Alternative Dispute Resolution (ADR) is a system of processes designed
to assist parties in resolving their disputes economically and more
quickly than the traditional court system. Its value lies in reducing
the time, cost and uncertainty in the civil justice system. The key
to achieving successful results in ADR is preparation. The following
represents the basic steps for an attorney to prepare for a mediation
hearing.
Step 1
CHOOSE THE RIGHT ADR PROCESS
The various ADR processes have their good and bad points, and some are
better suited to certain situations than others. Here, in a nutshell,
are the most common:
- MEDIATION A private, voluntary process in which an impartial
person facilitates communication between the parties to promote a mutually
agreeable settlement.
- JUDICIAL SETTLEMENT CONFERENCE A neutral individual,
usually a retired judge, listens to an abbreviated presentation of the
case and renders an advisory opinion on factual or legal issues, as
well as damages.
- MED/ARB Parties agree to mediate with a stipulation
that any issues not settled will be resolved by binding arbitration.
- ARBITRATION An adversarial process in which the disputants
select a neutral third person to listen to evidence and render an award.
Can be either binding or non-binding, and may involve "high-low"
limits.
Step 2
UNDERSTAND THE RULES AND GUIDELINES OF THE MEDIATION PROCESS.
At this stage you want to make sure that everyone understands the rules
of engagement. By taking the lead in doing this, you will avoid problems
later.
- CONFIRM AGREEMENT TO THE HEARING AND COSTS
INVOLVED
The written Agreement to Mediate sets forth the procedures for the
hearing and who is responsible for the costs. The agreement can be
designed to fit your needs. However, since mediation is non-binding
and can be terminated at any time, the agreement is normally flexible
so that the parties can control their own destiny. The main components
of the agreement include confidentiality, cost and selection of the
mediator.
- CONFIDENTIALITY Make sure the written agreement is
executed by all parties confirming the confidentiality of all information
learned during the process, and that the information cannot be used
later against someone in court. (The rules of evidence in some states
may not provide adequate protection). During the hearing, the mediator
will get your permission before disclosing information you revealed
in a private session to the other side.
- FORMALITIES AND INFORMALITIES Usually a hearing is
informal,
although each mediator has his or her own style. Ask the mediator about
his/her style or approach in advance of the hearing or at the beginning
of the session. Mediators vary in their insistence on following formal
evidence rules. Determine what or whether the mediator has any preference
in how you should present your side of the case. Be sure that everyone
with authority to settle is present.
Step 3
CREATE A CASE ROAD MAP
As with a full-blown court case, you need to plan your preparation.
Do not let the informality of the procedure lull you into something
less.
- IDENTIFY THE ISSUES IN DISPUTE Make a written list of
what you consider are the critical issues of the controversy. This
will allow you to focus the negotiation on those issues, and assist
in your objective evaluation of the case.
- DO A "CRITICAL INFORMATION ANALYSIS" Make
sure you have all the information you need regarding liability and
damages before the hearing. If legal research is involved, bring copies
of appropriate research to the hearing to share with the mediator.
- ANALYZE HOW YOU WOULD TRY THE CASE Evaluate the
strengths
and weaknesses of the case from an objective perspective. What verdict
would a jury likely return in the case, or what conclusions would
a judge make. Consider what your realistic expectations are, based
on criteria that can be supported by the evidence. This allows for
a balanced approach to the case, rather than a subjective evaluation.
- PLAN YOUR PRESENTATION Consider what information
about your interests and the facts of the case you want to disclose
to the mediator, and what information you want to disclose to the
opposing side. Usually, full disclosure to the mediator helps facilitate
a successful settlement.
- PREPARE A SIMPLE CASE SUMMARY Also known as a
"position"
statement or brief, this is your opportunity to outline the facts
of the case, issues in dispute, damages and other factors. Consider
the value in providing a confidential statement to the mediator which
includes your thoughts on what criteria you will use to determine
when an agreement proposed is fair, how you think the other party
realistically views their chances of success, and what you think the
other party views as a fair outcome for both sides.
