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Yesterday, Today and Tomorrow: ADR in Review

Yesterday, Today and Tomorrow: ADR in Review

Source: The Recorder
Date: October 27, 2014

Hon. Lynn Duryee (Ret.)

Resolution Centers


October 27, 2014 daily at www.therecorder .com LAW BUSINESS TECHNOLOGY BUSINESS TECHNOLOGY LAW TECHNOLOGY LAW BUSINESS RECORDER Hon. Lynn Duryee (Ret.) Y es, judicial settlement conferences existed last century, and what fright- ful experiences they were. Jittery lawyers were separately summoned into unwelcoming judge’ s chambers while litigants languished anxiously in the hall, excluded from high-level discussions about their case. Omniscient judges wasted not a moment discussing legal arguments or parties’ interests; instead they used the allot- ted 10 minutes to bludgeon the lawyer with horror stories about juries and verdicts and all the ways the case could and would be lost at trial. Ultimately, the judge would tell the lawyer how the case should resolve and would order him to go forth and obtain the client’s consent. Judges routinely scheduled six such settlement conferences in a single afternoon, and in this way they did settle many cases. The Trial Court Delay Reduction Act struck like lightning in 1986, and suddenly the courts – not the lawyers! – were managing civil cases. Have the parties been served, has an answer been filed, is discovery occurring, will the case be ready for trial in 12 months, and, hey, what about this thing called ADR? Practically overnight, “ ADR” became the term on every lawyer’s lips, and what it mostly meant then was “judicial arbitration” – a one-day pre- view of the evidence before an attentive col- league who, more often than not, issued a well-reasoned award. But as mediation began to take hold, many arbitrators dispensed with the pesky rules of evidence and started talk- ing informally to participants. Visionaries studied and taught mediation, and within a few years, civil litigators embraced the oppor- tunity to settle cases with neutral colleagues, thus dodging significant litigation expenses. Yesterday, Today and Tomorrow: ADR in Review Practically overnight, ‘ADR’ became the term on every lawyer’s lips, and what it mostly meant then was ‘ judicial arbitration’ – a one-day preview of the evidence before an attentive colleague who, more often than not, issued a well-reasoned award. Hon. Lynn Duryee (ret) is a neutral with JAMS at its San Francisco Resolution Center. She serves as a mediator, arbitrator and referee in disputes across multiple practice areas. Prior to joining JAMS in March, she spent 21 years as a Trial Court Judge, Supervising Civil Judge and Supervising Criminal Judge to JAMS. ADR PLAYBOOK 2014As private mediation gained in popular- ity and effectiveness, courts took notice. Forward-thinking courts partnered with skilled neutrals to create mediation pro- grams for early, out-of-court settlements and to improve the courts’ Mandatory Set- tlement Conference programs. Experienced neutrals modeled effective settlement tech- niques for untrained judges. Some courts took the plunge and formed settlement con- ference departments, headed by capable judges working alone or with volunteer neu- trals. By 2000, it was unthinkable that a civ- il case would go to trial without some effort at dispute resolution. Mediation has evolved in the last 20 years, as styles and tools have come in and out of fashion. Joint sessions, once considered the gold standard for convening a mediation, are not used very often anymore. The Me- diator’s Number, once the magic bullet for settling the impossible case, is now used as infrequently as a pay phone. Today’s parties often negotiate in brackets. Tomorrow? Brackets may seem clumsy and dated, re- placed by the newest-new mediation app. Skilled mediators – and users of their ser- vices, for that matter – are constantly search- ing for new and better ways to help dispu- tants achieve more satisfying outcomes. One trend is towards psychological heal- ing. In private mediation settings, as well as in court settlement programs, psychologists are joining judges and lawyers to assist in the process. The goal is to have better listen- ing, deeper understanding and a resolution more profound than “an end to the lawsuit. ” For many years, the offering of an apology has been instrumental in settling an emo- tional case; now, some mediators are taking the next step and working with embattled parties on the concept of forgiveness. These mediators coach clients on the process of forgiveness and provide them with a path to release the difficult feelings of the past in order to enable them to move forward with a clean slate. Another trend in ADR is “mandatory” me- diation. While it has existed since 1981 for child-custody disputes, it is relatively new to the civil scene. Real estate contracts, partner- ship agreements and construction contracts often call for mandatory mediation prior to initiating litigation. The failure to participate in mediation may prevent the party from re- covering otherwise recoverable attorney’s fees. It can be tricky to treat a voluntary pro- cess as mandatory and lawyers are some- times nervous about pre-filing mandatory mediation because they have not had a chance to conduct discovery. However, par- ties who achieve settlement before filing, re- port that while they didn’t know everything about both sides of the case, they knew enough to make an intelligent decision. In Sonoma County and elsewhere, me- diation is used to resolve contentious dis- covery disputes. In 2008, as part of an effort to reduce the judges’ backlogs of Law & Mo- tion matters, a consortium of lawyers and judges developed the Discovery Facilitator Program, Sonoma Local Rule 4.14. This pro- gram allows litigants to have their discovery disputes resolved with the help of an expe- rienced and volunteer neutral. Parties can see the Discovery Facilitator before or after their discovery motion is filed. Before the program went into place, the judges’ calen- dars were packed with time-consuming dis- covery motions. Now, Sonoma judges report that they hear no more than a handful of discovery motions each year. After decades of decreasing in popularity, arbitration is back. Many plaintiff’s lawyers are electing arbitration over mediation be- cause of perceived frustration with their op- ponent’s failure to bring decision-makers to the table. With arbitration, the plaintiff’s lawyer can put on his case before a neutral and obtain a viewpoint on the value of the case. Even if the other side doesn’t put on a defense or files for trial de novo, a thought- ful arbitration award can be helpful down the line when the decision-maker is ready to make a settlement offer. Finally, judicial standards have changed to keep up with the times. Judicial settle- ment conferences today bear little resem- blance to those scary proceedings of yester- year . They are now overseen by trained judg- es and neutrals who devote significant amounts of time to the process. Parties are included in the discussions, and most of the day is devoted to listening to the litigants. As of January 1, 2013, the Canon of Ethics for judges relating to settlement conferenc- es was amended to read: “ At all times during such resolution efforts, a judge shall remain impartial and shall not engage in conduct that may reasonably be perceived as coer- cive. ” It’s official! Bludgeoning, which never seemed like a great option, is not permitted. In any event, good neutrals don’t need it – they can help the parties reach the finish line without any bloodshed at all. RECORDER Reprinted with permission from the October 27, 2014 edition of THE RECORDER © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 501-11-14-01

