ADR class 9

opening statement - typical mistakes:
1. race through the opening too quickly. remember that you're dealing with people who have come to you for help, you want to make eye contact and speak deliberately and cover all the topics.
a. remind everyone that he was the mediator selected and that they are co-authors of the process.
b. a few words about my process as a mediator - i'm not a judge or arbitrator and i have no power to mandate any judgments. you won't have a decision handed down from the mountain top here.
c. my job is to help you to resolve your situation yourselves so you will have no need for arb or court.
d. this process is informal. there's no procedural requirements except for common courtesy. and our mediation will be differnt from litigation also, because we will try to move away from the adversarial positions you have to take in court, and see if your real underlying needs can be better met and better served in some way other than a continuing lawsuit.
e. i have no power to decide or annex anything. i can only report to the court that the issue has/not been resolved.
f. we'll begin by asking each side what s/he thinks the case is about and we'll go from there. at some point, we'll break for court recess, and i'll speak to each side independently. when i meet with you, i will help you identify the strenghts and weaknesses of your case as well as the sterngths and weaknesses of the otehr party's case.
g. if you tell me something in a sepaarte session that you want kept confident, you can tell me, just let me know that it must be kept in confidence.
h. since the claimant brought us here, i'll ask him to speak first... or you could ask them to flip a coin, etc.

prof. mollen's checklist:
1. if you want, we can go through together. then we're going to break into separate rooms.
2. we're gonna order lunch in so we don't need extra time. there's facilities down the hall. we want you to be comfortable.
3. i emphasize confidentiality, and anything said to me remains confidential
4. we're going to treat each other with civility and respect and it will be a meaningful discussion.
5. any questions

bitter separation between parties. wife took the 13-year old child to GA. husband wants the child returned. will pay for college but only if in a 2-hr drive from NYC. also is concerned that kid is not doing well in school. wife doesn't want to return the child, she wants favorable property settlement, she wants college unrestricted, she thinks change of environment will adversely affect the kid.

wife.

nothing to submit.

presentation should be like most of class period.

ADR class 5

ADR class 3

knowing how you want to practice

what do you do when you have no merit to the case.
1. if you can survive summary judgment,
2. you still may be sanctioned

what do you do when you have no merit and you want to help someone?
1. look for other factors, such as sympathy or equities
2. sometimes people will settle things even when they don't have to
because people want to seem decent and kind

international rules for arbitration in NYS for situations where
1. scope of discovery: arbitration has less discovery than
litigation, and still is more than typical discovery in many other
coutnries
2. arbitrators are bound to enforce contract and are not allowed to
use general factors such as sympathies and equities
3. don't make assumptions about rules of operation

corp lawyers usually draft contracts in large firms - they're non litigators.
and they draft provisions that are often cut-and-paste.
provisions are often not suited for the people involved.

the paper:
- just google ideas
- who do i interview? get ideas from the articles you read
- talk to mollen after you've done some work on the paper
- no puffery!!

benefits to publicity
generally talk about the lack of confidentiality as a negative,
but publicity can also help to bring discovery, dismissal of
charges, brought witness forward, etc. or publicity can bring
forth capital and support. or it can get the other party to
be more willing to negotiate. but once publicity is out there,
it's out there.

after ADR as the strictest approach, there's arbitration.
parties agree on a neutral, either in a contractual clause or
when a dispute arises. you have the freedom to direct
your needs at arbitration. since you have right to trial,
usually arbitration is not binding.

in addition to arbitration there's private tribunals,
i.e. "rent a judge" -- you agree to hire someone
privately (usually a retired judge) and have a trial before
this party. you can provide that this private judge award
can be appealed, etc. why would you want this when
the tax payers give you a court system?

why use a 20 year employee? they know the company
better than anybody else.

ADR class 2

time - waiting for the appellate process is not always feasible.

expedited resolution is not always appropriate for both parties.
identify the interests of the person who is reluctant to quick resolution.

when people spend more time fighting, they become more adversarial.
ephemeral reactions to the motions, discovery, etc makes parties get
even angrier at each other. there's name-calling and accusations, etc.
and then that's coupled with increasing legal fees, which makes people
feel even more upset and strapped.

what does it cost the litigant to go to court?
- cost of attorney time and fees
- cost of training junior associates
- high fees for partner's time
- time for discovery
- may be too expensive for middle class to litigate effectively
- how do you tell a client that they may be correct, but that the
cost to litigate will exceed the value of the injury?
- option: go to the AG or consumer affairs, if its some kind of consumer fraud
- option: "if this can't be resolved, we have to find a way to manage this"
- have to focus on the client's ability to pay!!

uncertainty of the result: many times people will invest in a litigation
and will think that at the end of the litigation, they will prevail --
but what if that doesn't happen? what if the person is not restored to their
original position? if they had realized they might lose, they might have
made different choices. additionally, many contracts have a
"prevailing party" clause, which means

example:
stiverson v. manhattan -- state housing agency interpreted statute in a certain way,
such that a rent-stabilized building can be handled as luxury-decontrolled, and
rented at fair market rate. no tenant had challenged the interpretation over 17 years.
court of appeals have dissented that the interpretation is contrary to the
plain meaning of the statute, even though there's 17 years of reliance on the wrong
interpretation. the devaluation is approx 4 bill. and investors in this building
include pension funds


conflicts of interests is a growing industry problem.

adversarial approach can have unintended ramifications.
good faith relationships can be poorly affected by adversarial process,
like relationships to your kids, employer/employee relationships,
business relationships like with suppliers,

"best attorney wins" -- perception management that getting the most
expensive/ best known lawyer will give a big advantage

expertise of the judge: should that influence arbitration or not?

adr allows you to hand-pick the judge, which allows you to build into
the arbitration agreement that there's a specific person that you want to
arbitrate the agreement. this is particularly used in labor agreements.
but you can be creative and put provisions for things like
- minimum connections
- expertise of both customer and management side
- knowledge of the current work environment
- agreement to stay late, work at certain hours
- ability to put people into a more comfortable frame of mind
** lack of confidentiality in the courts **
the only limit is what you can get the other side to agree to.

ADR: chapter 3 reading

a. negotiator style

g richard shell, bargaining for advantage: negotiation strategies for reasonable people.
exercise: "i will give a prize of 1k to each of the first 2 people who can pesouade the person sitting opp to get up, come aroudn the table and stand behind his or her chair." what's your response?
- avoidance: successful negotiation can happen by just not coming to the table to bargain
- compromise: each person agrees to share the gains equally between them.
- accommodation: you can inject yourself into a bargaining position
- competitive strategy:
- collaborative/ problem-solving: how can we both get the full value of what we want?

collaborative is often the hardest to implement. but are extremely important to complext negotiations.

personal bargaining styles stem from many inclinations and predispositions, and are influenced by ephemeral changes.

exercise: imagine you are approaching a traffic intersection and another car is nearing the interesction at the same time. what do you do?
- preparation
- exchange information
- proposition
- commitment to action

many people only feel prepared if they know what they want and what they'll settle for. but if we have few fallback positions, we will not be ready to make concessions if needed.... need to be prepared to look for creative solutions

seven keys to preparation:
- interests
- options
- alternatives
- legitimacy
- communication
- relationship
- commitment

"you can negotiate but you must do your research. come armed with info and you'll be rewarded."

c. approaches to negotation
1. adversarial
"reservation point" - the max amount that a buyer will pay (RP)
the RP is also the minimum amount the seller will accept.
the points inbetween are the bargaining zone
if the seller's RP is higher than the buyer's than there's no bargaining zone.
so knowing where the bargaining zone lies is the most critical info to the negotiator to process.

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....