Step 4
DEVELOP A NEGOTIATION STRATEGY
Although the mediator will meet with the other side to communicate offers
and counter-offers, you should have a clear idea of how you want the
negotiation process to proceed. You should also consider how to make
your proposals palatable to the other side.
- IDENTIFY THE CURRENT NEGOTIATING POSITION OF THE
PARTIES
Do a mental review of the negotiation activities conducted to date so
you know where to begin, or where the opposing party might perceive
where you will begin. This is a good opportunity to remind yourself
of your common goals.
- DETERMINE "WANTS" AND "NEEDS"
Often
referred to as "interests," these are the silent movers
that motivate people to change their "positions" in a negotiation.
Your position is something you decided upon, while your interest is
what caused you to decide.
- CONSIDER "WHAT'S AT STAKE" Objectively evaluate
your case through information obtained through litigation, or independent,
verifiable criteria such as jury verdicts.
- CREATE FAVORABLE PERCEPTIONS Negotiation is a series
of communications in which the parties attempt to alter each other's
perceptions. To be successful, you must be able to manage the information
received by the other side. Do this by listening actively, respecting
the other side's claim, posing arguments, making proposals and offering
alternatives.
- DEVELOP OPTIONS FOR MUTUAL GAIN Consider whether the
settlement options available are preferable to proceeding to trial.
This requires a cost analysis of settling at mediation versus going
to trial, as well as close reflection on what options are available
to the other side.
Step 5
OBTAIN AUTHORITY TO SETTLE
Be prepared to come to the table ready to negotiate. That means having
the financial ability to settle the dispute with adequate reserves in
place. Meet in advance with whoever might need to be consulted about
the prospect of an immediate settlement (attorney, wife, husband, business
associate, or other necessary person).
Step 6
DETERMINE WHICH PEOPLE WILL ATTEND THE HEARING AND WHAT ROLE
EACH WILL
PLAY
- PLAINTIFF(S)
- ATTORNEY(S)
- DEFENDANTS
- INSURANCE REPRESENTATIVES
Step 7
PRE-MEDIATION PREPARATION
Basic preparation steps include the following:
- Consider what you are going to disclose both in pre-mediation and
during the mediation.
- Use the mediator. In private, preliminary telephone conversations
before the hearing, talk with the mediator about your presentation
and approach to the case, what information you and the other side
need to know in order to evaluate settlement options.
- Anticipate what story you will tell during the opening session of
the mediation and rehearse it; and
- Organize Documents. Have copies of documents, photos or other writings
available before the hearing begins.
Step 8
OPENING STATEMENTS
Three simple rules for your opening statement:
- BE SIMPLE, CONCISE AND CLEAR Tell a short story in plain
words.
- DON'T WAIVE YOUR RIGHT TO AN OPENING STATEMENT
- TALK ABOUT YOUR SIDE, NOT THEIRS
Step 9
MAKE IT EASY TO REACH AGREEMENT
Throughout the process, and even before it begins, you should think about
what it takes to make it easy to reach agreement. Steps include:
- Cultivating a sense of mental detachment. Take yourself out of the
negotiations playing field and insert the dispute in your place. This
allows you to talk about the issues in dispute, rather than getting
bogged down in personality games.
- Meeting the other side's needs. You can better understand your opponent's
needs by listening actively, acknowledging and paraphrasing their arguments.
Express your views without provocation. This is an effective tool to
"disarm" your opponent while understanding their point of
view.
- Problem Solving. This is the time to recast what your opponent says
in a form that directs attention back to the problem of satisfying both
side's interests. Ask "what" and "how" questions
to move toward a solution. Sometimes asking "why" will cause
your opponent to be defensive.
- Considering the consequences. Ask reality testing questions such that
your opposition will understand what will happen if agreement is not
reached.
- Bridging the gap. Reach agreement by helping your opponent save face.
Try to satisfy unmet needs and involve your opponent in the process.
Don't rush into the agreement, it will fall into place naturally.
Step 10
REACHING AGREEMENT
After all of the hard work that you have done to reach agreement, take
a few final steps to make sure that there are no disappointments:
- Put the agreement in writing. Don't wait -- do it immediately upon
reaching agreement.
- Make sure the parties can perform the agreement; and congratulate
each other. You deserve it.