Why use alternative dispute resolution (ADR)?
ADR eliminates the uncertainties of presenting a case to a judge or jury. The parties involved design the method of dispute resolution, and choose the ground rules. This combination of flexibility and accommodation greatly speeds the process of resolving disputes.
How do mediation and arbitration differ?
Mediation is a process in which a neutral third party helps the parties to reach a resolution of their dispute, or to narrow the differences between them.
Arbitration is a process in which an arbitrator hears evidence from the parties and makes an award which can be binding and enforced by a court.
Can mediation and arbitration be combined?
Yes, but it is tricky and may not be advisable. Conflicting parties may choose what is sometimes called “binding mediation,” though many professional neutrals (the arbitrator or mediator) do not recommend creating a situation in which one neutral assumes both roles.
- In “med/arb”, with the consent of the parties, the mediator first attempts to help the parties settle their dispute. If this effort proves unsuccessful, the parties agree that the mediator may then act as an arbitrator and render an award. In “arb/med”, the neutral first acts as an arbitrator who, after hearing the evidence, renders an award which is kept secret. The parties then attempt, with the help of the neutral acting as mediator, to settle the case. If they are unsuccessful, the award is revealed and the parties are bound by it.
What is your mediation style?
I focus more on helping the parties with what they need rather than imposing my personal style on them; my professional inclination, however, is midway between a facilitative and an evaluative style.
Do you mediate family law disputes?
No. My practice concentrates primarily in the areas of commercial and employment matters.
How do you charge for mediation or arbitration?
I charge by the hour for all time spent on the case, whether in meetings, hearings, or in time spent conferring with counsel outside of hearings and in study. I do not charge for travel time unless explicitly stated.
For mediations, I usually charge a deposit when the time for the session is reserved equivalent to 10 hours. That covers a normal amount of preparation time and a session of ordinary length. If the session is extraordinarily long, or if there is a great deal of preparation, I will send a billing for the remainder after the session has concluded.
I conduct mediations in many areas, so my hourly rate fluctuates between $395 (for sessions in Santa Barbara ) and $500 (for sessions in Los Angeles and elsewhere.) I do conduct ½ day sessions (for which I charge a deposit equivalent to 5 hours) but only in Santa Barbara or within a 50 mile radius.
What is your arbitration philosophy?
I believe that parties choose arbitration in large part to promote efficiency in dispute resolution while preserving fairness. I tend to manage the process closely to ensure that counsel stay focused since in my experience clients are more satisfied with efficient processes. I particularly scrutinize discovery to be certain that it does not get out of hand, given the type of case and the amount in controversy.
What in your experience is the most common reason cases do not settle at the first mediation session? Lawyers who are unprepared and whose clients are therefore unprepared. When the lawyers don’t know their cases, they can’t give sound advice to their clients. Clients must make a transition from their initial positions to see where their real interests lie in order to move to a settlement that will satisfy those interests. New information, on facts and law, comes out as the session proceeds and can create momentum toward settlement, but if the lawyer and client are not prepared to take advantage of that additional information, the client can have difficulty in settling.
How should a lawyer prepare for mediation?
- Know the law (and bring copies of the key cases to the session.)
- Know the facts that are important to prove and how to establish them, especially if discovery has not proceeded very far.
- Get witness statements or declarations and bring them to the mediation.
- Get jury verdicts and settlements showing numbers in the range you and your client want.
- Decide who needs to attend the session, who needs to be available by phone, and who should stay away.
- Bring a draft settlement agreement to the session.
What do you do to help the lawyers prepare?
I have a premediation phone call in every case to let the lawyers know how I like to set up the mediation and get their ideas as well. I also discuss what I need to receive from them in order to prepare myself. (See my checklist for that phone call, in the Engagement Documents).
I also encourage the lawyers to exchange short pre-mediation briefs, so the opposing parties themselves can read them. If the lawyers wish, they may give me confidential material in a separate letter, too.
How should a client prepare for mediation?
The client should meet with the lawyer, read not only the client’s own mediation brief, but more importantly, the other side’s brief. The client and lawyer should discuss the items the lawyer has gathered to prepare.
For example, if you represent the plaintiff, consider making a pre-mediation settlement demand, but, if you do, make it sufficiently in advance of the session so that the other side can seriously evaluate it.
The mediation process takes time to work, so the client should always prepare to have down time during a mediation. Bring a good book.
How does the mediation session usually proceed?
This is a very flexible process, but usually I talk with the party that arrives first. I view part of my job a being a “coach” to each side, helping to present the party’s viewpoint in a way that will facilitate settlement, rather than inflaming the situation further. Those separate caucuses can last some time. Then, we will go into a joint session, at which usually the lawyers for each side speak, though frequently the clients speak as well. After that, we break into separate caucuses again and, working through lunch, meet privately to develop ideas for resolution.
I do not believe that the best resolutions are reached when parties are exhausted, so I generally do not favor extending the session far into the evening unless real momentum is building. Sometimes, it is better to continue the next day or at another session.
If a case does not settle at the first mediation session, what do you do?
Normally, I schedule a follow up session, if the parties are willing, sometimes after they have done some “homework.” Even if the parties do not want a second session, I follow up with them by phone and/or email (I normally do not charge for this service) until they tell me to stop. In my experience, these efforts are frequently successful in helping parties settle after the session.