Arbitration (It's not Mediation!)

Arbitration requires that the parties allow a neutral third party to make a decision, without due process protections, and usually is ‘binding” to require that the parties give up their right to go to court and agree to accept an opinion by a third party, who could be described as a “private judge.” Since some businesses, employers and consumer contracts require arbitration, I am including it in the series.

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SETTLEMENT CONFERENCES, NARRATIVE MEDIATION & MED-ARB

I have been on the road a lot this month! I really enjoyed a workshop with the Virginia Mediation Network in late September on The Alternatives in Alternative Dispute Resolution. In early October I had the pleasure of participating in a symposium on Restorative Justice at the University of Richmond. But today, I’m returning to my series on the options in Alternative Dispute Resolution. Today, I am going to address a few options, in more general terms. Some are early in development, and I have not fully described them. Others involve processes that many practitioners do not include under the ADR Umbrella.

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STRUCTURED NEGOTIATION

Today I continue my series on the alternatives in ADR. In this series, based on an article that I drafted for my upcoming workshop with the Virginia Mediation Network in Richmond, Virginia, I review the options that parties can select under the umbrella of Alternative Dispute Resolution or ADR. Today, I’ll continue to describe options that do not include a neutral facilitator, such as a mediator or arbitrator. Structured Negotiation is another way attorneys can approach cases that formerly could only be resolved through litigation.

The Structured Negotiation process occurs without a lawsuit on file and avoids many of the perils of litigation, including the expense, the involvement of third-party decision-makers, and the complicated procedural rules.

structured negotiation is an adr process

Created by attorney Lainey Feingold, she developed the concept when working on civil rights litigation when banking institutions failed to create ATMs that were equally accessible by all consumers.  She organized the client group who wanted to focus on resolving the issue by finding a solution, rather than becoming embroiled in litigation.  The banking institutions agreed to the process and together worked on a solution to the problem.   

Unique qualities: 

This negotiation process creates an opportunity to establish an inclusive, consensual process to address all issues that contribute to the conflict and create a resolution that is often “out of the box” and satisfies the affected parties.

Steps or stages:

The process begins when a party agrees to the process and retains an attorney.  The attorney then explores the potential for structured negotiation with the other party, generally through a letter of introduction.  Once both attorneys and parties agree to the process, they enter into a Structured Negotiation Agreement that outlines their ground rules. They engage in informal discovery, and participate in meetings and negotiations to explore options to reach short and long term goals.  Once the parties agree to remedial action, they may address the financial issues and settle.  The process continues when the settlement is implemented, and the parties monitor the implementation and make modifications by consensus.   Since the parties have agreed to the terms, court involvement is often unnecessary.

conference rooms are more comfortable for conflict resolution than court rooms

Advantages:

  • Less expensive than litigation.

  • Private.

  • Permits parties to make decisions.

  • Provides greater resources to address complicated issues by bringing everyone together with experts in the context of problem-solving meetings.

Disadvantages:

  • It may not be possible to toll the statute of limitations.

  • As a new process, some attorneys are reluctant to engage.

  • When both financial and policy issues are presented, the insurance company structure creates challenges in setting up ground rules and processes.

Best for:  Civil cases, “Impact” litigation.

For more information:  Lainey Feingold, Structured Negotiation, (2016).

COLLABORATIVE PRACTICE AND COLLABORATIVE LAW

Today I am continuing in my series on the alternatives in Alternative DIspute Resolution (ADR). Thus far in the series, I’ve primarily focused on processes that use a neutral facilitator, often a mediator. Today I’m going to switch gears and discuss a process that does not use a facilitator, rather professionals who have additional training in ADR that qualifies them to concurrently use their professional training and specialized ADR training to have a full complement of processes to resolve the legal conflict. Collaborative practices is one of those processes.

Definition and Components:

collaborative divorce saves money

 Collaborative Practice is a voluntary dispute resolution process when parties settle without litigation.  The process requires:  that the parties sign a collaborative participation agreement, disclose all relevant information, agree to use good faith negotiations, and be represented by a lawyer with sufficient training in the process who also will not represent the party in the litigation.  The process may involve additional experts, including mental health and financial professionals.

