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.

JAMS ADR Blog is Blawg 100 Winner

Blawg100HonoreeBadgeWe are thrilled to announce that the JAMS ADR Blog was selected to the ABA Journal’s Ninth Annual Blawg 100 list. Thank you to everyone who nominated us and to those who continue reading and supporting us.

For those who aren’t familiar with the Blawg 100, every year since 2007, the ABA Journal staffers have assembled a list of their 100 favorite legal blogs for the December issue. Many of these blogs make the list because the staff has found them useful for reasons like tipping them off to potential stories or containing original content, opinion or analysis. Every year the list is full of those who do their profession proud through blogging.

Make the Most of Your Mediation – The Personal Injury Case

Doesn’t it seem like all personal injury cases should settle at mediation? Due to the mountain of available data, there is much more predictability with the outcome of PI cases than with other civil cases. Yet it still happens that PI cases that should settle during mediation end with no settlement and a degree of frustration. Here are five simple things participants can do to increase the odds of closing the file at the first session:

Submit your brief a month in advance. What, a month in advance? Yes, you read that right. And if you, as plaintiff’s lawyer, can submit it six weeks in advance, so much the better. It is no secret that it takes the defense a long time to evaluate and prepare for settlement. The decision of how much money to place on any case is made by many people sitting in many levels. The more notice defendant has of plaintiff’s contentions, the better the carrier can evaluate the claims by circulating plaintiff’s (thorough and well-written) brief through the chain of command. Analogously, if a key piece of evidence – say, the treater’s diagnosis – won’t be ready until the night before the mediation, consider rescheduling the mediation until the evidence can be intelligently considered by all participants.

Lead with a reasonable demand. Yes, you can ask for any number you wish, but is it really in your best interests to start quite so high? There are many problems with starting negotiations at an astronomical number. Chief among them are: (1) The other side won’t take you seriously; (2) Neither will they be worried about trying the case against that number; (3) Your client might fall in love with that big, fat  number; (4) At some point to settle the case you will need to drop precipitously, and you’ll hate doing that; and (5) The parties will spend a lot of time during the precious hours allotted to resolution just getting the parties to a reasonable starting point.  Avoid all these problems by leading off with a reasonable demand. There’s a market for pricing cases, and if you don’t have the retail book, ask an experienced PI lawyer for help.

Prepare your client. Yes, you have attended many mediations, but what about your client? Does she know what will happen during the day? That there will be long periods of time just spent waiting to hear what the other side has to say? That numbers will be exchanged that may seem disappointing and offensive? That she might be asked questions? Does she know what she’s supposed to wear? The more prepared your client is for the experience, the more likely she will be able to participate in it fully. Even though joint sessions are joining the ranks of endangered species, it is still true that one of the most powerful moments in a mediation can be the joint session where the plaintiff is permitted to explain her losses. Prepare her for that by practicing in advance.

Help the mediator help you. One of the ways that mediation works is that parties come to trust and engage in the process. Lawyers sometimes inadvertently prevent their client from doing so. For example, when the first offer is conveyed from the defense, the wise lawyer will say to his client, “This is a solid start. We started high, they started low. No we can talk about how to get to a real number.” This is so much more reassuring to the client than the lawyer who reacts with, “Outrageous! Bad faith! We’re outta here.”

Similarly, there will come a point when the neutral will talk to your client – either plaintiff or adjuster – about the value of the offer or demand and the risks of not settling. Many lawyers feel obligated to jump in and argue. Because your client trusts you, she may think that she should distrust the neutral’s thoughts. Instead, help your client trust the process by permitting the neutral to explain her concerns. If possible, agree with the neutral on some of the risks. You are not abandoning your role as an advocate by doing so – you are helping your client understand the process and make the best decision for herself.

Decide the case for yourself. Perhaps the main area where the defense is most vulnerable is in its risk of “groupthink” – that is, evaluating a case a certain way and then deciding and reaffirming the defense decision without fully considering fresh arguments from the plaintiff. Sure, most PI cases fall into broad and predictable categories, but sometimes plaintiffs come up with something new. How might a defendant driver be liable when plaintiff was passing illegally? It’s easy to reflexively reject a novel claim, especially when everyone on your team is only too eager to agree with that conclusion.  To avoid this mistake, think of what we instruct jurors: “Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury…Do not give up your honest beliefs just because the others think differently.” You don’t want to be hearing a convincing argument for the first time in trial.

So, to your repertoire of tools, add an extra measure of preparation and thoughtfulness. Will we now be able settle all PI cases? Let’s find out.

Importance of Neutrality

Louis Marlin, JAMS mediator and arbitrator

Louis Marlin, JAMS mediator and arbitrator

October 12 kicked off the 2015 ABA Mediation Week. This year’s theme is “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” Lawyers and mediators understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better and by finding ways to get their important interests met while staying true to their values and belief systems.

Following is an interesting perspective that touches on that subject.

Attorneys benefit from a unique educational experience that trains us to look at problems and challenges from all sides. We learn to think like lawyers, being able to examine issues dispassionately, seeking to find solutions for the benefit of our clients no matter what side of a dispute we are on.  In fact, when representing a client, we frequently try and consider what the opposition would do to defeat us as a method of planning our strategy.

However, in the world of litigation, this broader “two-sided” view of issues and disputes, while helpful, is frequently only one tool used by attorneys. Litigators are, by definition, advocates, and when it comes to trials, mediations and arbitrations, their job is to steer the proceeding or discussion to a view of the dispute that puts their client in the most favorable light possible.

Importantly, the ability to view both sides of an issue returns to the fore when a lawyer moves from the position of advocate to becoming a “neutral” – as a judicial officer, arbitrator or mediator. Making this transition – moving back to the mindset of taking a holistic view of a problem – requires a conscious effort to shed the sword of advocacy for the cloak of neutrality. Neutrality after years of advocacy means accepting the challenge of taking a fresh look at issues that are presented and disputes which require resolution.

The task is not a simple one. It requires the effort of distinguishing between the knowledge one has on a subject from the bias one may have for one side or the other. Having recently undertaken this transition myself, I have found the following considerations to be helpful in this process:

  1. Read the mediation or arbitration briefs carefully. Serving as a neutral in connection with a dispute involving an area of law with which the neutral is very familiar invites “skimming” the briefs. This can easily result in having the neutral’s bias creep into the proceedings.
  2. Ask questions. If a party’s position or argument is unclear, it is the neutral’s obligation to seek clarification. In mediations, both sides are entitled to the neutral’s full and complete understanding of their respective positions.
  3. Limit your decision. In regard to trials and arbitrations, a neutral’s decision should be crafted to fall within the four corners of the dispute presented, and no further.
  4. Know your role. While a neutral may well serve the role of trier of fact in an arbitration or trial, that role is much different in a mediation. The neutral must keep foremost in his/her mind that the role of a mediator is to help move the parties to a mutually acceptable resolution, and that taking a hard and fast position for one side or the other will ultimately result in a lack of credibility that will hamper the neutral’s effectiveness.

Actively working to prevent bias from impacting decisions and actions is the key to transitioning from attorney to credible and effective neutral.