E-Discovery Neutrals – Four Questions

Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

by Hon. Richard A. Levie (Ret.)

As electronic discovery issues permeate all kinds and sizes of litigation and arbitration, there are a minimum of four questions counsel should, and judicial officers might, consider in determining whether use of an e-discovery neutral is necessary and appropriate.

For context here, the term “e-discovery neutral” includes use of the neutral in a mediation or adjudicative function, or in a combination of both.  The e-discovery neutral may act as a mediator facilitating discussion, an adjudicator deciding disputed issues or first as a mediator and, if unsuccessful at resolution, then as an adjudicator.  If the neutral is operating in an adjudicative capacity, use of Federal Rule of Civil Procedure 53 (or a state analogue) and denomination as a special master probably are required.  The particular role for any dispute is highly individualized, but the underlying questions are the same.

Question # 1 – Do I need an e-discovery neutral?  Here are some issues to consider in determining your need.

  • The size and complexity of the case;
  • The number of documents and/or anticipated electronically stored information (ESI) disputes;
  • The amount of monetary relief sought;
  • Time-sensitivity;
  • The benefit to parties in having the ability to pick the neutral and the opportunity to tailor the neutral’s experience to the particular case;
  • Whether easy and timely access to the neutral is important; and
  • The anticipated cost of hiring a discovery neutral compared with the overall costs, importance and value of the case.

Question # 2 – How do I find an e-discovery neutral?

  • The three most obvious categories of individuals qualified to serve are retired judicial officers, lawyers experienced in ESI matters and individuals whose business is ESI, such as vendors and expert witnesses.
  • Likely the single best source is asking colleagues for recommendations.
  • Some court systems, such as the U.S. District Court for the Western District of Pennsylvania, have created panels of e-discovery special masters based upon that court’s evaluation of an applicant’s qualifications and experience in litigation, ESI and mediation.  This information is available to judges and lawyers.
  • There also are national organizations for special masters, such as the Academy of Court-Appointed Masters, which is a group of lawyers, retired judicial officers and ESI experts, not affiliated with any particular ADR provider, who have served as special masters in state and federal courts.
  • Working with a national or local ADR providers

To learn more about the rest of the questions and answers about e-discovery neutrals, please read the full article from Law.com by clicking here.

JAMS Ireland Opens in Dublin and Belfast

JAMS IrelandJAMS is proud to announce the addition of JAMS Ireland as the newest member of JAMS International. JAMS Ireland offers parties from different jurisdictions mediation and arbitration services in Dublin and Belfast.

JAMS Ireland is the latest addition to the growing international network of high quality commercial ADR providers that JAMS established in 2011. Other members include ADR Center in Italy and Results ADR in the Netherlands.

ADR in Ireland is on an upward trajectory, based on the economic realities and legislation encouraging consensual resolution of disputes. We are pleased to have quality partners who are working with us to take advantage of the growing need for commercial ADR in Ireland and to further expand our global network.

JAMS Ireland will be spearheaded by two very experienced lawyers, Paul Tweed and Gavin Bonnar, who between them have represented high-profile, international clients for more than 50 years.

“JAMS Ireland will offer a neutral and convenient geographical location as well as a world-class panel of experts with unique experience and a strong pedigree in mediating the most problematic cross-border and general commercial disputes,” said Mr. Tweed. “We have established this service with a view to providing efficient and cost-effective dispute resolution alternatives in both Irish jurisdictions, supported by the world-class expertise of JAMS in order to provide resolutions to the often sensitive issues arising from cross-border disputes.”

In addition to Mr. Tweed and Mr. Bonnar, the JAMS Ireland panel includes Lord Mawhinney, Aaro Suonio, Tom Kelly, Brian Speers, Paul O’Higgins, Michael Kealey and Fintan Drury, along with the talented JAMS panel of retired judges and attorneys.

