JAMS Supports the ABA’s Planned Early Dispute Resolution Project

Planned Early Dispute Resolution (PEDR) User Guide

Planned Early Dispute Resolution (PEDR) User Guide

In the interest of saving time and money, the ABA Dispute Resolution has launched a user guide to help parties and lawyers develop a new process to resolve disputes.

Back in 2011, the ABA Dispute Resolution Section appointed the Planned Early Dispute Resolution Task Force to promote Planned Early Dispute Resolution (PEDR) by lawyers and clients and to take advantage of ADR services and neutrals at the earliest appropriate time. PEDR is a general approach that enables parties and their lawyers to resolve disputes as early as reasonably possible.

PEDR aims to satisfy parties’ interests, reduce litigation risks and save time and money. It’s a major change from traditional approaches to dispute resolution for many businesses and their law firms, not merely a shift of procedures. PEDR is a framework for using a variety of dispute resolution processes, including direct negotiation, standing neutrals, mediation, arbitration and hybrid processes tailored for particular disputes. Although some businesses and their lawyers use a comprehensive PEDR approach, most probably do not.

The Task Force recently developed a user guide to help parties and lawyers develop and use a PEDR process tailored to the needs of each party. The guide focuses particularly on the needs of businesses, though some of the material can be adapted for lawyers representing other types of clients. To review the user guide, please click here.

This guide provides a great framework to help resolve disputes as early as possible and JAMS was happy to be one of the sponsors.

A comprehensive PEDR system includes:

  • General plans for preventing and resolving disputes
  • Early warning systems for issues that may lead to disputes
  • Identification and monitoring of disputes
  • Early case assessments to determine the best way to manage each dispute
  • Efficient and effective procedures for handling and resolving disputes

The Task Force also developed PowerPoint presentations and a short podcast, which you can find here.

The Importance of Culture in Conflict Resolution

JAMS had the honor of supporting the 2013 ABA Mediation Week in October. The theme for the 2013 ABA Mediation Week was “Making a World of Difference.” JAMS partnered with local bar associations, community organizations and law schools throughout the week and held events in Atlanta, Los Angeles, London, Miami, New York, San Francisco and other locations.

NY Mediation Week 2013

JAMS Mediator Bob Davidson, Esq. served as the moderator for the NY Mediation Week event. The panelists included JAMS Mediator Margaret L. Shaw, Esq., Rutgers Anthropology professor Aldo Civico, Columbia University Academic Director Beth Fisher-Yoshida and NYPD Detective and Mediator Jeff Thompson.

At a Mediation Week panel discussion in New York, a panel of seasoned ADR professionals, including two JAMS mediators, a doctor of Anthropology, a New York Police detective and an organizational consultant, explored the role culture plays in conflict resolution.

The definition of culture cannot be limited to nationality, language or race. Culture must be thought of as how we define ourselves as human beings; how we create and give meaning to our experiences by constantly spinning a web of significance from our own environments. In the context of resolving a conflict, it is important to understand the environment in which and from which those involved are from. Why is this conflict important to them? Is it about money? Is it about the land? An apology, perhaps? One of the panelists shared an example of a high-stakes mediation where one of the parties simply needed an apology and nothing further. In this example, the culture that existed was so unexpected that unless the need for an apology was explicitly expressed, the mediation could have run the risk of intractability. Furthermore, it must be understood that culture is flexible, and continuously changing. We can think of our own country, for example, and just how different the culture is today than even a decade ago.

With this notion that culture is always present and changing, the discussion went on to point out the importance of “normalizing” the situation (or mediation). In the midst of a heated negotiation, it is the job of the mediator to harness the energy and guide the various styles of communication towards a more normalized playing field. Each party comes to the table with his or her own style of communication – or culture – and so ensues the mediator’s efforts to understand and raise awareness of that.

One of the key aspects of culture is non-verbal communication and the role it plays in conflict resolution. Another panelist emphasized the many non-verbal actions that can impact reactions during mediation. Crossing the arms, sitting back in a chair or a handshake are considered “micro-cues,” which has the ability to instill or diminish trust instantly, and not always intentionally.

As we think about culture on a small scale, we must also consider the larger and more international aspect of culture. When mediating internationally in places where the culture and style of communication varies from that of America’s, what should we be aware of? Some cultures speak slowly with frequent pauses, which can change the pace at which the mediation progresses. Then, there’s the significance of tea and coffee breaks; sometimes more than caffeine is gained when everyone stops and the environment shifts. Further still, there is importance of observation and active listening. It is often forgotten in American culture just how meaningful it is to stop and just listen.

Information Friday: Some News to End Your Week

Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!

Mediation Key to Other Disputes, Why not the Shutdown?

Mediation Urged in Maryland Black Colleges Lawsuit

SCOTUS Set To Hear At Least One Arbitration Case This Term

Spreading ADR Best Practices around the World

By Chris Poole

Weinstein Fellows

Chris Poole and Judge Weinstein meet with three members of the 2013 Weinstein JAMS Fellows class.

Although many countries have not developed formal ADR processes as part of their legal systems, dispute resolution practices have been in place practically since the beginning of time. These practices have taken on many forms in different societies and they continue to evolve and mature. While many of us think of ADR only in a legal and commercial context, some of the most effective systems in the world exist in some of the least developed economies. Systems like conciliation, negotiation and adjudication are already built into many community structures.

In more developed nations there has been a lot of progress over the past several years aimed at increasing the use of mediation and arbitration in legal disputes. This is often driven by inefficient court systems or perhaps just to reduce the cost of disputes. In some countries the time it takes to get to court and achieve a litigated resolution can stretch over many years and when settlements are reached outside of court, the courts are not always willing or able to enforce them. Consumers in many countries don’t have access to alternatives to long and sometimes expensive legal proceedings.

While governmental bodies in the European Union, India, Singapore and elsewhere continue to use their influence to make ADR more accessible and attractive in settling disputes, the JAMS Foundation has taken a more creative approach. Through its Weinstein JAMS International Fellowship program, the foundation has brought more than 50 individuals from 44 countries to the U.S. since 2009 to learn more about the best practices in the American ADR system so that they can return to their home countries to “spread the word.” Judge Weinstein conceived of and funded the Fellowship Program to provide opportunities for ADR professionals from throughout the world to learn more about dispute resolution in the United States. Now in its fifth year, the current class of 2013 includes 11 Fellows from various countries including Egypt, Mexico, Iran, Israel, Afghanistan and Turkey.

These individuals come from all walks of life. Some are judges, many are lawyers and others just want to pursue a life of dispute resolution. Their goals may be to improve the efficiency in their home court system, set up a commercial ADR business or – in the case of one former Fellow from Bhutan, to “educate communities of the existence of our traditional dispute resolution system known as Nangkha Nangdrik.” Each of these individuals function as a sort of “Johnny Appleseed” to spread the word of conflict resolution and to promote more effective practices in their home countries.

Recently, Judge Weinstein and the Foundation partnered together to continue administering the Fellowship program. The funding provided by Judge Weinstein and the JAMS Foundation will provide a minimum of $6 million over the next 20 years. By that time, hundreds of Fellows from scores of countries will potentially have done more to promote ADR around the world than any regulation or law. It is a refreshing and inspiring approach.