ADR class 1

scott e. mollen

sec:(212) 498-6573

office: (212) 592-1505

2 park ave 22nd fl 10016

smollen@herrick.com

grade: paper, arbitration exercises, and class participation. CP and attendance (plus coming to class on time) are very important. 

*** class participation will be huge because mollen definitely does "rough justice" ***

in lieu of office hours, let profs secretary know. is happy to do tele conference, email, or prob face to face at his office. 

final paper guidelines:

1. check the topic with prof. 

2. must have an interview

3. if using for writing requirement, must be a 30 page paper.

topic proposal is due 9/21/10.

paper is due before 1st exam.

to get paper back, include a SASE. 

obstacles and advantages to ADR:
- mediator can be more educated and expert in the field
- social/ psychological benefits
- alternative procedural rules, and less rigid rules
     from the court system
- confidentiality
- clients may be more satisfied with the results
     and more likely to follow the judgment
- don't have to deal with the instability of the jury
- save costs
- save time: client needs may be immediate, and
     the issue may dissipate on the time line of the docket.
- ability to resolve dispute without destroying
     the fundamental relationship between the parties
- avoid establishing precedent/ maintaining flexibility
- alternative, equitable remedies for addressing injuries
- less adversarial nature (can be win-win)
- "custom design" for judgments. in ADR, the parties own the process. you can't do that in the courts. 

n.b. - you can't have binding mediation. you can have binding arbitration.

how long does litigation take? as long as it takes.

why does litigation take so long?

reasons:
- discovery and investigation. state and fed rules say that
     you as the lawyer/ party may not plead until you've done
     the research to make it well founded. this takes lots of time,
     conducting interviews, reviewing and analyzing files and
     correspondence and documents... then
- other party will need time to do the same once served. then
- once the other party has answered, the answer must be
     analyzed and investigated.... then
- an answer to the opposition's motion must be prepared and sent
- the opposition will do a response to the motions you sent
- all this briefing can take at least months...
     and there's still not even an answer yet.
- then, the workloads vary from court to court.
- and even once the motions are on the calendar, there's changes....
- once a motion is made and appears in court,
     you then must wait up to 60 days (or more) for opinion
- so months are used and there's still no answer...
- when a decision finally comes, then the losing party may
     re argue the motion.

n.b. -- don't ever assume that contradiction means that someone
     is lying. in good faith, people have different incentives for
     making their truth in memories. you never know what's
     going to happen.

n.b. -- email/SMS discovery is a big issue and very costly....