1 00:00:00,000 --> 00:00:05,040 Support for this episode comes from Lawyers Mutual Insurance Company, who have proudly 2 00:00:05,040 --> 00:00:11,240 provided California attorneys with specialized professional liability coverage for over 45 3 00:00:11,240 --> 00:00:12,480 years. 4 00:00:12,480 --> 00:00:18,280 And did you know? Lawyers Mutual offers competitive specialty rates for their members who act 5 00:00:18,280 --> 00:00:22,880 as a neutral, either on a full-time or part-time basis. 6 00:00:22,880 --> 00:00:28,640 So, as part of their arbitration mediation specialty program, all members receive an 7 00:00:28,640 --> 00:00:33,560 individualized premium based on the areas of practice their firm handles. 8 00:00:33,560 --> 00:00:37,800 This allows Lawyers Mutual to adjust rates annually, and as you build your mediation 9 00:00:37,800 --> 00:00:43,400 practice, your premium will reflect the portion of your time spent working as a neutral. 10 00:00:43,400 --> 00:00:49,040 To learn more about how this great program can benefit your firm, visit LawyersMutual.com 11 00:00:49,040 --> 00:00:50,040 today. 12 00:00:50,040 --> 00:01:00,520 Welcome to the audio edition of BHBA's Mediation Training. 13 00:01:00,520 --> 00:01:04,880 In this episode, your host, the Honorable Gail S. Tucson of Jams, will introduce you 14 00:01:04,880 --> 00:01:07,240 to dispute resolution. Let's dive in. 15 00:01:07,240 --> 00:01:13,800 I'd like to welcome everyone to Introduction to Dispute Resolution. This is part of a program 16 00:01:13,800 --> 00:01:21,080 sponsored by the Beverly Hills Bar Association Mediation Certification Program. And we appreciate 17 00:01:21,080 --> 00:01:28,000 that there are going to be probably several recordings that you're going to review as 18 00:01:28,000 --> 00:01:32,400 part of the requirements for completion of the program. 19 00:01:32,400 --> 00:01:38,360 I was happy to be invited by the Beverly Hills Bar Association to participate as part of 20 00:01:38,360 --> 00:01:45,000 its volunteer faculty and look forward to introducing you to dispute resolution. 21 00:01:45,000 --> 00:01:55,240 So I have had a connection, I would say, to ADR for most of my legal career. I actually 22 00:01:55,240 --> 00:02:04,920 am from the California area and am delighted to have this connection with what I understand 23 00:02:04,920 --> 00:02:12,720 to be a very special bar association in terms of its history. I attended UCLA undergrad 24 00:02:12,720 --> 00:02:19,360 and for part of law school. And so I do have a connection to California, even though most 25 00:02:19,360 --> 00:02:23,960 of my legal career has been in the state of Georgia. 26 00:02:23,960 --> 00:02:31,720 As you can see from the slide, I had the opportunity to help found one of our bar associations, 27 00:02:31,720 --> 00:02:37,840 the Georgia Association of Black Women Attorneys. Now over 40 years ago, the organization is 28 00:02:37,840 --> 00:02:47,320 still very strong and vibrant in serving the legal community. I have spent most of my career 29 00:02:47,320 --> 00:02:54,160 on the bench as a trial judge for the Atlanta Judicial Circuit and served as its chief judge 30 00:02:54,160 --> 00:02:59,320 as well as serving as the chair of the Fulton County ADR board. 31 00:02:59,320 --> 00:03:07,400 So in this course, what we're aiming to do is to give you an overview of alternative dispute 32 00:03:07,400 --> 00:03:14,920 resolution, which we all know we refer to as ADR. We do have some objectives. We want 33 00:03:14,920 --> 00:03:23,800 you to be able to understand why there is a need for ADR and how it came about and to 34 00:03:23,800 --> 00:03:29,440 have a general understanding of the different types of alternative dispute resolution that 35 00:03:29,440 --> 00:03:36,480 you may encounter as a practicing attorney or as part of your studies if you're still 36 00:03:36,480 --> 00:03:43,280 in law school. We do understand, I think there's a mutual understanding that your attendance 37 00:03:43,280 --> 00:03:52,320 throughout the entirety of the recorded session is required. And I hope that you will enjoy 38 00:03:52,320 --> 00:03:59,960 as I have a career involving ADR. So let's discuss a little bit, we're a little bit together 39 00:03:59,960 --> 00:04:10,040 about the history of dispute resolution. So ADR has an interesting past. It has become 40 00:04:10,040 --> 00:04:17,960 an industry with standards and associations that began back in 1906 with what is referred 41 00:04:17,960 --> 00:04:27,320 to as the first pound conference, which is interesting because the reference first pound 42 00:04:27,320 --> 00:04:36,560 conference actually doesn't refer to a conference. It refers to a speech or an address that was 43 00:04:36,560 --> 00:04:43,400 made by Roscoe Pound when he was relatively young, just about 36 years old and he was 44 00:04:43,400 --> 00:04:53,160 speaking at the 29th American Bar Association conference, which was being held in St. Paul. 45 00:04:53,160 --> 00:05:03,080 He was a University of Nebraska law professor and he wanted to cause maybe an uproar but 46 00:05:03,080 --> 00:05:10,960 had some concerns about the justice system and how it was operating and whether or not 47 00:05:10,960 --> 00:05:17,160 it was addressing the needs of the average citizen and the businesses and entities that 48 00:05:17,160 --> 00:05:24,920 find themselves interacting with the legal system. There's a very interesting article 49 00:05:24,920 --> 00:05:32,920 I'd like to refer you to. It's in the Cardoza Journal of Conflict Resolution, volume 18, 50 00:05:32,920 --> 00:05:40,280 an article written by Laura Trium and Brian Farkas that gives you a very extensive history 51 00:05:40,280 --> 00:05:52,040 of ADR. So Mr. Pound, as he was giving his address, urged everyone to explore the dichotomy 52 00:05:52,040 --> 00:06:01,120 between everyone deserving their day in court, something that we hear often, and the general 53 00:06:01,120 --> 00:06:10,080 public's dissatisfaction with the traditional legal system. I found this to be kind of interesting 54 00:06:10,080 --> 00:06:17,920 in that the reasons that he identified for persons dissatisfaction with our traditional 55 00:06:17,920 --> 00:06:29,200 justice system then back in 1906 continue in many ways to be present day dissatisfactions, 56 00:06:29,200 --> 00:06:37,240 the rigidity of the system, all of the rules and the perception that if you're not familiar 57 00:06:37,240 --> 00:06:45,440 with the rules or if you're not able to use the rules with ease, that your ability to 58 00:06:45,440 --> 00:06:55,640 have your fair day in court may in fact be compromised. The emphasis he spoke of that 59 00:06:55,640 --> 00:07:08,000 is placed on the procedure, placed above the human experience and the quest for justice. 