October 27, 2014

daily at www.therecorder.com

LAW BUSINESS TECHNOLOGY

BUSINESS TECHNOLOGY LAW

TECHNOLOGY LAW BUSINESS

RECORDER

Y

Ho n. Lynn Duryee (Ret.) es, judicial settlement conferences

existed last century, and what frightful

experiences they were. Jittery

lawyers were separately summoned

into unwelcoming judge's chambers

while litigants languished anxiously in the

hall, excluded from high-level discussions

about their case. Omniscient judges wasted

not a moment discussing legal arguments or

parties' interests; instead they used the allotted

10 minutes to bludgeon the lawyer with

horror stories about juries and verdicts and

all the ways the case could and would be lost

at trial. Ultimately, the judge would tell the

lawyer how the case should resolve and would

order him to go forth and obtain the client's

consent. Judges routinely scheduled six such

settlement conferences in a single afternoon,

and in this way they did settle many cases.

The Trial Court Delay Reduction Act struck

like lightning in 1986, and suddenly the courts

– not the lawyers! – were managing civil cases.

Have the parties been served, has an answer

been filed, is discovery occurring, will the

case be ready for trial in 12 months, and, hey,

what about this thing called ADR? Practically

overnight, "ADR" became the term on every

lawyer's lips, and what it mostly meant then

was "judicial arbitration" – a one-day preview

of the evidence before an attentive colleague

who, more often than not, issued a

well-reasoned award. But as mediation began

to take hold, many arbitrators dispensed with

the pesky rules of evidence and started talking

informally to participants. Visionaries

studied and taught mediation, and within a

few years, civil litigators embraced the opportunity

to settle cases with neutral colleagues,

thus dodging significant litigation expenses.

Yesterday, Today and Tomorrow:

ADR in Review

Practically overnight, ‘ADR' became the term on every lawyer's lips,

and what it mostly meant then was ‘ judicial arbitration' – a one-day

preview of the evidence before an attentive colleague who, more

often than not, issued a well-reasoned award.

Hon. Lynn Duryee (ret) is a neutral with JAMS at its

San Francisco Resolution Center. She serves as a

mediator, arbitrator and referee in disputes across

multiple practice areas. Prior to joining JAMS in March,

she spent 21 years as a Trial Court Judge, Supervising

Civil Judge and Supervising Criminal Judge to JAMS.

