Moving from Preparation to Negotiation – How to Cause Failure in Mediation – Part 1

Alexander S. Polsky, Esq.

Alexander S. Polsky, Esq.

by Alexander S. Polsky, Esq.

Much has been written advising of various tips to make mediations work.  Let’s address ways folks are making sure their mediations fail!  Here are a few:

Mediating too early:  Early stage mediation is a very effective method to minimize risk, and control transaction costs.  However, for these to succeed, it is necessary for the parties to agree that they will mediate on the information possessed, or to engage in a pre-mediation exchange. Early mediations fail when significant unknown information is brought out, which requires further investigation or formal discovery.

Selecting the wrong mediator:  It is a simple fact that certain mediations require core interpersonal skills.  Death, catastrophic injury and employment cases require a mediator who is good with people, and possesses empathetic listening skills.  A head banger or mediator with an aggressive and evaluative style can kill a deal in emotional cases.  Similarly, complex multi-party cases with complicated factual issues require a firm hand that will manage the process and understand the issues.  So find a mediator trusted by both sides, with the skill sets for the people, process and issues.

Expertise in facilitation trumps subject matter expertise every time!

Not preparing the mediator:  Mediators need information, submitted early enough for us to design the most effective process.  Not taking the time to have a pre-mediation call, or submitting a well-written mediation oriented brief (more on this later), leaves the mediator guessing regarding the relationship between parties and counsel; the emotions of the case; and other key issues regarding the mediation process.

Similarly, supplying too much material is unhelpful.  A pile of exhibits, not referenced in the brief or highlighted for relevance is just a pile of paper.  Tell the mediator what should be reviewed, and append only that which is relevant.

To continue reading Mr. Polsky’s discussion on failures in mediation, please read the full article from Law.com.

From Bench to Mediator—Some Observations about the Transition

Paul Troy

Hon. Paul E. Troy (Ret.)

By Hon. Paul E. Troy (Ret.)

As the 2014 Mediation Week kicks off, I wanted to share my perspective about transitioning from a judge to a neutral. So far this experience has been incredibly rewarding and very interesting. I thought my clients would enjoy my observations and help them to understand my process.

First of all, a reality that I had studied, and soon encountered, is the intense emotions that cloud the negotiations and sometimes mask the true nature of the dispute. As a judge I had almost no exposure to the anxieties of the parties since trials are formal proceedings. Interactions were almost exclusively with the attorneys. Mediators experience all the tensions and soul searching inherent in the process of finding compromise. The initial joint session is often the first time that parties are able to verbalize the frustration, anger and hurt feelings that have been bottled up for years. Emotions cannot be ignored or downplayed. Unless the parties can vent and come to grips with these strong feelings against the other side and the nightmare that they have been living through, the mediation will be at risk.

The physical role played by a judge and mediator is also vastly different. During an ongoing trial, although I would take notes, make legal rulings, and certainly oversee everything, it was the attorneys that ran the show. They decided on their tactics, selected the jury, made openings and closings, and determined which witnesses to call and the content of their direct and cross examinations. Now, using “shuttle diplomacy” between the opposing parties, a mediator remains active to foster constructive dialogue, present options and proposals, work to overcome impasses and find common ground to facilitate settlement.

Another transition I faced as a new mediator was my affirmative obligation not to reveal confidential information I learned from one side. As a judge I tried to keep both sides in the information loop in order to insure a fair trial. In a mediation, each party decides what information it wants to disclose. It is common for a mediator to learn facts from an attorney or during a private caucus that could dramatically affect the bargaining dynamics of the parties. But if a party asks the mediator not to divulge this information to the opposing side, the mediator is ethically bound to follow that request. Confidentiality is not only necessary but essential since the entire process would break down if parties did not trust the mediator.

Another significant difference I experienced in mediating cases was being comfortable with ex-parte communications outside the presence of the other attorney.  When I was a judge, I would not speak privately about a case with one of the attorneys because of my obligation to be fair to both sides.  In mediations, however, private conversations are expected. They occur in memoranda, on the telephone, in the corridors, and in individual caucuses.  These private communications are necessary. They are the surest way for the mediator to learn each side’s unvarnished view of the case and potential settlement avenues.

