Norma C. Izzo Jennings, Strouss & Salmon, PLC One E. Washington Street, Suite 1900 Phoenix, Arizona...
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Transcript of Norma C. Izzo Jennings, Strouss & Salmon, PLC One E. Washington Street, Suite 1900 Phoenix, Arizona...
Norma C. Izzo
Jennings, Strouss & Salmon, PLC
One E. Washington Street, Suite 1900
Phoenix, Arizona 85004-2554
(480) 495-2748
Alternative Dispute ResolutionEffective Solutions for Disputes
“I was never ruined but twice: once when I lost a lawsuit, and
once when I won.”Voltaire
The Senate TableA short exercise
Different Methods of Solving the Problem
• Third Party Decider – Limited Options• Alex or Morgan
• Party Directed Process – Infinite Options• Common conference room with shared table• Physically move the table from office to office• Donate the table to Historical Society• Burn the table
Types of ADR Processes
Negotiation Collaborative Law
Cooperative Law
Mediation Arbitration
Court-connected Contractual
ADR TechniquesAdversarial
Party Control
Preventative Unassisted Third Party Assistance
Third Party Decision Making
Litigation
•Joint Planning
•Negotiation •Mediation •Moderated Settlement Conference
•Arbitration•Mini-trial
•Court trial
Advantages of ADR
• Preserves relationships• Provides durable resolution of disputes• Preserves confidentiality• Avoids establishing legal precedents• Interested parties have more control over the process
• Parties• Attorneys• Management
Principles Underlying ADR
• Prevention is the first goal• Speedy, direct resolution• Conflicts should be dealt with at the most informal level of
dispute resolution possible• Interest based• Right based• Power based
Trends
• Costs of litigation are increasing• Legal expertise is in demand, expensive and access is
limited• Most states across the US have instituted Ethical
Guidelines for Mediators and State ADR Acts• Judges are referring cases to mediation• 10% or less of lawsuits filed are actually resolved by a
judge or jury verdict• Even when “you know you’re RIGHT,” ADR still proves
beneficial• Beneficial for value-based relationships• High level of receptivity due to time and cost savings
When is ADR Appropriate?Situation ADR – NO ADR - YES
Need to set precedent X N/A
Need to establish a significant policy X N/A
Existing policy impact on outcomes High Limitations
Minimal limitations
Involvement of third party in dispute Third Party Disputants Only
A full or public record Public ConfidentialParties need a reality check or a party needs to “vent N/A Yes
Need for continued relationship between the parties No Yes
Criminality or fraud is involved Yes No
Mediation
“Mediation is a decision-making process in which the parties are assisted by a third
party, the mediator, who attempts to improve the process and assist the parties
in reaching an outcome to which all can assent.”
Laurence Boulle,
Mediation: Principles, Process, Practice (1996)
Process
• Expands conversation• Focuses on interests• Identifies common interests• Results in mutually satisfactory solutions• Maintains control of outcomes• Documents results in writing; signed by
parties involved
Value/Benefits
• No perfect contracts• Defines and facilitates mutual agreement for dispute
resolution process• Saves time and anguish• Enables parties to maintain control of outcomes• Maintains/Improves relationships• Results are in writing and requires agreement by
parties involved• Reduces court cases and related costs
Process Used
• Negotiation protocols• Explore respective interests• Generate options for mutual gain• Identify appropriate standards• Discuss risks associated with alternatives to
agreement• Decision makers & their attorneys meet to reach
agreement• Document agreement
Hepworth, Joseph M., Joint Self Mediation, Arizona ADR Forum Winter 2004 Issue, January 2004