60 00:07:08,000 --> 00:07:16,720 And then finally he also highlighted the fact that there is perhaps a distaste by the common 61 00:07:16,720 --> 00:07:29,000 person for the sport of litigation. And by that he was speaking of whether you engage 62 00:07:29,000 --> 00:07:40,240 in certain practices or use the rules to your benefit for the win, for the ultimate prize 63 00:07:40,240 --> 00:07:49,280 as opposed to trying to distill the facts, determine the truth and reach justice at the 64 00:07:49,280 --> 00:07:57,240 end of the day. So 70 years later after the first pound conference, there was a second 65 00:07:57,240 --> 00:08:07,440 pound conference. And this was an actual conference that was focused on understanding and discussing 66 00:08:07,440 --> 00:08:12,760 dissatisfactions with our justice system. It was convened by then Chief Justice Warren 67 00:08:12,760 --> 00:08:21,120 Berger, who we know I devoted his career to improving the legal and judicial systems that 68 00:08:21,120 --> 00:08:32,920 we are all a part of. It was intended to commission a task force that was created. So 70 years 69 00:08:32,920 --> 00:08:42,960 after the first address by Roscoe Pound, Chief Justice Berger convened a conference devoted 70 00:08:42,960 --> 00:08:52,080 to the discussion of ADR in our justice system. And he proposed a courthouse of the future 71 00:08:52,080 --> 00:09:02,640 where various disputes would be categorized such that some would be litigated. The bigger 72 00:09:02,640 --> 00:09:14,240 cases in controversy, the higher amounts in controversy. And the more routine non-adversarial 73 00:09:14,240 --> 00:09:23,880 disputes would not be resolved in the courthouse, but would go through the ADR process. So the 74 00:09:23,880 --> 00:09:31,040 second pound conference, as I referenced, created a task force that worked after the 75 00:09:31,040 --> 00:09:38,920 convening of the conference. And it produced a 35-page report. And you can imagine it was 76 00:09:38,920 --> 00:09:47,280 filled with all kinds of recommendations and findings and truisms and not, perhaps. But 77 00:09:47,280 --> 00:09:56,200 there were three main recommendations. And those recommendations fueled the ADR model 78 00:09:56,200 --> 00:10:01,720 that pushed forward after the conference. The first recommendation was that there should 79 00:10:01,720 --> 00:10:09,440 be neighborhood justice centers. And I feel very fortunate here in the Atlanta area that 80 00:10:09,440 --> 00:10:16,520 we still have one of those first neighborhood justice centers. It's now called the Justice 81 00:10:16,520 --> 00:10:28,400 Center of Atlanta. And we attribute its success to the career devoted to this topic and the 82 00:10:28,400 --> 00:10:36,720 pursuit of this form of resolving disputes to EDEPREM. She helped with founding ours. 83 00:10:36,720 --> 00:10:44,920 He also, the task force, recommended that there be compulsory arbitration of certain 84 00:10:44,920 --> 00:10:53,080 disputes, especially those that were less than $10,000 in controversy. And I recall 85 00:10:53,080 --> 00:11:00,320 as a younger lawyer that we had a new rule in the Atlanta Judicial Circuit that focused 86 00:11:00,320 --> 00:11:09,120 on compulsory, mandatory arbitration for smaller disputes. And we had small panels of attorneys 87 00:11:09,120 --> 00:11:16,800 who volunteered their time to sit as arbitration panels and resolve those disputes for the 88 00:11:16,800 --> 00:11:24,040 litigants. And then the final recommendation, as mentioned, was that the non-adversarial 89 00:11:24,040 --> 00:11:32,080 smaller disputes would not even be resolved in the courthouse. Rather, they would be resolved 90 00:11:32,080 --> 00:11:39,440 through the work of our neighborhood justice centers. So it is really very interesting 91 00:11:39,440 --> 00:11:47,080 to kind of focus then on the impact that the Pound Conference has had on current day 92 00:11:47,080 --> 00:11:58,080 ADR. We know that there are various mandates for a multi-door judicial approach, meaning 93 00:11:58,080 --> 00:12:06,880 that our fordhouses are operated in a manner that provides different vehicles to resolve 94 00:12:06,880 --> 00:12:15,520 different types of disputes. For instance, you may have a landlord and tenant court that 95 00:12:15,520 --> 00:12:25,040 requires the participants to first try to resolve the issues that arise between landlord 96 00:12:25,040 --> 00:12:36,880 and tenant in a manner that is akin to a mediation or a conference more so than actually having 97 00:12:36,880 --> 00:12:45,320 a hearing, where oftentimes, especially as we see on television, the small person, not 98 00:12:45,320 --> 00:12:53,760 the big landlord, doesn't even have a clue as to how to present their case to court in 99 00:12:53,760 --> 00:13:00,880 order to expect to get a fair result. There are a variety of statutes and regulations 100 00:13:00,880 --> 00:13:07,880 that govern such a multi-door judicial approach. And I certainly would suggest that if you're 101 00:13:07,880 --> 00:13:14,880 going to practice in this area that you need to be familiar with all those rules, not just 102 00:13:14,880 --> 00:13:21,200 the typical rules that govern litigations such as the Civil Practice Act or the Evidence 103 00:13:21,200 --> 00:13:29,880 Code, but you need to know the rules that govern the ADR in your jurisdiction. There 104 00:13:29,880 --> 00:13:39,240 have been many statements of endorsement of this pathway for specific types of disputes. 105 00:13:39,240 --> 00:13:44,320 I mentioned landlord-tenant. You have labor and employment. You may have this in your 106 00:13:44,320 --> 00:13:52,280 family law area. I know in our court, we have a whole family law division that is devoted 107 00:13:52,280 --> 00:14:02,760 just to resolving divorce, custody, property, division-type issues in a non-avisarial way, 108 00:14:02,760 --> 00:14:09,200 where you meet first with the court, with judicial officers who help you sift through 109 00:14:09,200 --> 00:14:19,000 discovery and help you to resolve issues by sending you to mediation as opposed to getting 110 00:14:19,000 --> 00:14:28,400 geared up for an adversarial hearing. There's been tremendous progress in the education 111 00:14:28,400 --> 00:14:36,840 provided by our law schools that are encouraging students to become certified and skilled in 112 00:14:36,840 --> 00:14:46,120 conducting mediation to be prepared if ordered to go into a mandatory arbitration. That's 113 00:14:46,120 --> 00:14:54,040 good so that this is no longer considered to be novel or frowned upon, but in fact is 114 00:14:54,040 --> 00:15:03,280 encouraged as a great way to get cases resolved in a less expensive and more efficient way. 115 00:15:03,280 --> 00:15:10,920 We definitely see now through the legal industry's commitment to ADR that we have community mediation 116 00:15:10,920 --> 00:15:18,360 centers. You have private mediation companies such as Jams. That's the company that I'm 117 00:15:18,360 --> 00:15:27,680 affiliated with. Oftentimes, there will be mandatory arbitration clauses in contracts 118 00:15:27,680 --> 00:15:36,160 that govern employment or consumer construction, other types of controversies that require 119 00:15:36,160 --> 00:15:45,240 