by Richard L. Hurford,
Richard Hurford Dispute Resolution Services
On August 5, 2016, the Professional Resolution Experts of Michigan (PREMi) orchestrated an ADR program in Traverse City that was simply amazing. The program, which received rave reviews, focused on how litigators and counselors might use current case law and leverage litigation processes to better serve their clients.
The program began with a presentation by PREMi member Lee Hornberger that provided an overview of recent Michigan case law on arbitration agreements, arbitration awards, mediation protocols and the enforcement of mediation agreements. This invaluable update included guidance to litigators on the common pitfalls to avoid when drafting arbitration agreements and settlements achieved during a mediation. Did you know -- In Mediation Litigation Trends: 1999-2003 the authors undertook an initial study of mediation litigation trends from 1999 through 2003 and subsequently supplemented that study based on decisions from 2004 through 2007. The reported data commends the development of at least one “best practice” during mediation: to the extent practicable the parties should be requested to draft and execute a formal settlement agreement before the conclusion of the mediation. The adoption of that “best practice” had the potential of avoiding almost one-half of the over 2,100 post-mediation disputes evaluated by the authors. The attendees were also given Lee’s 35 page summary of significant recent decisions by the Michigan Supreme Court and Michigan Court of Appeals involving arbitration and mediation. As one attendee noted, “what you don’t know can hurt you!”
PREMi member Bob Wright outlined for litigators insightful hints and tools to maximize one’s effectiveness in preparing for and during the mediation process. Included were strategies on how to develop an effective negotiation game plan before the day of the mediation, “best practices” to prepare for the mediation, suggestions on dealing with “hostile” parties, maintaining control of the negotiation process rather than becoming reactive, how to respond to “ridiculous” offers and demands, and working with the mediator to break impasses. Bob’s interactive dialogue with the attendees permitted all to share their wisdom, insights and experiences. No one left the program without a number of practical “take aways” that will augment mediation advocacy skills.
Together with Justice Bridget McCormack, PREMi member Dick Hurford, shared with the audience the concept of “Litigotiation” and how various techniques can be best utilized to serve your clients in the development and implementation of a strategic and cost effective litigation and case management plans. In addition to exploring numerous ADR processes other than mediation and case evaluation, Justice McCormack and Dick Hurford focused on the potential efficacy of the newly approved Summary Jury Trial process and the indications and contraindications for its beneficial use. During robust questioning by the audience, the attendees were treated to Justice McCormack’s invaluable insights on future judicial litigation management trends including the possible evolution of staged and proportionate discovery and a methodology for economically and efficiently dealing with electronic discovery.
The half day seminar ended with a panel discussion of Judges and Justice McCormack that was moderated by PREMi member Toni Raheem. In addition to Justice McCormack, the panel consisted of 13th Circuit Judges Philip E. Rodgers Jr., Thomas G. Power, and Probate Court Judge Melanie D. Stanton. The Justice and Judges participated in a free-wheeling discussion with the attendees that addressed such issues as early ADR, case evaluation practices, the potential benefits of collaborative law, issues involving pro se plaintiffs, and a number of the courts “best practices” including a running summary of all verdicts and important decisions issued in the Circuit Court. The verdict summary report provides counsel with a most helpful tool in the verdict potential of their case. The attendees universally agreed that the forum provided a unique opportunity to engage in a meaningful, relaxed, and most helpful dialogue with litigation thought leaders.
In addition the attendees were provided with a wealth of materials including checklists and forms that could be adopted to serve their needs and those of their clients. These materials can be accessed on the PREMi web site, http://premiadr.com. We hope these materials will be of assistance to litigators in the development and implementation of effective case management plans.
PREMi was most gratified that it was able to provide a valuable and dynamic program to attorneys who practice in the 13th Judicial Circuit. We extend our sincere appreciation and gratitude to Judges Power, Rodgers and Stanton and Justice McCormack for their willingness to share their invaluable time and talent with all the attendees.
Richard Hurford is the President of Richard Hurford Dispute Resolution Services, P.C. He is the past chair of the ADR Section of the Michigan State Bar, and the current chair of the Macomb and Oakland County ADR Committees, Co-Chair of the ADR Section of the Federal Bar Association, and immediate past President of the Southeast Chapter of ACR. He is the co-author of the nationally recognized A Taxonomy of ADR (2015) and a contributor to the Supreme Court Administrative Office’s publication the Michigan Judges Guide to ADR Practice and Procedure (2015).
He is a professional with Professional Resolution Experts of Michigan (PREMi), a Distinguished Fellow in the International Academy of Mediators, and a member of AAJ, DRI, MDTC and ACR. Richard’s web site can be accessed at hurfordresolution.com.