ADR

PLAYBOOK

2014

As private mediation gained in popularity

and effectiveness, courts took notice.

Forward-thinking courts partnered with

skilled neutrals to create mediation programs

for early, out-of-court settlements

and to improve the courts' Mandatory Settlement

Conference programs. Experienced

neutrals modeled effective settlement techniques

for untrained judges. Some courts

took the plunge and formed settlement conference

departments, headed by capable

judges working alone or with volunteer neutrals.

By 2000, it was unthinkable that a civil

case would go to trial without some effort

at dispute resolution.

Mediation has evolved in the last 20 years,

as styles and tools have come in and out of

fashion. Joint sessions, once considered the

gold standard for convening a mediation,

are not used very often anymore. The Mediator's

Number, once the magic bullet for

settling the impossible case, is now used as

infrequently as a pay phone. Today's parties

often negotiate in brackets. Tomorrow?

Brackets may seem clumsy and dated, replaced

by the newest-new mediation app.

Skilled mediators – and users of their services,

for that matter – are constantly searching

for new and better ways to help disputants

achieve more satisfying outcomes.

One trend is towards psychological healing.

In private mediation settings, as well as

in court settlement programs, psychologists

are joining judges and lawyers to assist in

the process. The goal is to have better listening,

deeper understanding and a resolution

more profound than "an end to the lawsuit."

For many years, the offering of an apology

has been instrumental in settling an emotional

case; now, some mediators are taking

the next step and working with embattled

parties on the concept of forgiveness. These

mediators coach clients on the process of

forgiveness and provide them with a path to

release the difficult feelings of the past in

order to enable them to move forward with

a clean slate.

Another trend in ADR is "mandatory" mediation.

While it has existed since 1981 for

child-custody disputes, it is relatively new to

the civil scene. Real estate contracts, partnership

agreements and construction contracts

often call for mandatory mediation prior to

initiating litigation. The failure to participate

in mediation may prevent the party from recovering

otherwise recoverable attorney's

fees. It can be tricky to treat a voluntary process

as mandatory and lawyers are sometimes

nervous about pre-filing mandatory

mediation because they have not had a

chance to conduct discovery. However, parties

who achieve settlement before filing, report

that while they didn't know everything

about both sides of the case, they knew

enough to make an intelligent decision.

In Sonoma County and elsewhere, mediation

is used to resolve contentious discovery

disputes. In 2008, as part of an effort

to reduce the judges' backlogs of Law & Motion

matters, a consortium of lawyers and

judges developed the Discovery Facilitator

Program, Sonoma Local Rule 4.14. This program

allows litigants to have their discovery

disputes resolved with the help of an experienced

and volunteer neutral. Parties can

see the Discovery Facilitator before or after

their discovery motion is filed. Before the

program went into place, the judges' calendars

were packed with time-consuming discovery

motions. Now, Sonoma judges report

that they hear no more than a handful of

discovery motions each year.

After decades of decreasing in popularity,

arbitration is back. Many plaintiff 's lawyers

are electing arbitration over mediation because

of perceived frustration with their opponent's

failure to bring decision-makers to

the table. With arbitration, the plaintiff 's

lawyer can put on his case before a neutral

and obtain a viewpoint on the value of the

case. Even if the other side doesn't put on a

defense or files for trial de novo, a thoughtful

arbitration award can be helpful down

the line when the decision-maker is ready

to make a settlement offer.

Finally, judicial standards have changed

to keep up with the times. Judicial settlement

conferences today bear little resemblance

to those scary proceedings of yesteryear.

They are now overseen by trained judges

and neutrals who devote significant

amounts of time to the process. Parties are

included in the discussions, and most of the

day is devoted to listening to the litigants.

As of January 1, 2013, the Canon of Ethics

for judges relating to settlement conferences

was amended to read: "At all times during

such resolution efforts, a judge shall remain

impartial and shall not engage in conduct

that may reasonably be perceived as coercive."

It's official! Bludgeoning, which never

seemed like a great option, is not permitted.

In any event, good neutrals don't need it –

they can help the parties reach the finish line

without any bloodshed at all.

RECORDER

Reprinted with permission from the October 27, 2014 edition

of THE RECORDER © 2014 ALM Media Properties, LLC.

All rights reserved. Further duplication without permission

is prohibited. For information, contact 877-257-3382 or