'New Frontier' of ADR principles to be explored

By Paul Janczewski

Legal News

Mediation or arbitration? A mediator or an arbitrator?

These questions may have left lawyers and their clients, both on the plaintiffs and defendants side, searching for the right answers in how best to tackle their disputes.

But recently, the answer may be, just use both forms of alternative dispute resolution (ADR).

And a training session, called "Med/Arb: The New Frontier in ADR" will be held Thursday, Oct. 27 at the Cooley Law School's Auburn Hills campus to explain the process, provide insights, and answer questions about utilizing this method.

The program will run from 8:30 a.m. to 5:30 p.m., costs $245, and includes materials, luncheon and refreshments. It will be conducted by Professional Resolution Experts of Michigan (PREMi), a Detroit-area association of legal professionals with many years of experience in dispute resolution.

"We wanted to host this program because it focuses on some cutting-edge concepts in ADR, and because the PREMi group was kind enough to open the program up to our students," said Auburn Hills Dean John Nussbaumer.

According to a PREMi news release, ADR has become an important option for parties in a dispute because of the time and money associated with litigation. PREMi wants to draw attention to a particular ADR approach that may offer substantial benefits over other methods and techniques, the release said.

Faculty for the event will include PREMi mediators, arbitrators and attorneys like Gene Esshaki, Jon Kingsepp, Paul Monicatti, Matt Schlegel and lead trainer Martin Weisman.

The featured lunch speaker will be Doug Van Epps, director of the Office of Dispute Resolution for the Michigan Supreme Court, who will talk briefly on the impact of court consolidation efforts on mediation practice, touch on topics and subject matter of a recent statewide study of case evaluation and mediation that was requested by the state Supreme Court, and proposed revisions to Michigan's Standards of Conduct for Mediators.

"The event is a culmination of a number of different dialogues occurring around the state to talk about expanding the tool kit that that mediators have that parties can use to resolve their disputes," he said.

ADR is an "umbrella term" for a number of processes, including case evaluation, mediation and arbitration, used in dispute resolution, or resolving a case without going to trial, Van Epps said.

"But this program is designed to talk about how mediation and arbitration fit together if the parties want to use this kind of process," he said.

Van Epps, an expert in ADR, said the process of this program basically allows a mediator to, at some point, become the arbitrator.

For instance, parties in a lawsuit who are unable to resolve their differences may agree to mediation, and a mediator. If that does not resolve all the issues, that same person may also become an arbitrator, and decide the issues in a binding or non-binding way. The parties would have to stipulate to certain aspects of the process voluntarily before starting this type of resolution. And if the matter still cannot be resolved, they can always take it before a judge and a jury.

Van Epps said the engagement letter all parties would have to agree upon before taking this step would be crucial "so that everybody goes into it fully informed."

And he said there needs to be ethical considerations ironed out beforehand "as you switch hats from being a totally-neutral mediator to becoming an arbitrator."

"How does that transition take place, and what does that dialogue sound like," Van Epps said. "They call it the new frontier, but actually this process has been around for quite some time. I think what's new about it is a new recognition that this process is available, and parties can use this tool if they really want to."

Reliable statistics show that only two percent of civil cases actually go to trial; 98 percent of matters are settled through negotiations, or dismissed through some other legal form. Other reasons for using some form of ADR is to save time, money and aggravation of expensive and lengthy litigation in court.

There is also a clogged court system, bogged down by cases, fewer resources, fewer employees and the uncertainty of a trial to consider. And studies have shown that both parties in a lawsuit that ends up in court are happy with the results. There is a push to get the parties involved and let them be a part of the solution to their problem, with the help of mediators and arbitrators.

Van Epps said using the same person as mediator and arbitrator has benefits because that person would have a greater understanding of the issues involved in the dispute. If the mediator can resolve some of the issues, the arbitrator with authority to resolve the rest of the case avoids the additional time and expense of a trial.

According to Donna Craig, chair of the State Bar of Michigan's ADR Section, and one of PREMi's resolution experts, the combination of mediator and arbitrator can be an effective tool.

"When the parties to a lawsuit decide that it's time to explore settlement, Med/Arb allows them to engage in mediation, and if they can't reach an agreement, the matter automatically proceeds to binding arbitration," she said in the news release.

"Compared to courtroom litigation, the process offers flexibility, dramatically lower costs, a much shorter timeframe, and a guaranteed result--if mediation doesn't settle the case, the arbitration will."

William Weber Jr., executive director of PREMi, agrees. Although all parties would enter into a contract beforehand, "one way or another, the matter will get resolved," he said.

"The case is removed from the court system, and this saves court costs and reduces the legal fees for the parties."

The program is endorsed by the State Court Administrators Office as qualifying for continuing education credit for attorneys about useful alternatives to litigation. Weber said a court rule requiring attorneys on the court's list of approved mediators to obtain eight hours of advanced mediation training every two years would be met by attending this training session.

Weber said those who attend the program will learn about drafting contracts containing the Med/Arb language, cases and statutes will be explained, and a session on role playing with presenters and attendees will give them an opportunity to see who the process works. They will also learn how to recognize and address ethical issues that can arise, and the faculty will share their personal experiences and techniques.

The program will also benefit attorneys who are not usually in ADR roles, but help them use these tools while practicing in their own areas of litigation, whether it is business, commercial, employment and family law, and how to better serve their clients needs.

Van Epps said his office endorses the program, and said those involved from PREMi "are real excellent people to have involved in the program."

Anyone interested in attending or obtaining more information may contact Weber at (248) 644-0077, or email him at execdirector@premi.us.

Published: Tue, Oct 18, 2011