will get a call from parties
who are asking me to mediate because the court has imposed a period of time within which
they need to conduct a mediation. And so in that instance, I would say the neutral is
especially empowered with the ability to try to facilitate a resolution because you know
that you can say, well, Judge Jones says that you need to mediate this case within 30 days
and so we need to pick a date. We can't dilly-dally about the calendar. We need to find a time
to get together and make this work. And the beauty of going back to the pandemic in an
earlier part of the session, one of the beauties of it is that we now know that we can conduct
ADR with ease and effectively virtually. So it no longer should be an excuse about someone
being out of town or unable to come and meet in person because we can do this using Zoom
or Teams or any other virtual platform that might be suggested. So basically, don't need
to go through the whole slide, but the point is that at different parts of the process,
it was the neutral will have an opportunity to help the parties resolve their dispute.
So now we need to talk just a little bit more about what is the role and what are the responsibilities
of neutrals. We obviously know that you are to be neutral, hence our name. And that shouldn't
be hard, but because the process is much more informal than when you are in court in a hearing,
and for those of us who once wore the black robe, there is a transition in understanding
now that you still have authority with the parties, but you're there because they have
selected you, not because they have to be in your courtroom because your case was assigned
to you. And so you have to be very careful to make sure that you continue to display
your ability to be neutral and your being impartial. The most best practices that I
have reviewed definitely require you to go over all of this with the parties, even if
their attorneys have already done so, because what's most important is for the parties,
the people that you are meeting for the first time and you have to gain their trust with
you as well as the process. They need to understand, well, what are the rules that govern my having
to interact with you? So you are to maintain their confidentiality. If they share anything
with you in perhaps a caucus and a session where it's just you and them and their advocate,
and then you're going to leave their room and go to the other room, you need to make
sure that you know that you have their permission to share any information. Generally, it's considered
to be confidential unless they tell you you have permission to share any information.
And then there are various standards of ethics that you need to make sure you review and
that you understand so that there are no conflicts or any other breaches of ethical conduct by
you as the neutral. So I like to call these our ideal responsibilities. We certainly should
aspire to meet and exceed all of these. And I think it's important to spend a little bit
of time on this. So the context again is that you have been selected by the parties most
likely or randomly assigned if this is a court annexed mediation situation. And you have
to set the tone for communication. What are you going to permit, I guess, to be the tone
of parties speaking to each other, advocates speaking to each other? It's less about how
they're addressing you. It's far less formal than it would be if you were a judge in a
court proceeding. But you need to set the tone for communication. You need to determine
early on in your session as to what are the goals? You know, why are we here? What is
it that you would like to tackle first? So if it's the type of case that has several
potential sub resolutions to be achieved, then what order do we want to go in? So as
the next point says determining the issues and potential pain points. One thing that
I have always found to be very helpful as a mediator is to meet with the advocates, the
attorneys, if there are attorneys involved for each side separately prior to the actual
mediation session. And that gives you an opportunity to get a whole lot of information directly
from the attorney outside of the presence of their client. So they would be able to express
to you and inform you of perhaps topics to be avoided or topics that are going to be
emotional topics that are going to trigger responses from the parties and in prepare
you so that you can receive the information but not react in a way that may appear not
to be partial or that you're being judgmental. You want to make sure that they understand
the process so you go over the rules, whether or not it's confidential, that you're not
going to be a witness in their case, that you're not going to run until the other side
things that they ask you not to, that you're not going to be communicating about them with
the assigned judge. All of these things are important for them to understand before you
start the process officially. So usually this would be covered in an opening session. And
it's up to you in the dynamic between the parties as to whether or not you're going
to do this with everyone in the same session, in the same room, around the same table, or
whether you're going to do it in effect twice, explaining to each side but separately. It
is your job or responsibility to give the parties suggestions for things that they may
consider in order to resolve the case. You're not going to just say, well, this is what
you should do, but you certainly are in a position to share with them some suggestions
to ask them some probing questions that may cause them to consider or reconsider a position.
You are definitely guiding the negotiations. It is not your role. And you are underserving
the parties if you're merely carrying a piece of paper back and forth with numbers on it.