you to go through ADR before you even file in court. That's something to look for when 120 00:15:45,240 --> 00:15:52,920 you take on a case, whether or not you first have to engage in some form of ADR before 121 00:15:52,920 --> 00:16:00,560 you prepare a complaint to file in court. Then we have public funded ADR services such 122 00:16:00,560 --> 00:16:07,160 as court sponsored settlement conferences, for instance, the California Dispute Resolution 123 00:16:07,160 --> 00:16:16,040 Program Act funded funds mediation services for cases that are filed in superior and other 124 00:16:16,040 --> 00:16:23,160 courts in the state of California. We've talked a little bit, for some it may have been too 125 00:16:23,160 --> 00:16:32,200 much on the history of ADR. Once again, I encourage you to, if you're interested, to 126 00:16:32,200 --> 00:16:39,040 consider the bar journal article that I referenced as well as there's lots of literature out 127 00:16:39,040 --> 00:16:48,680 there. But now we want to help you to understand dispute resolution proceedings. There are 128 00:16:48,680 --> 00:17:02,560 three primary forms of ADR, mediation. I chuckle at that only because when I often refer 129 00:17:02,560 --> 00:17:10,440 or tell someone that I am preparing for or I can't take a call because I'm in mediation, 130 00:17:10,440 --> 00:17:17,120 they often think I'm saying meditation. So we'll have to reinforce for those that are 131 00:17:17,120 --> 00:17:26,400 not familiar with this that the word is mediation. Then we have arbitration and we also have 132 00:17:26,400 --> 00:17:33,880 settlement conferences. I think it would be helpful for us to talk about each, things 133 00:17:33,880 --> 00:17:40,560 that they have in common as well as differences. This slide highlights, I think this is an 134 00:17:40,560 --> 00:17:50,560 important slide, some of the common ADR processes that we've spoken about and the key differences. 135 00:17:50,560 --> 00:17:58,400 So first, I think it's good to know that mediation and settlement conferences, at least in my 136 00:17:58,400 --> 00:18:07,600 experience, are typically utilized at multiple phases of trying to resolve a controversy. 137 00:18:07,600 --> 00:18:16,360 So you may have more than one mediation take place before a case is resolved. You may have 138 00:18:16,360 --> 00:18:22,600 more than one effort if the case has been filed in court, more than one effort by the 139 00:18:22,600 --> 00:18:28,920 judge to try to get the parties to actually settle the case. And that's a little different 140 00:18:28,920 --> 00:18:34,840 than the timing of an arbitration because as mentioned earlier, oftentimes you'll have 141 00:18:34,840 --> 00:18:44,000 mandatory arbitration clauses in a contract that require you to engage in arbitration 142 00:18:44,000 --> 00:18:51,800 prior to you're going to court. And what I have seen, you maybe have also had this experience, 143 00:18:51,800 --> 00:18:59,320 is that someone maybe hasn't read the contract that gives rise to the dispute as carefully 144 00:18:59,320 --> 00:19:08,360 as they should have or perhaps skipped over the arbitration clause. And then what often 145 00:19:08,360 --> 00:19:14,840 happens is if the case has already been filed in court, then you have a motion to stay or 146 00:19:14,840 --> 00:19:21,880 a motion to dismiss because the party, the opposing party, did not honor the commitment 147 00:19:21,880 --> 00:19:29,480 that was made by agreement when they signed the contract to use arbitration as the method 148 00:19:29,480 --> 00:19:39,600 of trying to resolve the dispute. Neutrals, those would be the professionals that are 149 00:19:39,600 --> 00:19:46,760 helping to resolve the case. So the neutral is not one of the parties. The neutral is 150 00:19:46,760 --> 00:19:53,600 not the attorney that has been hired by one or both of the parties. The neutral is the 151 00:19:53,600 --> 00:20:03,840 role that I assume and presumably you might be assuming if you become certified and decide 152 00:20:03,840 --> 00:20:11,080 to start a mediation or an arbitration practice. And so it's really important to talk a little 153 00:20:11,080 --> 00:20:20,680 bit about our role in this process. Typically, the neutrals are licensed attorneys. In many 154 00:20:20,680 --> 00:20:28,400 instances, they also can be judges such as myself that have either taken senior status 155 00:20:28,400 --> 00:20:35,920 or have retired. And the role that we play is that we're impartial. So whether you're 156 00:20:35,920 --> 00:20:44,200 an attorney or a judge or in some instances, neutrals maybe just have an expertise in a 157 00:20:44,200 --> 00:20:53,080 particular area and may not be members of a bar. For instance, there are many mediators 158 00:20:53,080 --> 00:20:59,880 who once were insurance adjusters and they bring that expertise to the process of trying 159 00:20:59,880 --> 00:21:06,480 to resolve the case because they have an expertise in terms of evaluating claims, knowing the 160 00:21:06,480 --> 00:21:14,760 pitfalls of resolution, etc. But as stated, the point or the role of the neutral is to 161 00:21:14,760 --> 00:21:23,960 facilitate an outcome. And that is the role in a mediation or a settlement conference. 162 00:21:23,960 --> 00:21:31,000 You are facilitating the parties themselves coming to their own agreement as to how to 163 00:21:31,000 --> 00:21:38,080 resolve the case. However, if you are the neutral in an arbitration, you are taking 164 00:21:38,080 --> 00:21:43,400 a role that is more akin to that of a judge because you are ultimately whether you are 165 00:21:43,400 --> 00:21:51,440 a single soul arbitrator or whether you're serving on a panel of arbitrators. The arbitrator 166 00:21:51,440 --> 00:21:58,080 in this instance makes the decision for the parties. The parties present their evidence 167 00:21:58,080 --> 00:22:04,720 to the arbitrator and the arbitrator makes a decision. Whereas in a mediation or a settlement 168 00:22:04,720 --> 00:22:12,920 conference, the parties present information for purposes of basically kind of a show and 169 00:22:12,920 --> 00:22:21,680 tell with each other and to help the neutral facilitate an outcome. Preparation is definitely 170 00:22:21,680 --> 00:22:27,800 key and so I urge you whether you're the neutral or whether you are the party or whether you 171 00:22:27,800 --> 00:22:35,280 are the advocate on behalf of the party, preparation should not be underestimated. You definitely 172 00:22:35,280 --> 00:22:43,840 need to prepare. You want to be familiar with the facts of the case. You want to have engaged 173 00:22:43,840 --> 00:22:50,800 in some discovery. You want to be familiar and comfortable with presenting and showing 174 00:22:50,800 --> 00:22:58,560 and explaining exhibits. You definitely need to know as part of your preparation, the weaknesses 175 00:22:58,560 --> 00:23:06,560 of your case, the strengths of your case. You definitely should not overlook the applicable 176 00:23:06,560 --> 00:23:13,680 law because you're not doing this in a vacuum. You're doing it in the context of what is 177 00:23:13,680 --> 00:23:19,880 the alternative. If you don't resolve the case in a mediation or a settlement conference 178 00:23:19,880 --> 00:23:25,960 or in an arbitration and you ultimately go to court, the court, the judge, the jury, 179 00:23:25,960 --> 00:23:34,040 whoever is deciding the case in that instance in that alternative will be applying the law. 180 00:23:34,040 --> 00:23:41,560 The preparation is slightly different though for each form of ADR. If you're in a mediation, 181 00:23:41,560 --> 00:23:49,080 your preparation should be focusing on and including what does each party or client want. 182 00:23:49,080 --> 00:23:55,480 After representing a party going to a mediation, what is it that they want as the outcome at 183 00:23:55,480 --> 00:24:03,680 the end of the mediation? What are they willing to accept? How are they willing to compromise? 