Achieving Workable – and Just – ADR Results in Family Law

Judge Deborah Fleck (Ret.), JAMS mediator and arbitrator

Judge Deborah Fleck (Ret.), JAMS mediator and arbitrator

Mediation, the ADR vehicle most commonly used in family law cases, frequently results in a final settlement – but often only after a marathon session dealing with the many important issues in the lives of family members.

There are ways to improve the process and results of family law mediation. The keys are open communication, adequate preparation, proper timing and mediator selection.

Open Communication – With the Opposing Party and With the Mediator.  Pick up the telephone early in the case.  The working relationship you develop by actually speaking with reasonable opposing counsel can save time and money.  While it may seem that using email is more efficient, it often takes more time and creates additional conflict.

Once discovery is reasonably complete, and the parties have had sufficient time to begin addressing the emotional and financial upheaval of separation, you can develop creative potential solutions with your client.   Exchanging mediation letters with legal issues defined and important documents attached far in advance of mediation can streamline the mediation process, and increase the likelihood of resolution on mediation day. Also, many mediators make a pre-mediation call, in which attorneys can provide information that is often helpful to the mediator in finessing trouble spots.

Preparation – Worth the Effort.  An attorney who is well prepared for mediation has not wasted time – if the case doesn’t settle, it is well on the road for trial.  If it settles, as most cases do, mediation will have saved time, money, and emotional stress for the parties.

Proper Timing and Mediator Selection.  Family law cases have emotional timelines, distinct from other types of litigation.  In many cases, it takes several months for one party to reach a stage of partial equilibrium.  It is not helpful to attempt to settle family law cases before both parties have reached that comfort level.  But when both sides are emotionally ready and have enough information regarding the facts and the law, mediation can allow them to avoid the financial and emotional costs of trial and move on with their lives.

When attorneys have worked together for several months, they can identify a mediator with the listening skills, depth of knowledge, temperament, and creativity to help the parties achieve resolution.   By focusing on what is just and equitable for both parties, attorneys and the mediator can achieve a compromise solution that is acceptable, one that meets the needs and abilities of both parties.

Hon. Deborah Fleck (Ret.) is a neutral with JAMS based in Seattle. She served for more than 20 years on the King County Superior Court and handles a wide range of complex civil, estate/probate, family law and personal injury cases. She can be reached at dfleck@jamsadr.com.

What is . . . ADR in Health Care

ADR is the practice of resolving disputes through processes other than litigation. The most common forms of ADR are mediation and arbitration, but many other forms exist in the Health Care arena to address specific types of disputes and their need for tailored processes for unique situations. Some of these include hearing officers for hospital hearings, referees for discovery disputes and early neutral evaluation of cases.
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As the ADR leader for more than 35 years, JAMS has neutrals who have developed unmatchable expertise in the resolution of Health Care disputes. Written by some of our top health care panelists, What Is…ADR In Heath Care Disputes is the latest addition to the What Is… book series published by the ABA. In this volume, Viggo Boserup, Brian Parmelee, Jerry Roscoe, Hon. Janice Symchych (Ret.), Wayne Thorpe and Cathy Yanni offer valuable insights on ADR and how these tools can help to avoid costly litigation.

Attorneys in Health Care must remain up-to-date on regulatory changes, industry trends, the economic climate and changes in the law to help resolve disputes for their clients. JAMS is committed to helping our clients and our neutrals stay informed on developments in Health Care. More information about our experienced panel can be found on our Health Care practice page.

 

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Technological Advances Help Resolve Disputes

Kimberly TaylorThe modern lawyer has a very different lexicon from her predecessors, and an entirely new array of tools for practicing law and managing the practice of law.  This is the era of the Internet of Things, where Big Data is increasingly important, and Predictive Analysis is a tool used across virtually every industry and within virtually every major law firm.

At a time where there is unprecedented pressure on in-house counsel to manage legal budgets and where law firms are competing for position in a hyper-competitive market, these tools can help both outside and in-house counsel—as well as business decision-makers—better understand the likely cost involved in litigation as well as potential outcomes.  Tools like IBM’s Watson are being used across many sectors to identify opportunities for revenue growth, improve operational efficiencies, make better staffing decisions, mitigate risks and reduce costs.

Today’s lawyers are harnessing these innovations and many others to improve the delivery of legal services.  Is there a place for this kind of innovation in negotiation and mediation?  As technologies and our methods of communication evolve, it is natural to assume that our means of negotiating and mediating will also evolve.  In fact, numerous advancements have occurred over the past decade that are already impacting Alternative Dispute Resolution.

For example, Picture it Settled uses intelligent software that, according to its website, “has learned negotiation strategy from deep data from negotiation patterns in several thousand litigated cases,” which helps parties anticipate reactions to negotiation moves and improve forecasts for settlement outcomes.  Modria provides an online platform for the resolution of disputes across many platforms. Its founders created the online dispute resolution (ODR) systems at eBay and PayPal, which are entirely automated.   The European Commission passed regulations in 2013 requiring the establishment of an ODR platform for disputes arising out of online consumer transactions, and the UNCITRAL (United Nations Commission in International Trade Law) Working Group III is continuing its work in drafting procedural rules to resolve disputes arising out of cross-border, e-commerce transactions in an online environment.  Clearly, the marketplace is changing and adapting to the world of e-commerce.  For disputes that arise from online transactions, involving people and companies who have almost never have any kind of personal interaction, it makes sense to employ an ODR mechanism.

Can these tools be used for business disputes, or to resolve tort or other claims, where the parties have an interest in preserving relationships, or resolution requires some venting of feelings and emotions as a form of catharsis?  Traditional advantages of mediation are well known.  Mediation is confidential, delivers time and cost savings, helps to preserve relationships and gives users control, flexibility and predictability in the face of the unpredictability of litigation outcomes.   Conventional wisdom is that these advantages are best realized when the parties meet face-to-face with the mediator, and there has been a great deal of skepticism about whether a fully online platform can be utilized to resolve offline disputes.

Predictably, technology is adapting and ADR providers are creating tools that harness the benefits of an ODR process while allowing the kind of personal interaction that may be necessary to bring a matter to closure.  For example, JAMS recently launched JAMSConnect, a browser-based online video and audio application that offers parties an efficient mediation alternative when the value or complexity of claims do not warrant a traditional, in-person mediation session.  While it can be used for any type of dispute, it is ideal for low to moderate value claims that can be resolved in short sessions.   The process requires only a phone and a computer with a webcam, and includes real-time streaming video, virtual caucus rooms for private conversations with the mediator, document sharing, and operator support to help with any technical issues.  Other ADR providers are also creating their own processes, some in concert with Modria.

While it’s hard to imagine a world where certain disputes are resolved without human interaction, technology will evolve to that point. Already the automation of litigation is underway, and those innovations will impact how parties resolve their disputes in the very near future. Options like JAMSConnect, Picture it Settled and Modria-powered ODR tools are leading the industry and will help shape how the future of ADR will look.