Unique qualities:

Lawyers participate and provide legal advice to their clients in the presence of all parties.  The parties agree to provide all relevant information and to reach an agreement through the process or retain new attorneys. 

Steps or stages:

The process begins when parties sign a participation agreement when meeting with the team initially.  The lawyers and clients, and other members of the team convene a series of four-way meetings, and the team works to resolve the legal issues to the satisfaction of all parties.  When an agreement is reached, the attorneys may continue representing the parties when court approval of an agreement is required.  When the parties cannot reach an agreement, the team terminates the process and the parties retain new counsel.

Advantages:

·      Parties have control and create their outcome.

·      A decision is not binding until the parties reach an agreement and it is adopted by the court, in some areas.

·       Decisions are fully informed.

·      Generally less expensive and less time consuming than litigation.

·      Some participants report reduced stress and anxiety.

·      The team approach to address the legal, financial, emotional, and parenting aspects allow for more significant resources in resolving difficult problems.

·      Agreements tend to be created by the family, and they are often more sustainable.

·      Confidential.

 Disadvantages:

·      Parties who cannot reach an agreement must obtain new counsel.

·      When the parties need additional resources through a financial neutral or mental health professional and do not have those resources, it is difficult to get a superior resolution.

reaching an agreement in collaborative divorce

·      Insufficiently trained professionals are available to provide adequate choices for parties to select this method.

 Best for: 

Wills and estates, health care disputes, employment, business, and family disputes.  Has been used successfully in civil litigation.

For more information:

Stuart Webb and Ronald Ousky, The Collaborative Way to Divorce, (2006).

Pauline H. Tesler, Collaborative Law (3rd Ed. 2016).

 Ethical Standards for Collaborative Practices

Sample Form-Sample Participation Agreement

To locate professionals in your area: https://www.collaborativepractice.com/members

Restorative Justice as an Alternative Process

Today, we continue in our review of the alternatives within ADR and will look at restorative justice or restorative practices. My law and mediation practice is based in the principles of restorative justice. Today’s post looks more at a few of the processes often associated with restorative justice that are sometimes used instead of conventional litigation or court processes.

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EARLY NEUTRAL EVALUATION

Today, I’ll continue my series on the Alternatives in Alternative Dispute Resolution that I began earlier this summer after facilitating a workshop on this issue In July for the West Virginia State Bar. In September, I’ll be joining the Virginia Mediation Network to facilitate the workshop for that fabulous group of mediators. Today’s process is more common in Canada than in the areas where I practice, but Early Neutral Evaluation may save the parties a great deal of anguish, time and expense.

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TRANSFORMATIVE MEDIATION: A GOOD CHOICE FOR PRESERVING IMPORTANT RELATIONSHIPS

Transformative mediation was first described by Robert A. Baruch Bush and Joseph P. Folger in The Promise of Mediation.  They describe it that the transformative theory starts: “(…(F)rom the premise that inter-relational crisis is what conflict meant to people.  And help in overcoming that crisis is a major part of what parties want fro a mediator…In the transformative mediation process, parties can recapture their sense of competence and connection, reverse the negative conflict cycle, reestablish a constructive (or at least neutral) interaction, and move forward on a positive footing, with the mediator’s help. “ Transformative mediation is not therapy.  The mediator's goal is not to alter the relationship. Rather, the mediator strives to balance the parties' negotiation power while creating opportunities to address underlying issues, within the context of resolving the presenting dispute. 

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Facilitative Mediation: A Good Model for Many Types of Conflicts

In facilitative mediation, the mediator works to facilitate negotiation between the parties using interest-based or win/win strategies. The parties work directly with the mediator and may include discussions regarding feelings and expectations.  The mediators guide the parties in making informed decisions.  The mediator does not advise the parties or attempt to influence their decisions.  Parties may have attorneys, but typically, the lawyers do not attend the mediations. Facilitated mediation can be used at any stage of litigation. Brenda Waugh offers a free monthly workshop to assist you in understanding your options in mediation.

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