Polsinelli's Gene Commander and Ryan E. Warren presented at the AGC Colorado Association Executive Leadership Academy. The Academy prepares next new leaders for the C-Suite. Polsinelli co-hosted the event with AGC and FMI.

1. Polsinelli PC. In California, Polsinelli LLP
PROACTIVE DISPUTE
RESOLUTION STRATEGIES
Gene Commander, Esq.
Ryan E. Warren, Esq.
Executive Leadership Academy
Associated General Contractors of Colorado
February, 2015

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Program Outline
1. ADR Models
2. Three-legged Stool
3. Mediation Models
4. Administration Tips
5. Mediator Selection Tips
6. Procedural Tips
7. Preparation Tips

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When Faced With A Claim
1. Immediately develop objective summary of factual and legal issues at core of
dispute.
2. ID all critical records and information that parties can exchange or obtain from
other project participants to understand each other's key claims and defenses.
3. Establish reasonable negotiating goals and milestones.
4. Identify/address foreseeable obstacles to reach the negotiating milestones.
5. Determine sequence/schedule for reaching negotiating milestones and
resolution.
6. At each step, engage resources as soon as possible to help with resolution -
opposing party's senior executives, your consultants, your attorneys, mediators
and/or arbitrators.
7. Estimate costs for each negotiating milestone, then budget for those costs.
8. Refine the negotiating strategy as the process evolves. Do this over and over.
9. Listen carefully to and seriously consider recommendations from experienced,
well-informed neutrals (i.e., mediators) and keep open mind about the
appropriate result, regardless of benefits that might be obtained by other parties
in the dispute. Lose emotion.

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ADR Models
Initial Negotiations (company execs v. attorneys)
Mediation
– Contractual Process
– Nonbinding
Arbitration
– Contractual Process
– Binding
– Limited Appeal
Litigation
– Mechanic’s Lien Foreclosure
– Declaratory Judgment
Insurance Coverage Dispute

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Don’t Lose Control and Money
+
+-
CONTROL
COST
KNOWLEDGE
Attorney
Involved
Investigation
Completed
Arbitrator,
Judge, Jury
involved
Project Team
Involved

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Mediation Models – Creature of Contract
Traditional
– Facilitative
– Evaluative
Dispute Resolution Board
Mediation to Arbitration
– Potential Conflicts of Interest
– Mediation/Last Offer Arbitration
Benefits
– Influence Over Outcome
– Flexibility/Creativity
– Informative
– Cost-Effective
– Confidentiality

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Mediation Administration Tips –
Creature of Contract
Administrators
– American Arbitration Association (AAA) - Nonprofit
– Private – For Profit
Denver – Judicial Arbitrator Group (JAG)
National – Judicial Arbitration and Mediation Services
(JAMS)
Individuals
Locale
Judicial Stay
Cost Sharing – No Prevailing Party

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Mediator Selection Tips
Mediator Selection Process
– AAA - Appointment
– Private
JAG - Varies
JAMS - Varies
Individuals - Selection

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Mediator Selection Tips
Mediator Qualifications
– AAA Mediation Panel Criteria
10 years senior level business or
professional experience
Handled at least 5 mediation cases
24 hours of mediation skills training
Leadership, fairness and impartiality
recognized by peers
Standardized resumes at www.adr.org

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Mediator Selection Tips
Mediator Background Check
Mediator Interview
Familiarity with Opposing Counsel or Party
– Pros
Confidence in Mediator
Persuasiveness of Mediator
– Cons
Negative Impact on Your Perceptions?

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Procedural Tips
Mediator Disclosures
– AAA
Reasonable Inquiry
Potential Conflicts
Presumptions of Bias
Timeliness
Financial Arrangements
– Private
JAG - None
JAMS – None
Individuals – Varies

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Procedural Tips
Preliminary Conference – have one!
– Review Nature/Status of Dispute
– Identify Interested Parties
– Identify Insurance/Surety Interests
Additional Named Insureds
Waiver of Subrogation
Reservation of Rights
Denial of Coverage
– Gain Familiarity with mediator
– Influence mediator?

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Procedural Tips
Assess:
– Status of Prior Settlement Negotiations
– Need for Step Mediation
Particularly Sensitive or Complex
Issues/Personalities
–Stabilizers/Destabilizers
Attorneys
Parties’ Representatives
Insurance/Surety Representatives
Expert Witnesses
– Need for Statement of Claims

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Procedural Tips
Assess:
– Need for Exchange of Records
– Need for Confidential Settlement Statements
– Need for Opening Statements
Pros – Efficiency
Cons - Destabilizers
– Need for Joint Session
– Need for Attendance
Settlement Authority
Person(s) Most Knowledgeable

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Preparation Tips
Confirm Goals
Manage Expectations
– No Lines Drawn in the Sand
– Willingness to Listen and Reconsider
Strengths/Weaknesses
– Willingness to Compromise
Interaction with Mediator – Do’s/Don’ts

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Don’t Lose Control and Money
CONTROL
COST
KNOWLEDGE+
+
TIME
Attorney
Involved
Investigation
Completed
Arbitrator,
Judge, Jury
involved
Project Team
Involved
TIME

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Contact Information
Polsinelli PC
www.polsinelli.com
1515 Wynkoop, Suite 600
Denver, CO 80202
303.572.9300
***
Gene Commander, Esq.
gcommander@polsinelli.com
***
Ryan Warren, Esq.
rwarren@polsinelli.com

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About Polsinelli
Polsinelli, a national law firm ranked among the Am Law 100 with over 740
attorneys located in 19 offices, deliberately seeks constant improvement in all
that we do. At its inception more than forty years ago, the firm established a
culture of openness and entrepreneurship that still pervades today. As the
fastest growing U.S. law firm for the past six years as ranked by The American
Lawyer*, the firm’s growth has been fueled by the recruitment of like-minded
attorneys from top law firms across the country.
Polsinelli attorneys successfully build enduring client relationships by providing
practical legal counsel infused with business insight, and with a passion for
assisting General Counsel and CEOs in achieving their objectives. The firm
focuses on healthcare, financial services, real estate, life sciences and
technology, and energy and business litigation, and has depth of experience in
100 service areas and 70 industries.
*The American Lawyer 2013 and 2014 reports

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material provided herein is general and is not intended to be legal
advice. Nothing herein should be relied upon or used without consulting
a lawyer to consider your specific circumstances, possible changes to
applicable laws, rules and regulations and other legal issues. Receipt of
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Polsinelli is very proud of the results we obtain for our clients, but you
should know that past results do not guarantee future results; that
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