ADR and the Occupy Movement: The Importance of Dialogue

The Occupy Movement has dominated headlines for the past several months and garnered significant attention. Though the movement is inherently political and certainly controversial, there did emerge themes from Occupy that echo values long held in the ADR community. Specifically, both the Occupy Movement and the ADR community place significant emphasis on the importance of dialogue.

Dialogue and consensus emerged early on as a core value of Occupy. Each city’s group handled its own decision-making, and many only issued statements after lengthy discussions where all voices were considered. Whether this was successful is hard to tell. Many criticisms of the movement focused on the fact that there was no central message or theme for Occupy and it was hard to comprehend what, exactly, participants believed. At any rate, it is not this blog’s role to comment on or evaluate the success or failure of a political movement.

What is interesting is how Occupy’s emphasis on dialogue mirrors what happens in ADR. As practitioners, we know first-hand how crucial it is to provide space for all sides in a dispute to bring out their positions. As with Occupy, this can sometimes seem counterproductive as it leads to a cacophony of voices, opinions and interests. Eventually, however, the air is cleared and the real work of finding resolution can begin.

This is, of course, where ADR parts ways with Occupy, it seems. Dialogue in ADR almost always leads to resolution. Parties may not leave the process having received everything they wanted, but there is resolution nonetheless. The reason dialogue moves in a productive way in ADR is, of course, because there is a practitioner in the room guiding the process.

And, perhaps this is why ADR succeeds in its approach to dialogue, where Occupy can be seen to have unraveled somewhat. At the core of any ADR process is the practitioner, who guides parties as they lay out their positions, grievances and expectations. There is someone in the room to give shape to the cacophony, and help parties see points of agreement so the real sticking places can be worked through. As ADR practitioners, our role is not to take a place in the process above the parties, but to serve as a guide and facilitator to move things forward.

Perhaps the Occupy Movement could learn something from the ADR approach. It has, after all, worked very successfully for quite some time.

Five Steps to Facilitate a Fair and Efficient Arbitration

Zela "Zee" G. Claiborne, Esq.

Today’s post comes from Zela “Zee” G. Claiborne, Esq., a JAMS neutral since 2008.  She specializes in complex domestic and international business disputes including commercial, IP, real estate and construction matters.

Following are some tips to help even the most experienced counsel take advantage of one of arbitration’s best benefit: flexibility.

1.       Design the Process at the Preliminary Conference

The preliminary conference is a good time to design an effective process, agree on the hearing dates and location, set a time to submit a discovery plan and schedule dates to exchange witness lists, arbitration exhibits and prehearing briefs.

First, set hearing dates and stick to the schedule. Arbitration hearings are best held on consecutive days. It may make sense to schedule an extra day or two in case the hearings take more time than expected, since continuances can be extremely expensive.

Second, limit motion practice.  Motions in limine and dispositive motions can be wasteful at arbitration, especially if there has been little discovery.

Third, consider whether the hearings should be bifurcated into liability and damages phases, for example, or otherwise set to move forward in phases.

In all of these matters, arbitrators can make the necessary rulings if counsel cannot reach agreement.

2.       Limit Discovery

Discovery is the most expensive part of any arbitration, especially now that so much of it involves electronically stored information. Establish a discovery plan, being mindful that discovery should be proportional to the complexity of the dispute. Agree to limit electronic discovery in order to avoid enormous costs.

3.       Limit Time for Hearings

Agree on a limited number of hearing days. The “chess clock” approach, where the parties divide time equally, is one of the best ways to avoid unnecessary costs. Time limits discipline everyone to focus on the most important documents and testimony.

4.       Avoid Unnecessary Objections

Since the rules of evidence generally do not apply in arbitration, raising numerous objections is not useful. It may be important to object to hearsay in order to alert the panel to it, but that objection will only go to the weight of the evidence and will not preclude it. Save objections for important matters and avoid repeated interruptions.

5.       Select Decisive Arbitrators

None of these techniques for making arbitration economical will work unless the arbitrators are experienced, decisive and willing to make necessary rulings. Good arbitrators actively manage a case.

They should be available to make discovery decisions promptly through e-mails or conference calls–not ex parte, of course–and on short notice. Arbitrators should be skilled at moving the hearings along and making rulings as needed in accordance with the rules. Active arbitrators assist in dealing effectively with cumulative evidence and avoiding gamesmanship.

Using these suggestions and working with others to streamline the process will lead to a cost-effective resolution and greater client satisfaction with the process, win or lose.