184 00:24:03,680 --> 00:24:09,080 What points are more important than others? Are they looking for money? Are they looking 185 00:24:09,080 --> 00:24:16,760 for respect? Are they looking for an apology? All of these things are things that you need 186 00:24:16,760 --> 00:24:27,080 to know as the attorney mediating as well as knowing as the neutral so that you can facilitate 187 00:24:27,080 --> 00:24:35,240 an outcome. In an arbitration, your preparation is also very important, slightly different. 188 00:24:35,240 --> 00:24:42,080 You need to know what does the arbitration agreement provide for? What are the limits? 189 00:24:42,080 --> 00:24:49,080 What are the exclusions? What law has been chosen to apply into what aspect of your case? 190 00:24:49,080 --> 00:24:56,680 All of that will bear on the outcome. Finally, if you're preparing for a settlement conference, 191 00:24:56,680 --> 00:25:05,120 you need to be able to leverage the judge's perspective to evaluate your position versus 192 00:25:05,120 --> 00:25:11,800 the opposing party's position and to arrive at the best alternative to an adversary hearing. 193 00:25:11,800 --> 00:25:18,680 There's no one better to help you to do that than the judge. Use the judge as an ally as 194 00:25:18,680 --> 00:25:25,680 opposed to someone who is trying to keep you from getting the case resolved. Are there 195 00:25:25,680 --> 00:25:31,640 pending motions that might affect the party's willingness to compromise? That's a great 196 00:25:31,640 --> 00:25:40,760 segue to our next slide. When you look at this chart, this gives you an overall picture 197 00:25:40,760 --> 00:25:50,640 of where ADR fits into a traditional approach by the judicial system to resolve the case. 198 00:25:50,640 --> 00:25:57,240 You have pre-litigation resolution attempts through mediation. Long before you file the 199 00:25:57,240 --> 00:26:04,120 complaint, it is possible to reach out to the other side and suggest a mediation. These 200 00:26:04,120 --> 00:26:13,000 can be very effective if the parties are candid and straightforward with the issues. They're 201 00:26:13,000 --> 00:26:20,120 not holding back. But you can try it at the beginning. If it's not successful, then you 202 00:26:20,120 --> 00:26:26,040 can proceed with initiating your case through the filing of a complaint. Then you review 203 00:26:26,040 --> 00:26:31,120 the answer. You get a little bit more information there. It's a little more formal because now 204 00:26:31,120 --> 00:26:37,720 it has been put in a pleading and the parties are going to be held accountable for what 205 00:26:37,720 --> 00:26:48,640 has been stated in their complaint, their petition, or in their response. Typically, 206 00:26:48,640 --> 00:26:56,120 in this day and age, it really would be unusual not to be required to participate in case 207 00:26:56,120 --> 00:27:03,280 management and to have a conference pretty early on in your case. At that point, the 208 00:27:03,280 --> 00:27:12,040 form of ADR selected or suggested can be discussed. You can request, perhaps, if you have a reluctant 209 00:27:12,040 --> 00:27:19,520 party to participate. You can request the court to order your party in the other side 210 00:27:19,520 --> 00:27:29,640 to some type of ADR. But again, the conferences may not resolve. They may reveal information, 211 00:27:29,640 --> 00:27:38,000 but may not necessarily resolve the case. You proceed into your initial discovery phase. 212 00:27:38,000 --> 00:27:45,520 This again is an opportunity with the exchange of information to say, hey, okay, I see these 213 00:27:45,520 --> 00:27:52,840 key documents. I see yours. You see mine. Why don't we make another effort to try to get 214 00:27:52,840 --> 00:27:59,880 the case resolved? You can go to a private entity. You most likely will have an opportunity, 215 00:27:59,880 --> 00:28:09,120 maybe once, usually not more than twice, to use the court services for this purpose. 216 00:28:09,120 --> 00:28:15,160 You get your discovery completed or nearly discovered, completed. You can attempt, again, 217 00:28:15,160 --> 00:28:21,440 if you haven't yet. Then you get into the dispositive motion. If one party has filed 218 00:28:21,440 --> 00:28:29,480 a motion for some re-judgment or a motion to dismiss, then it may be a little more difficult 219 00:28:29,480 --> 00:28:35,840 to get everyone to the table for purposes of a mediation because they want to see who's 220 00:28:35,840 --> 00:28:43,040 going to win the motion. You need to be aware of that and bring that to the court's attention 221 00:28:43,040 --> 00:28:49,960 to find out if the court is going to rule promptly or is the court instead inclined to 222 00:28:49,960 --> 00:28:55,920 wait and give you another opportunity to try to resolve it on your own. You go through 223 00:28:55,920 --> 00:29:02,360 the whole process, as you can see here, from the diagram. Then it's time for trial. As 224 00:29:02,360 --> 00:29:10,480 we all know, how many cases actually get resolved when the jury is waiting to be seated? Maybe 225 00:29:10,480 --> 00:29:16,080 you've already gone through, wore a dire jury selection. Then the other side says, hey, 226 00:29:16,080 --> 00:29:22,000 you want to step outside and discuss this one more time. Never say no. Of course, every 227 00:29:22,000 --> 00:29:29,280 opportunity is the perfect opportunity to try to resolve your case. You may have a final 228 00:29:29,280 --> 00:29:34,120 status conference where the court insists that you do so or you may decide to do this 229 00:29:34,120 --> 00:29:41,560 on your own. Even after you go to trial and you get your jury verdict or it's a bench 230 00:29:41,560 --> 00:29:48,520 trial and the judge rules on your motions, rules on your case, after deciding what the 231 00:29:48,520 --> 00:29:55,000 facts are, you still may have an opportunity and should employ it for purposes of trying 232 00:29:55,000 --> 00:30:02,840 to resolve the case before you expend additional funds and take the case up on appeal. This 233 00:30:02,840 --> 00:30:11,840 slide helps us to kind of understand the differences in the goals of the judicial system versus 234 00:30:11,840 --> 00:30:25,920 ADR. As we can see in ADR, we're trying to get the parties to be, I guess, to own up 235 00:30:25,920 --> 00:30:34,760 or to be invested in the outcome. Oftentimes, litigants are super focused on having their 236 00:30:34,760 --> 00:30:42,040 day in court. They want to be heard. They want to prove the other side to be right. 