In Defense of Joint Sessions

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Sophisticated ADR users increasingly instruct their neutral to skip the joint session and get down to business. They have grown weary of listening to tiresome opening statements and wary of encountering angry outbursts. Yet for some types of conflict – contentious trust litigation, high conflict divorce, clashing neighbors and emotional partnership disputes, to name but a few – the joint session can be the perfect tool to get the job done. It may seem counter-intuitive to place embattled participants in the same room and expect a peaceful outcome, but here is why it can work:

  • The parties have experience in settling problems between them. Take the example of warring adult siblings. These parties undoubtedly have decades of experience in solving family problems large and small. They have worked out ways to settle every prickly dispute from, “Who has to sit in the middle seat?” to “When should we put Dad in the home?” In a mediation setting, their experience in settling their own problems can be an invaluable asset in finding the best solution for them.
  • The parties (secretly) wish to resolve the emotional aspect of the conflict.  Whereas a personal injury plaintiff would likely not care whether his antagonist’s carrier overpays to settle a case, a divorcing spouse might well worry that the soon-to-be-ex won’t be able to squeak by on the proposed property division. It may be very important to participants that the settlement is viewed as fair to all sides. It is common in divorces for the parties to feel shame at their failed marriage. A joint session where parties are working on the problem together can address all of these concerns.
  • The parties will have an ongoing relationship. A lot of conflict involves parties who will never see and who never want to see each other again. But in cases where parties have an ongoing relationship, a civil and orderly joint session can set the framework for future interactions. Take the example of the heated neighbor dispute. A separate-caucus mediation might resolve where the fence is placed and what trees are planted, but what happens when the fence needs painting and the trees block the view? A well-run and respectful joint session might set the stage for future communications, enabling the parties to have a template for how they may solve the inevitable problems that arise in their future.

Admittedly, the joint session of an emotional case might feel nerve-wracking and uncomfortable at the outset, but the neutral will ensure that communications are respectful, outbursts are minimized and focus on the issue is maintained. In this way, estranged relatives may offer forgiveness, spouses may shed tears and business partners may shake hands.

In the right case, the joint session takes care of business – and then some.

Selecting Party Arbitrators

Richard Chernick, Esq.

Richard Chernick, Esq.

By Richard Chernick, Esq.

The use of party arbitrators is on the rise in the United States.  It is now common in U.S.-based commercial arbitrations with tripartite panels that the parties each select unilaterally one party arbitrator, who then together select the third.  Party arbitrators can be neutral or non-neutral but must follow standard ethical guidelines for disclosure and conduct.

Why a Party Arbitrator? 

The value of being able to appoint one arbitrator unilaterally is unmistakable.  It allows each side to appoint someone with expertise in the subject matter of the dispute or special knowledge of the industry or the technology involved, or special expertise in an area of the law or even with the arbitration process if that is important.  Industries that continue to use non-neutral arbitrators routinely, such as insurance or maritime, will generally appoint arbitrators based on their industry or subject matter experience and their comfort with the process. 

Neutral or Non-Neutral?

The first issue parties must decide is whether they intend the party arbitrators to be neutral or non-neutral.  Generally, most arbitration rules state that unless there is clearly expressed intent in the arbitration clause, the party arbitrators are to be non-neutral they are presumed to be neutral.  When a party arbitrator is first contacted, it is expected that counsel will discuss with the candidate his or her status; counsel will often consult with the client on this subject and sometimes with the other side.  If there is a consensus, the issue can be determined at that point; if there is disagreement, the practice is for both sides to proceed as if the party arbitrators are neutral until the panel or the arbitral institution is able to resolve the issue.  

Communications with party arbitrators at this stage of the proceedings are conducted ex parte, as allowed by the Code of Ethics, Canon IX.  Parties are free to discuss with the candidate his or her experience, suitability to serve, availability, possible disclosures, fee structure and general knowledge of the subject matter, industry, technology and area of law involved.  They may also discuss the selection of the chair and the names and qualifications of possible candidates for chair.  They may not discuss the substance of the issues in dispute or the candidate’s views about any disputed issue of fact or law.

Disclosure

Party arbitrators, whatever their status, are required to make disclosures to the parties once the appointment has been made.  A party may seek to disqualify a neutral party arbitrator based on these disclosures but may not disqualify a non-neutral party arbitrator.  The disclosures a non-neutral party arbitrator makes are informational only, primarily for the benefit of the chair and the other participants.

To learn more about Party Arbitrators, please read the full article from Law.com by clicking here.