1. ALTERNATE DISPUTEALTERNATE DISPUTE
RESOLUTIONRESOLUTION
(What it Really Means to You and Your Risk
Pool)
ROB CUTBIRTH, Esq.
135 Main Street, 7th Floor, San Francisco, CA 94105
(415) 617-2235 -- Robert.Cutbirth@TuckerEllis.com
SAMANTHA TISDALE, Esq.
515 South Flower Street, 42nd
Floor, Los Angeles, CA 90071
(213) 430-3220 – Samantha.Tisdale@TuckerEllis.com

2. WHAT IS ADR?
Alternate Dispute Resolution includes
– Mediation — Arbitration (Binding and
– Binding Mediation non-Binding “mini-trials”)
– Early Neutral Evaluations
– Judicially Supervised Settlement Conferences
That can be pursued
– Before Litigation (voluntarily or by agreement)
– During Litigation (often required by court rules)
– As an Alternative to Litigation (voluntarily or by agreement)

3. What is the Purpose Voluntary ADR?
WHEN ITS VOLUNTARY:
– TO FIND A SAFE WAY TO DISCUSS SETTLEMENT
“Mediation” and “Settlement” Privileges, or Agreement for
ADR, Prevent the Use of Disclosed Information
– TO FIND A WAY TO OPEN SETTLEMENT DISCUSSIONS
Having a Third Party Manage the Discussions Creates an
Opportunity for Dialogue that Might Not Otherwise Exist
– TO OBTAIN THE OBJECTIVE VIEWPOINT
Whether its Entrenched Client, or The Overly Vested Counsel
an Objective Viewpoint by a Respected Third Party
can Bridge Impasses and Lead to Successful Resolution

4. – TO AVOID THE “YOU FIRST” DILEMMA
When Counsel or the Parties are afraid to open a dialogue out
of fear that it is a sign of weakness
– TO AVOID THE COSTS OF LITIGATION
When done right, it’s a Faster, Cheaper Way to Reach
Resolution Before Extended Attorneys’ Fees are Incurred and
the Parties Become Entrenched in their Views
When set up correctly, costs can be reduced by:
•Reduced “Discovery,”
•Reduced “Law and Motion,”
•Reduced Trial Costs
You may be paying the Mediator/Arbitrator, but the process can
still be expedited and less than daily trial costs

5. – Handled More “Privately”
• Not “Confidential,” but “Private”
• Information/Outcomes Can Still be Obtained Through
Public Records Act Requests
– Leads to More “Thoughtful” Decisions
• You are Paying the Mediator/Arbitrator
• Passion/Prejudice has less of an Influence

6. Do You Want Arbitration …?
(Still and “Adversarial Process”)
• You have to pick the right arbitrator
• Almost No Rights of Appeal [But, you can
change this result]
• Better (?) Control of Proceedings
• Better Control of Costs
• Most Effective When:
– Clear Contractual Standards
– Not in a Bureaucratic Setting
– A Single Arbitrator is chosen,
rather than “panels”

7. Do You Want Mediation?
(It’s a Conciliation Process)
• You have to pick the right Mediator
• Do you need: Tough/Rough, “Hand
Holder,” “Legal Scholar,”
• Do you need: One-Time/Multi-Session
Mediator
• Most Effective When:
– The Parties Really Want to
Resolve the Dispute, but need help
to get there
– Someone just needs to be able to
“tell their story,” and then settle

8. Do You Want to Request or Await a Judicially
Supervised Settlement Conference?
• It’s Free … But Almost Always You have
Already Incurred the Costs of Litigation
• You Probably Cannot Determine the Judge or
Assigned Pro-Tem Attorneys
• One-Time/Multi-Session – Getting “Time”
Before the Court May be Difficult
• If it’s your Trial Judge …..
• Judges Are Often Better at “Courtroom
Management,” not Dispute Resolution
• You May Need them if you Require an
“Enforceable” Change in Conduct

9. What are the Risks/Benefits
of Non-Binding ADR?
• You Incur Costs, Without a Guarantee of Benefit
– But, you may obtain a “surprising” settlement
• You/Your Client Hear Too Many Positive/Negative Comments and
Become Further Polarized
– You/Your Client Hears New Facts that May Better Support
Future Settlement Negotiations
• The Other Party is not Truly Interested in a “Reasonable”
Settlement Further Polarizing the Parties
– You can Often Get Past “Posturing” and Get to the “Real”
Decision makers