237 00:30:42,040 --> 00:30:50,200 I mean, the other side to be wrong and that they're right. They want to see their attorney 238 00:30:50,200 --> 00:31:02,040 turn the opposing party or a particular witness into mens meat through a vigorous cross examination. 239 00:31:02,040 --> 00:31:11,200 But at the end of the day, the time and the effort, the emotional strain and toil through 240 00:31:11,200 --> 00:31:23,440 going through an adversary proceeding, all of us know is a lot. And that's where ADR 241 00:31:23,440 --> 00:31:31,400 is focused on trying to preserve relationships between the parties. Is there a way to work 242 00:31:31,400 --> 00:31:40,200 through the controversy such that the parties, perhaps, can still have some type of relationship 243 00:31:40,200 --> 00:31:47,400 that they value going forward while getting the particular controversy resolved? There 244 00:31:47,400 --> 00:31:56,440 is a tremendous potential through ADR for being more creative in how the evidence is 245 00:31:56,440 --> 00:32:03,560 reviewed or how it's considered for coming up with outcomes that are specific to each 246 00:32:03,560 --> 00:32:12,520 case and the litigants involved and not having to be as focused or concerned with any mandatory 247 00:32:12,520 --> 00:32:20,240 procedures or rules and regulations and trying to get the parties to reach a mutually acceptable 248 00:32:20,240 --> 00:32:29,320 resolution. When you think of our traditional justice system, it's focused on adjudicating 249 00:32:29,320 --> 00:32:35,920 rights and responsibilities. So you have a winner, you have a loser, you do try to give 250 00:32:35,920 --> 00:32:42,440 everyone their day in court. There needs to be due process, making sure that the process 251 00:32:42,440 --> 00:32:50,960 is fair, making sure that the playing field we've heard this often is as level as possible. 252 00:32:50,960 --> 00:32:59,240 And also, though, we need to be honest, candid and acknowledge that the judicial system, 253 00:32:59,240 --> 00:33:05,760 the judges, the court personnel, we're all focused on also trying to get our case clearance 254 00:33:05,760 --> 00:33:12,600 rates as low as possible. We need to work through the cases. There are too many cases 255 00:33:12,600 --> 00:33:22,680 to try and often you may end up with not having sufficient time to devote to a particular case, 256 00:33:22,680 --> 00:33:29,000 which is another good reason to consider resolving it in an alternative way. I will say that 257 00:33:29,000 --> 00:33:38,040 we as neutrals and as practicing attorneys in this area, we play a huge role in getting 258 00:33:38,040 --> 00:33:46,640 our clients in the parties to understand the value of ADR because they're not going to 259 00:33:46,640 --> 00:33:54,680 necessarily get it on their own. And they may be suspect, quite frankly, of us as the 260 00:33:54,680 --> 00:34:01,680 advocates, if instead of jumping up and down on the table and tearing into a witness, we're 261 00:34:01,680 --> 00:34:09,640 suggesting what may feel more like a conference or an informal meeting. So we have to let 262 00:34:09,640 --> 00:34:16,640 them know why we're doing this. In terms of the process and the procedure, I think as 263 00:34:16,640 --> 00:34:26,680 we have already stated, ADR is very flexible, it's informal, and it is definitely intended 264 00:34:26,680 --> 00:34:36,160 to be confidential. So you have the advantage of the parties being able to share information, 265 00:34:36,160 --> 00:34:44,600 concede positions, and express themselves in a way that they may be far less comfortable 266 00:34:44,600 --> 00:34:57,520 doing in a public courtroom. ADR is intended to be faster. I have found, and I would caution, 267 00:34:57,520 --> 00:35:08,520 those that are watching, that those of us that have litigated probably come to this 268 00:35:08,520 --> 00:35:17,160 with a mindset of what we're accustomed to doing in terms of the rules, in terms of pre-trial, 269 00:35:17,160 --> 00:35:26,800 preparation, discovery, interrogatories, document requests, lengthy depositions, all of those 270 00:35:26,800 --> 00:35:36,080 procedures are generally not favored in ADR because we're trying to get the parties to 271 00:35:36,080 --> 00:35:42,440 resolve their dispute without expending all that time and energy. That's not to say that 272 00:35:42,440 --> 00:35:49,080 there may not be some minimal discovery, of course there will be. But typically, it's 273 00:35:49,080 --> 00:35:59,360 a far, far fewer number of document requests and interrogatories that you might otherwise 274 00:35:59,360 --> 00:36:06,080 be accustomed to. It may be a deposition of one or two witnesses. It's certainly not intended 275 00:36:06,080 --> 00:36:13,720 to be several and for each deposition to go on for hours or days. And for that reason, 276 00:36:13,720 --> 00:36:24,880 it is more cost effective. And this slide shows the opposite of all of that in our traditional 277 00:36:24,880 --> 00:36:30,480 justice system. So now we're going to talk a little bit about the relationship between 278 00:36:30,480 --> 00:36:39,520 ADR and our traditional justice system. So as we mentioned earlier, ADR has come to be 279 00:36:39,520 --> 00:36:48,920 endorsed, favored by the judiciary as a means to provide resolution and to also save resources 280 00:36:48,920 --> 00:37:01,640 for courts and litigants. For courts, certainly, probably all courts feel that they're overwhelmed 281 00:37:01,640 --> 00:37:09,320 by the number of cases that are filed on a daily basis, certainly on an annual basis. 