As a trial judge I watched hundreds of juries return verdicts that brought elation to one side, but sadness and devastation to the other. Mediation allows parties to voluntarily determine the outcome of their case. There is an ebb and a flow to it that is amazing to watch. The wonderful thing is that mediation really does work and the vast majority of cases do settle.  It is such a rewarding experience to see a sense of relief come over the parties when they know that the nightmare is finally over and they can get back on with their lives.

The Evolution of International Commercial Dispute Resolution: From One Size Fits All to Bespoke Suit

Lorraine M. Brennan, Esq.

Lorraine M. Brennan, Esq.

By Lorraine M. Brennan, Esq.

Several years ago, I was giving a talk in Parma, Italy, on international commercial dispute resolution and the dramatic changes the field had undergone in the past century.  Looking around the room, I noticed that everyone was exhibiting la bella figura (this was Italy, after all); thus, I decided to use a clothing metaphor for my musings.

The “One Size Fits All” Era

The first phase of the evolution I referred to as the “One Size Fits All” period.  Following the end of the Great War, business leaders from the U.S., the U.K., France, Italy, and Belgium—known as the Merchants of Peace—founded the International Chamber of Commerce, headquartered in Paris, France.  The aim was to provide a forum to discuss business disputes and avoid another war.  Once the institution was founded, the founders realized they needed a mechanism to resolve disputes, which lead to the founding of the ICC Court of Arbitration in 1923, although with rules of arbitration and conciliation.   At that time, however, international arbitration was not widespread, as there was no international enforcement mechanism in place that made it a viable option.  Moreover, the conciliation rules provided an opt-out for either party, thus rendering them essentially toothless.

With the advent of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), the world finally had a treaty that would allow for enforcement of foreign arbitral awards.  The Convention was concise, composed of only 16 Articles, and dealt with two issues:  the enforcement of the agreement to arbitrate and the enforcement of the resulting arbitral award.  The United States ratified the Convention in 1970, and to date there are 150 countries that are signatories.  This development was a dramatic and major step forward for international commercial dispute resolution.

Two other very significant developments were the 1965 creation of the International Centre for Settlement of Investment Disputes (ICSID) (the Washington Convention), designed to deal with Investor/State matters, and the Iran/U.S. Claims Tribunal of 1981.  Both bodies have contributed greatly to a “soft body” of international arbitration jurisprudence, and the Iran/U.S. Claims Tribunal elevated the status of the UNCITRAL Arbitration Rules by employing and adopting these rules for use at the Tribunal.

For the rest of The Evolution of International Commercial Dispute Resolution, please read the full article from Law.com by clicking here.

The Promise and Perils of “Med-Arb”

Maria Walsh

Maria Walsh

By Maria C. Walsh

When disputing parties tire of mediation (because it is too “weak”) or fear arbitration (because it is too “controlling”), they seek an Alternative Dispute Resolution solution that is “just right.”  Recently, I’ve heard a number of highly talented negotiators, and one famous law school, endorse med-arb as the best of all ADR worlds.  The advantages, however, come with caveats.

Through mediation, parties in conflict negotiate a dispute settlement with the assistance of a neutral mediator.  The materials, design, and strength of the deal all belong to the disputants.  If they can’t agree, the deal collapses.  Each party’s attraction to controlling the settlement terms through negotiation is tempered by the frustration that each lacks power to unilaterally impose a solution.  Sometimes mediation doesn’t feel sufficiently “muscular.”

In contrast, arbitration delivers closure because the parties give an impartial arbitrator authority to impose a decision.  The arbitrator decides the facts, judges the parties’ legal rights, and dictates the result.  Med-arb, as the name indicates, is a hybrid, sometimes proposed as a cure for a failed mediation.  Frustrated, tired of spending money, time, and effort in negotiation, parties want closure and may ask the mediator to provide a binding decision.  The neutral mediator who has weighed all the accusations and defenses, debated the various proposed solutions, and earned the trust of all parties during the mediation process, seems the perfect candidate to adjudicate the remaining irreconcilable differences between the parties.  Med-arb may be the perfect solution; but counsel considering med-arb should think about the following:

To continue reading Maria C. Walsh’s discussion on The Promise and Perils of “Med-Arb,” please read the full article from Law.com by clicking here.