Mediation: How and why to use ADR first to try to resolve lawsuits and disputes.

© Copyright 2015 Thomas F. Meyer and 4Disputes, Inc. All rights reserved
Mediation Exchange
ADR

Mediation Exchange
Index
ADR
• What are the different ways to resolve disputes?
• How often is some form of alternate dispute resolution used
to settle disputes?
• How did ADR start and why?
• What is the most widely used forms of ADR?
• What are the roles and responsibilities of paralegals and
legal assistants to facilitate ADR?
• What the future holds for ADR – technology, new and wider
applications.

Mediation Exchange
According to 2014 Census,
318,857,056 are people living
across the U.S.
Over 48,000,000 new civil lawsuits
filed across the U.S. every year.
19,893,297 (6%) population in Florida
3,000,000 new civil lawsuits every year

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$43,000 to $122,000

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$43,000 to $122,000
48 million new civil lawsuits filed every year.
$4.8 trillion dollars of legal fees
and court costs.

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95% of civil lawsuits across the United
States never get to trial.
About 45,600,000 cases every year are
left to be resolved out of court using ADR

How do people resolve disputes?
Comparing ADR Options

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Comparing ADR Options
$ $$$ $$$$$$$

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• ARBITRATION
• Revised Uniform Arbitration Act in one form or another has
been adopted throughout the United States.
• The Federal Arbitration Act (FAA), codifies the federal policy
of enforcing applicable arbitration agreements within
coverage of the law.
• MEDIATION
• Community Justice Movements – grassroots programs for the
common man formed in contract to what organizers felt was
elitist, court systems.
• For “relationship” disputes – family and labor.
• Institutionalization within the court system and throughout
state regulations and statutes.
Brief History of Arbitration and Mediation

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Mediation Arbitration
Type of Resolution Agreement Adjudication
Requirements to resolve
dispute in your favor
Negotiation Laws to support case
Sufficient evidence
Role of 3rd Party Promote communications
and negotiations
Decision maker
Publicity NO - Confidential YES
Time to complete One day or less varies
What is enforceable Confidentiality and
settlement agreement
Decision (usually)
Cost $ $$$$$$
Appealable Rare Usually

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Almost half the people who file
lawsuits later change their mind
and voluntarily dismiss their cases
before anything is decided.
ON SECOND THOUGHT..
Arguments for Pre-Suit ADR

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“The courts of this country should not be the
places where resolution of disputes begins. They
should be the places where the disputes end
after alternative methods of resolving disputes
have been considered and tried.”
US Supreme Court Justice Sandra Day ’Connor
GIVE YOURSELF OPTIONS
Arguments for Pre-Suit ADR

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“…mediation plays a vital role in the success and growth of the General Electric
Company…..Mediation is a critical tool as we face the dual challenges of
expanding our business in a global environment, and an ever-present focus on
keeping risks and costs under control. For this reason, it is my belief that GE
cannot afford NOT to use mediation….
…A willingness to mediate is not a sign of weakness. To the contrary, it shows
respect for your business partner; that you value the other’s side views and
relationship; that you are willing to listen, and to engage in a principled
dialogue rooted in the facts, law, and a clear-eyed appraisal of probabilities
that is designed to find a solution that meets both of your needs. It is aimed at
restoring harmony, rather than perpetuating conflict….
Excerpts from a speech to the Singapore Mediation Lecture 2014 presented by
Bradford A. Berenson, Vice President and Senior Counsel for Litigation and Legal
Policy for General Electric.
Case for Mediation

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Why does mediation work?
• Because adjudication (lawsuits and
arbitration) is just too expensive and usually
don’t resolve (end) the situation.
• Because its confidential.
• Because it’s a three vs two dimensional
process which adds a trained neutral to
manage communications and negotiations.

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Legal Assistant / Paralegals’ Role
Find and Select a Mediator
Mediation Agreement
Preparing the Parties for Mediation
Preparing the Mediator

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Find a Mediator – What Lawyers Want Most

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Find a Mediator – State Regulations Differ
• Statewide Certification of Mediators
• Statewide Ethical Standards
• Statewide Grievance Process
• State ADR Office

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Statewide Statewide Statewide State
Certification of Neutrals Ethical Standards Grievance Process ADR Office
35% 65% 35% 35%
Alaska NO NO NO NO
Arizona NO NO NO NO
Arkansas YES YES YES YES
California NO YES YES NO
Colorado NO YES NO YES
Florida YES YES YES YES
Iowa NO YES NO NO
Louisiana NO NO NO NO
Maryland NO YES NO YES
Michigan NO YES NO YES
Minnesota NO YES YES NO
Mississippi NO YES NO NO
Missouri NO NO NO NO
Nevada YES NO NO NO
New York YES NO NO YES
Oklahoma YES YES YES NO
South Carolina YES YES YES NO
South Dakota NO YES NO NO
Tennessee YES YES YES YES
Texas NO NO NO NO
Virginia YES YES YES YES
Washington NO YES NO NO
Wyoming NO NO NO NO
(23 different states)

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Find a Mediator - Style & Personality

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Mediation Agreement – Key Provisions
• Time & Date
• Confidentiality
• Case Summary Requirements
• Fees and Costs
• Hourly rate
• Cancelation fees
• Minimum earned fees
• Travel fees
• Pre-mediation preparation fees
• Payment due at or prior to mediation
• Joint / Several liability of law firm and
party to pay mediation fees
• NO SUCCESS FEES ALLOWED

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Preparing the Parties to Mediate
• Buy-in to the process
• Manage expectations
• Establish keys facts, figures ,
settlement priorities
• Come with settlement authority

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Preparing the Mediator
“Priming the Pump..”
• Pre-mediation call
• Personality profiles
• Case summary
• Key pleadings, discovery

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What the future holds for ADR…
Mediation
ODR
Adjudication

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