282 00:37:09,320 --> 00:37:19,440 And the years that we have just completed in terms of the COVID pandemic and the effect 283 00:37:19,440 --> 00:37:30,600 that it had on being able to resolve disputes in a traditional way has only exasperated the 284 00:37:30,600 --> 00:37:44,720 dockets and the backlogs. ADR, for that reason, was a lifesaver throughout the time when emergency 285 00:37:44,720 --> 00:37:52,720 orders had courthouses either closed or reduced hours or only emergencies being conducted 286 00:37:52,720 --> 00:38:04,480 in person. And ADR is a way to kind of off ramp many of the cases that otherwise would 287 00:38:04,480 --> 00:38:11,480 just be sitting, you know, waiting for a day or a week to be assigned for resolution by 288 00:38:11,480 --> 00:38:21,320 trial or by lengthy hearing. You can select certain issues in a case and focus on those 289 00:38:21,320 --> 00:38:29,560 through ADR. As I already stated, it can be used as a pre-trial, a post-trial option, 290 00:38:29,560 --> 00:38:39,600 and in many instances is a first step before litigation is initiated. We have referenced 291 00:38:39,600 --> 00:38:45,640 binding and non-binding ADR only slightly, so I want to spend a little, a few minutes 292 00:38:45,640 --> 00:38:58,600 on that at this time. A binding mediation or binding arbitration would mean that the parties 293 00:38:58,600 --> 00:39:06,480 know going into the process that whatever their result is, assuming that there is a decision 294 00:39:06,480 --> 00:39:11,760 made or an agreement reached, that you're not going to be able to wiggle out of it or 295 00:39:11,760 --> 00:39:21,440 change your mind afterwards. This typically would apply more so to an arbitration, I would 296 00:39:21,440 --> 00:39:28,520 think, than a mediation. But the difference between it being binding and non-binding means 297 00:39:28,520 --> 00:39:36,120 just that, that you're going to be stuck with or blessed with depending on your viewpoint 298 00:39:36,120 --> 00:39:45,200 of the outcome of the session that has been conducted outside of the traditional system. 299 00:39:45,200 --> 00:39:52,280 The obvious negatives to that are that you don't know what the outcome is going to be, 300 00:39:52,280 --> 00:40:01,360 but there are far more benefits to going through this in that you actually do have a decision 301 00:40:01,360 --> 00:40:09,200 that the parties have come to an agreement on as opposed to a judge or jury telling the 302 00:40:09,200 --> 00:40:19,560 parties that this is what the outcome is going to be. An example would be, let's say a divorce 303 00:40:19,560 --> 00:40:27,480 matter and you have issues of child support or alimony or how property is going to be 304 00:40:27,480 --> 00:40:34,800 divided, it's far better for the parties to talk about it, argue about it if they will, 305 00:40:34,800 --> 00:40:41,480 but come to a compromise and agree, okay, we can live with this than being told by someone 306 00:40:41,480 --> 00:40:48,200 else who doesn't have an interest, especially if you're talking about a jury in your private 307 00:40:48,200 --> 00:40:55,800 lives to tell you what the outcome is going to be. There are some instances where as a 308 00:40:55,800 --> 00:41:09,520 settlement tool, the judge may offer the opportunity to have a summary jury trial where the parties 309 00:41:09,520 --> 00:41:20,560 present evidence in a summary way to a jury, an advisory jury, and they consider the evidence, 310 00:41:20,560 --> 00:41:27,640 they can engage in questions and come up with an outcome that will help the parties evaluate 311 00:41:27,640 --> 00:41:34,000 their case and they can decide again whether or not in using creative tools, settlement 312 00:41:34,000 --> 00:41:41,400 tools such as this, whether or not they want them to be binding or not. So as the neutral, 313 00:41:41,400 --> 00:41:54,840 your influence, if we will, maybe on facilitating the parties to reach an agreement may be impacted 314 00:41:54,840 --> 00:42:02,720 by where the case or where the controversy is if in fact litigation has already or it's 315 00:42:02,720 --> 00:42:13,480 contemplated or it's already been initiated. So you potentially can have the most influence 316 00:42:13,480 --> 00:42:25,560 on a case not coming to the courthouse for resolution if you are handling a pre-litigation 317 00:42:25,560 --> 00:42:34,680 mediation. And in order though to have the influence that ideally you would want as a 318 00:42:34,680 --> 00:42:45,960 successful mediator, you would probably need to be particularly informed about the type 319 00:42:45,960 --> 00:42:56,760 of case, the likely outcome of those types of cases in your jurisdiction. So in other 320 00:42:56,760 --> 00:43:05,840 words, the parties will not have already gone through the process of developing their case 321 00:43:05,840 --> 00:43:13,240 in terms of the normal free trial preparation through motions and discovery. They'll just 322 00:43:13,240 --> 00:43:22,280 know that there's a claim that something has happened and whatever the initial response 323 00:43:22,280 --> 00:43:28,640 to it is by the party who's being charged with having breached duty or caused an injury, 324 00:43:28,640 --> 00:43:38,680 etc. So there definitely is a space, I would say here, before the case is filed for a good 325 00:43:38,680 --> 00:43:51,000 outcome that would reduce all of the expense and the emotional strain caused by going through 326 00:43:51,000 --> 00:44:02,280 litigation. Once the discovery has been initiated, there is potential there also for trying to 327 00:44:02,280 --> 00:44:10,880 resolve to get the case resolved. How many times have we heard, well, now that I've seen 328 00:44:10,880 --> 00:44:18,360 the responses to the interrogatories, I need to take 10 depositions and get all this information 329 00:44:18,360 --> 00:44:27,520 from third parties that may be very difficult. And so there is an opportunity to again suggest 330 00:44:27,520 --> 00:44:35,920 to the parties to kind of lead them to an outcome that will simplify the resolution without 331 00:44:35,920 --> 00:44:44,320 having to go through all of that fact finding. Oftentimes, I will get a call from parties 332 00:44:44,320 --> 00:44:54,200 who are asking me to mediate because the court has imposed a period of time within which 333 00:44:54,200 --> 00:45:02,280 they need to conduct a mediation. And so in that instance, I would say the neutral is 334 00:45:02,280 --> 00:45:10,120 especially empowered with the ability to try to facilitate a resolution because you know 335 00:45:10,120 --> 00:45:17,120 that you can say, well, Judge Jones says that you need to mediate this case within 30 days 336 00:45:17,120 --> 00:45:24,160 and so we need to pick a date. We can't dilly-dally about the calendar. We need to find a time 337 00:45:24,160 --> 00:45:33,560 to get together and make this work. And the beauty of going back to the pandemic in an 338 00:45:33,560 --> 00:45:39,760 earlier part of the session, one of the beauties of it is that we now know that we can conduct 339 00:45:39,760 --> 00:45:49,320 ADR with ease and effectively virtually. So it no longer should be an excuse about someone 340 00:45:49,320 --> 00:45:57,440 being out of town or unable to come and meet in person because we can do this using Zoom 341 00:45:57,440 --> 00:46:05,560 or Teams or any other virtual platform that might be suggested. So basically, don't need 342 00:46:05,560 --> 00:46:11,520 to go through the whole slide, but the point is that at different parts of the process, 343 00:46:11,520 --> 00:46:19,400 it was the neutral will have an opportunity to help the parties resolve their dispute. 