10. What are the Risks/Benefits
of Binding ADR
• Early Resolution (if you set it up right)
– Court Budget Cuts Are Extending Judicial Resolution by Years
– But Sometimes You Want a Delay ….
• Relationship Protection
– Faster, Limited, Thoughtful Resolutions can Protect
Relationships
– But Sometimes the Relationship is Already Too Damaged
• Mistakes by the Arbitrator
– Potential for “Dislike” of Clients or Case – One person/One Bias
– Mistakes of Law (Although you can contract around this result)
– But, many parties want only “binding” arbitration, with no
review, to ensure true “finality”

11. Picking the Mediator/Arbitrator
• Who do You Know?
– A Personal Relationship/History of Success is Often Best
• What Style Do you Need?
– “Hard” “Empathetic” “Wise Old Guy”
• What is their Specialty?
– Do they Know the Subject Matter? Is it Necessary?
• Are They Dedicated and Successful?
– Do they get claims resolved? Will they Work Through
“Difficult” Claims or do they “Give Up”
_____________________
Who will the Other Side Accept?

12. Preparing to Make it Meaningful
• What do you Need to Know?
– Sometimes you can ask the Mediator/Arbitrator for Help Gaining
Information or an Advance Exchange of Briefs
• What do you Need to say?
– How Are You Going to Present Your Case?
– How are You Going to Respond to their Arguments?
• What are you Afraid to present?
– What Information do you not want to Discuss?
– What happens if it gets raised?
• What are You Looking for the Mediator/Arbitrator to Say?
– Especially with Mediations, “ex parte” communications in advance of
the Mediation and Greatly Enhance the Chances for Success

13. In any dispute arising in any manner from the formation
or performance of this Agreement, the parties shall first
use their best efforts to discuss and resolve the
dispute. If they are unable to reach a resolution of the
dispute after thirty (30) days of good faith effort, either
party may give notice to the other party of a request for
arbitration. The arbitration will be conducted by a
mutually agreeable arbitrator, or an arbitrator appointed
by a court of competent jurisdiction if the parties cannot
agree, who shall have a primary business location within
__________________.
Potential Contractual Arbitration Clause

14. The arbitrator shall conduct the arbitration in the most
expeditious and cost effective manner possible, with all
substantive and procedural aspects of the arbitration governed
by [State’s] law except that the arbitrator shall be empowered
and directed to reduce, limit, or control discovery, the
retention or use of experts or consultants, and law and motion
and other proceedings in order to promote and expedite the
cost-effective and expeditious resolution of the case.
[There shall be no right of appeal or review, except for
declaratory relief proceeding asserting that arbitrator has, or
plans to, use a clearly erroneous legal standard, for which an
expedited declaratory or injunctive relief proceeding may be
instituted to correct such an error.]

15. The arbitrator may award reasonable attorney’s fees
and costs to the prevailing party if the arbitrator
determines that the opposing party, with respect to a
claim, part of a claim, or a procedural motion or
proceeding, did not proceed in good faith or on a
reasonable belief in the factual and legal validity of its
position.
Notwithstanding these provisions, as may be necessary
to protect its rights and interests, the Parties may seek
immediate intervention from a Court of competent
jurisdiction in order to seek a temporary restraining
order or injunctive relief order, which the parties agree
to have heard on an expedited basis.

16. Potential Risk Pool/Member Clause for
Coverage Agreements
[Risk Pool] or a Covered Party may request that the
[Governing Board] determine whether a coverage denial
should be withdrawn, altered, or affirmed, or [an assigned
modification/risk factor] or [or an assigned contribution
payment] by modified. The request for review must be
promptly made in a writing submitted to the [Executive
Director]. The request will be placed on the agenda for the
next available [Governing Board] meeting. The involved
Covered Party must participate in the meeting and present a
reasonable and good faith basis for its requested action. The
[Governing Board] shall then determine whether to grant the
request, in whole or in part, and on such terms as are just and
reasonable under all circumstances.

17. If the Covered Party does not accept an adverse
determination by the [Governing Board], within 10
days after the [Governing Board’s] determination, the
Covered Party may submit a written demand to the
[Executive Director] for arbitration. ….
Compliance with this dispute resolution process,
coupled with the Covered Party’s compliance with all
other Conditions of Coverage, is a condition precedent
to any right of monetary recovery or benefit under this
[Coverage Agreement].