You're not to be merely a messenger. You are bringing to the table. They are paying you
as the neutral for your experience. So you need to share the experience in productive
ways. You need to help them to reach agreements. You need to be able to monitor the room and
whether or not they need to take breaks, whether or not there needs to be a step back on assessing,
are you making progress, and keeping them engaged in the process. All of these are ideal attributes
of a good mediator. So having shared all that I have with you, and I hope that you have
had some good takeaways from the slides and the presentation, it is not always the case
that you're going to be in a situation, in a mediation or arbitration or settlement conference
with attorneys, I mean with parties, both of whom have attorneys. Oftentimes you will have
what's referred to as a pro-per, a self-represented party, a pro-say party, and that requires you
as the neutral to approach the process very carefully. We just went over the importance
of the parties understanding the process. You need to make sure that you have taken the time
to understand their position. It's there any number of reasons why they may be there without an
attorney. They may have started with an attorney. The attorney may have not been able to serve them
well and actually dump them as the client. It could be that it is a problem, difficult party
who cannot get along with his or her attorney or maybe feels that they know better than the
attorney and they're unable to take advice. It may be a matter of finances not being able to find an
attorney that's willing to take the case that the party can afford. There are any number of reasons
why the person may be there without an attorney and it is absolutely part of being fair and
impartial and neutral not to make an adverse judgment about them or their case as a result of
their not having an attorney. You need to make sure that you are able to break down the rules
such as they are, the process, the value of going through this why it's not a waste of their time
in a way that they can communicate. Your initial interaction, the first several minutes of the
session will be important for you to gain their confidence in your ability to help them to resolve
their case. There will be challenges. It's certainly not easier if one party does not have
an attorney. It may be easier if both parties don't have an attorney but that doesn't mean that it's
going to be an easy mediation because then what you have to do is to listen especially well to
both sides and to be able to summarize and regurgitate and repeat back what is being said
in a way that you understand as well as a way that may be helpful to the other side and ultimately
that will cause the party that you're not speaking for but facilitating what they're trying to
communicate in a way that they say oh okay yes this person gets what I'm trying to say.
I think I can do this and I'm willing to spend time and so I would say that it
it does take a lot of patience. I think mostly it's a matter of listening very carefully
in getting each side the opportunity probably to vent more than you may wish to hear but it's
important for them to be able to share what they have to share especially if they've been ordered
to come and do this with you as opposed to presenting their case you know directly in court
as perhaps they had originally planned. I have enjoyed mediation with pro-per parties
and and find that most often if you communicate to the attorney if there's an attorney involved
on the other side that you're not planning to to be unfair to their client who's paying them
to be there oftentimes the professionalism that is exhibited is quite rewarding as they try to assist
you in making sure that the other side without the attorney understands the process.
If there are not attorneys involved most likely you should contemplate as the neutral
not merely facilitating an agreement but guess what actually writing out the agreement because
the pro-per parties are most likely not going to be equipped to put in writing what has been agreed to
in a way that will be acceptable by the court if the case was assigned to you by a judge.
So in that instance it's very important for you to start developing kind of a form file of
basic agreements that you can fill in the blanks as specific cases come before you.
So it looks like we've we've come to the end of this session I'm not sure what order this will appear
in but it has been my absolute pleasure to share with you my views and experience as a mediator
as well as a trial judge. I truly believe in the value of ADR at any point along the way
it was very rare when I would say no it's too late for you to try to to settle the case on your own.
We certainly have time constraints on a published calendar but I always encouraged
parties and their attorneys to try to work out the cases on their own because ultimately as I've said
before when you are invested in the outcome based on what you have been willing to give up and
compromise you're most likely going to be less inclined to end up back in court because on a
contempt for failing to abide by what you have agreed to contempt usually arise when the parties
didn't have control over the outcome and they feel that they have the inability to comply or they still
do not have the will or willingness to comply with what they've been ordered to do against
their wishes. So good luck to all of you mediation, arbitration, settlement conferences, three important
aspects of ADR and it's a really enjoyable career path that I have ended up on. I enjoy
being able to kind of roll up the sleeves and help parties reach resolutions outside of the
courthouse so I think you will as well. Thank you. You may be eligible for CLE credit in your state.
Visit bhba.org slash podcasts for more information.