344 00:46:19,400 --> 00:46:27,520 So now we need to talk just a little bit more about what is the role and what are the responsibilities 345 00:46:27,520 --> 00:46:39,720 of neutrals. We obviously know that you are to be neutral, hence our name. And that shouldn't 346 00:46:39,720 --> 00:46:52,160 be hard, but because the process is much more informal than when you are in court in a hearing, 347 00:46:52,160 --> 00:46:59,600 and for those of us who once wore the black robe, there is a transition in understanding 348 00:46:59,600 --> 00:47:06,120 now that you still have authority with the parties, but you're there because they have 349 00:47:06,120 --> 00:47:10,760 selected you, not because they have to be in your courtroom because your case was assigned 350 00:47:10,760 --> 00:47:19,000 to you. And so you have to be very careful to make sure that you continue to display 351 00:47:19,000 --> 00:47:31,400 your ability to be neutral and your being impartial. The most best practices that I 352 00:47:31,400 --> 00:47:38,360 have reviewed definitely require you to go over all of this with the parties, even if 353 00:47:38,360 --> 00:47:44,920 their attorneys have already done so, because what's most important is for the parties, 354 00:47:44,920 --> 00:47:52,000 the people that you are meeting for the first time and you have to gain their trust with 355 00:47:52,000 --> 00:47:58,400 you as well as the process. They need to understand, well, what are the rules that govern my having 356 00:47:58,400 --> 00:48:06,400 to interact with you? So you are to maintain their confidentiality. If they share anything 357 00:48:06,400 --> 00:48:14,640 with you in perhaps a caucus and a session where it's just you and them and their advocate, 358 00:48:14,640 --> 00:48:18,480 and then you're going to leave their room and go to the other room, you need to make 359 00:48:18,480 --> 00:48:26,920 sure that you know that you have their permission to share any information. Generally, it's considered 360 00:48:26,920 --> 00:48:34,280 to be confidential unless they tell you you have permission to share any information. 361 00:48:34,280 --> 00:48:39,560 And then there are various standards of ethics that you need to make sure you review and 362 00:48:39,560 --> 00:48:49,680 that you understand so that there are no conflicts or any other breaches of ethical conduct by 363 00:48:49,680 --> 00:49:00,000 you as the neutral. So I like to call these our ideal responsibilities. We certainly should 364 00:49:00,000 --> 00:49:07,520 aspire to meet and exceed all of these. And I think it's important to spend a little bit 365 00:49:07,520 --> 00:49:17,200 of time on this. So the context again is that you have been selected by the parties most 366 00:49:17,200 --> 00:49:27,160 likely or randomly assigned if this is a court annexed mediation situation. And you have 367 00:49:27,160 --> 00:49:36,760 to set the tone for communication. What are you going to permit, I guess, to be the tone 368 00:49:36,760 --> 00:49:45,880 of parties speaking to each other, advocates speaking to each other? It's less about how 369 00:49:45,880 --> 00:49:52,960 they're addressing you. It's far less formal than it would be if you were a judge in a 370 00:49:52,960 --> 00:49:59,800 court proceeding. But you need to set the tone for communication. You need to determine 371 00:49:59,800 --> 00:50:09,320 early on in your session as to what are the goals? You know, why are we here? What is 372 00:50:09,320 --> 00:50:17,160 it that you would like to tackle first? So if it's the type of case that has several 373 00:50:17,160 --> 00:50:27,240 potential sub resolutions to be achieved, then what order do we want to go in? So as 374 00:50:27,240 --> 00:50:34,920 the next point says determining the issues and potential pain points. One thing that 375 00:50:34,920 --> 00:50:41,400 I have always found to be very helpful as a mediator is to meet with the advocates, the 376 00:50:41,400 --> 00:50:48,760 attorneys, if there are attorneys involved for each side separately prior to the actual 377 00:50:48,760 --> 00:50:56,560 mediation session. And that gives you an opportunity to get a whole lot of information directly 378 00:50:56,560 --> 00:51:04,880 from the attorney outside of the presence of their client. So they would be able to express 379 00:51:04,880 --> 00:51:12,680 to you and inform you of perhaps topics to be avoided or topics that are going to be 380 00:51:12,680 --> 00:51:19,080 emotional topics that are going to trigger responses from the parties and in prepare 381 00:51:19,080 --> 00:51:29,000 you so that you can receive the information but not react in a way that may appear not 382 00:51:29,000 --> 00:51:36,400 to be partial or that you're being judgmental. You want to make sure that they understand 383 00:51:36,400 --> 00:51:42,760 the process so you go over the rules, whether or not it's confidential, that you're not 384 00:51:42,760 --> 00:51:47,480 going to be a witness in their case, that you're not going to run until the other side 385 00:51:47,480 --> 00:51:53,440 things that they ask you not to, that you're not going to be communicating about them with 386 00:51:53,440 --> 00:51:59,920 the assigned judge. All of these things are important for them to understand before you 387 00:51:59,920 --> 00:52:07,400 start the process officially. So usually this would be covered in an opening session. And 388 00:52:07,400 --> 00:52:12,160 it's up to you in the dynamic between the parties as to whether or not you're going 389 00:52:12,160 --> 00:52:17,680 to do this with everyone in the same session, in the same room, around the same table, or 390 00:52:17,680 --> 00:52:23,840 whether you're going to do it in effect twice, explaining to each side but separately. It 391 00:52:23,840 --> 00:52:35,080 is your job or responsibility to give the parties suggestions for things that they may 392 00:52:35,080 --> 00:52:41,280 consider in order to resolve the case. You're not going to just say, well, this is what 393 00:52:41,280 --> 00:52:47,360 you should do, but you certainly are in a position to share with them some suggestions 394 00:52:47,360 --> 00:52:54,720 to ask them some probing questions that may cause them to consider or reconsider a position. 395 00:52:54,720 --> 00:53:02,320 You are definitely guiding the negotiations. It is not your role. And you are underserving 396 00:53:02,320 --> 00:53:07,840 the parties if you're merely carrying a piece of paper back and forth with numbers on it. 397 00:53:07,840 --> 00:53:16,080 You're not to be merely a messenger. You are bringing to the table. They are paying you 398 00:53:16,080 --> 00:53:23,440 as the neutral for your experience. So you need to share the experience in productive 399 00:53:23,440 --> 00:53:31,160 ways. You need to help them to reach agreements. You need to be able to monitor the room and 400 00:53:31,160 --> 00:53:36,960 whether or not they need to take breaks, whether or not there needs to be a step back on assessing, 401 00:53:36,960 --> 00:53:48,320 are you making progress, and keeping them engaged in the process. All of these are ideal attributes 402 00:53:48,320 --> 00:53:56,080 of a good mediator. So having shared all that I have with you, and I hope that you have 403 00:53:56,080 --> 00:54:05,680 had some good takeaways from the slides and the presentation, it is not always the case 404 00:54:05,680 --> 00:54:14,080 that you're going to be in a situation, in a mediation or arbitration or settlement conference 405 00:54:14,080 --> 00:54:21,600 with attorneys, I mean with parties, both of whom have attorneys. Oftentimes you will have 406 00:54:21,600 --> 00:54:30,640 what's referred to as a pro-per, a self-represented party, a pro-say party, and that requires you 407 00:54:30,640 --> 00:54:39,520 as the neutral to approach the process very carefully. We just went over the importance 408 00:54:39,520 --> 00:54:49,040 of the parties understanding the process. You need to make sure that you have taken the time 409 00:54:49,680 --> 00:55:00,160 to understand their position. It's there any number of reasons why they may be there without an 410 00:55:00,160 --> 00:55:06,960 attorney. They may have started with an attorney. The attorney may have not been able to serve them 411 00:55:06,960 --> 00:55:18,400 well and actually dump them as the client. It could be that it is a problem, difficult party 412 00:55:18,400 --> 00:55:25,760 who cannot get along with his or her attorney or maybe feels that they know better than the 413 00:55:25,760 --> 00:55:33,040 attorney and they're unable to take advice. It may be a matter of finances not being able to find an 414 00:55:33,040 --> 00:55:40,640 attorney that's willing to take the case that the party can afford. There are any number of reasons 415 00:55:40,640 --> 00:55:48,400 why the person may be there without an attorney and it is absolutely part of being fair and 416 00:55:48,400 --> 00:55:55,920 impartial and neutral not to make an adverse judgment about them or their case as a result of 417 00:55:55,920 --> 00:56:04,960 their not having an attorney. You need to make sure that you are able to break down the rules 418 00:56:04,960 --> 00:56:12,480 such as they are, the process, the value of going through this why it's not a waste of their time 419 00:56:12,480 --> 00:56:22,800 in a way that they can communicate. Your initial interaction, the first several minutes of the 420 00:56:22,800 --> 00:56:32,080 session will be important for you to gain their confidence in your ability to help them to resolve 421 00:56:32,080 --> 00:56:41,680 their case. There will be challenges. It's certainly not easier if one party does not have 422 00:56:41,680 --> 00:56:48,720 an attorney. It may be easier if both parties don't have an attorney but that doesn't mean that it's 423 00:56:48,720 --> 00:56:56,640 going to be an easy mediation because then what you have to do is to listen especially well to 424 00:56:56,640 --> 00:57:06,000 both sides and to be able to summarize and regurgitate and repeat back what is being said 425 00:57:06,000 --> 00:57:13,600 in a way that you understand as well as a way that may be helpful to the other side and ultimately 426 00:57:13,600 --> 00:57:22,640 that will cause the party that you're not speaking for but facilitating what they're trying to 427 00:57:22,640 --> 00:57:27,760 communicate in a way that they say oh okay yes this person gets what I'm trying to say. 428 00:57:27,760 --> 00:57:36,480 I think I can do this and I'm willing to spend time and so I would say that it 429 00:57:37,360 --> 00:57:46,000 it does take a lot of patience. I think mostly it's a matter of listening very carefully 430 00:57:46,640 --> 00:57:56,480 in getting each side the opportunity probably to vent more than you may wish to hear but it's 431 00:57:56,480 --> 00:58:03,120 important for them to be able to share what they have to share especially if they've been ordered 432 00:58:03,120 --> 00:58:09,680 to come and do this with you as opposed to presenting their case you know directly in court 433 00:58:09,680 --> 00:58:19,040 as perhaps they had originally planned. I have enjoyed mediation with pro-per parties 434 00:58:19,040 --> 00:58:30,160 and and find that most often if you communicate to the attorney if there's an attorney involved 435 00:58:30,160 --> 00:58:39,360 on the other side that you're not planning to to be unfair to their client who's paying them 436 00:58:39,360 --> 00:58:50,160 to be there oftentimes the professionalism that is exhibited is quite rewarding as they try to assist 437 00:58:50,720 --> 00:58:57,840 you in making sure that the other side without the attorney understands the process. 438 00:58:58,560 --> 00:59:05,840 If there are not attorneys involved most likely you should contemplate as the neutral 439 00:59:05,840 --> 00:59:13,040 not merely facilitating an agreement but guess what actually writing out the agreement because 440 00:59:13,040 --> 00:59:25,920 the pro-per parties are most likely not going to be equipped to put in writing what has been agreed to 441 00:59:25,920 --> 00:59:35,440 in a way that will be acceptable by the court if the case was assigned to you by a judge. 442 00:59:36,000 --> 00:59:44,480 So in that instance it's very important for you to start developing kind of a form file of 443 00:59:44,480 --> 00:59:56,240 basic agreements that you can fill in the blanks as specific cases come before you. 444 00:59:56,240 --> 01:00:03,600 So it looks like we've we've come to the end of this session I'm not sure what order this will appear 445 01:00:03,600 --> 01:00:12,560 in but it has been my absolute pleasure to share with you my views and experience as a mediator 446 01:00:12,560 --> 01:00:23,040 as well as a trial judge. I truly believe in the value of ADR at any point along the way 447 01:00:24,240 --> 01:00:30,720 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. 448 01:00:31,280 --> 01:00:37,840 We certainly have time constraints on a published calendar but I always encouraged 449 01:00:37,840 --> 01:00:45,200 parties and their attorneys to try to work out the cases on their own because ultimately as I've said 450 01:00:45,680 --> 01:00:54,080 before when you are invested in the outcome based on what you have been willing to give up and 451 01:00:54,080 --> 01:01:06,000 compromise you're most likely going to be less inclined to end up back in court because on a 452 01:01:06,000 --> 01:01:14,800 contempt for failing to abide by what you have agreed to contempt usually arise when the parties 453 01:01:14,800 --> 01:01:24,000 didn't have control over the outcome and they feel that they have the inability to comply or they still 454 01:01:24,960 --> 01:01:31,840 do not have the will or willingness to comply with what they've been ordered to do against 455 01:01:31,840 --> 01:01:40,960 their wishes. So good luck to all of you mediation, arbitration, settlement conferences, three important 456 01:01:40,960 --> 01:01:51,360 aspects of ADR and it's a really enjoyable career path that I have ended up on. I enjoy 457 01:01:51,360 --> 01:01:57,040 being able to kind of roll up the sleeves and help parties reach resolutions outside of the 458 01:01:57,040 --> 01:02:02,960 courthouse so I think you will as well. Thank you. You may be eligible for CLE credit in your state. 459 01:02:02,960 --> 01:02:28,320 Visit bhba.org slash podcasts for more information.