ACR-Hawaii and HSBA ADR Section collaborate in Holding a Roundtable Discussion with the Judges

(One roundtable facilitators summary provided below the highlights)

Next Events

May 13, 2008 Board of Directors Meeting followed by a Membership Meeting featuring a discussion about the similarities and differences between mediation and arbitration (flyer under preparation).

Rountable 1 summary

HSBA ADR Roundtable Regarding Best Practices on ADR

April 24, 2008

Good Practices

·                     In cases involving experts, considering getting the experts to talk to one another to help resolve issues, or get the parties= agreement retain an independent expert to help break impasse on key issues.

·                     In high value cases, use a structured settlement specialist to help reduce the cost of providing payments to meet the plaintiff=s needs, and have that specialist present or available via phone to be provide potential structured offers during the mediation.

·                     Consider use of an apology, which can be transformative, especially where one party takes the position that  AIt=s the principle of the thing@.

·                     Require all decision -makers to be present to hear and participate in the mediation, rather than just being available by phone, where they may act as a buffer/impediment to settlement.

·                     Go into mediation with a typed form of proposed settlement agreement and computer access to create final revisions for the agreement, so all terms will be agreed to and signed off on before any party leaves.

·                     Have the mediator talk to the parties directly if appropriate(with their counsel=s permission) to find out what is driving the party=s position and to develop further ideas for strategies to resolve the case.

·                     For judges who refer cases to mediation, set a return/follow up date to help keep pressure on the parties, and if there is communication between the judge and parties, get the parties= permission first, or limit communication to only the Judge telling the mediator why the case was assigned to mediation and any insights the Judge has that may assist in the mediation.

·                     Assume virtually any case can be mediated, at any point in time, and don=t create assumptions about proper timing or type of cases that can settle.

·                     Continually monitor and track court based programs to help determine what works and to assure proper training and criteria are being used for selection.

Worst Practices

·                     Plenary sessions can be counterproductive in many cases with counsel, who may try to use that time to give their opening arguments in a manner  that drives the parties further apart.

·                     Mediation and settlement conference statements prepared by attorneys tend to give their clients a very biased view of the strength of their cases, and may drive the parties further apart.  Consider getting agreements not to share those documents with clients, or counsel clients about the one-sided nature of those documents.

·                     Many attorneys still do not know how to participate productively in mediation, and it would be useful for attorneys who don=t have prior experience in it, or who find it is not resolving their cases, to get some training in mediation before participating. 

·                     For judges referring a case to mediation, do not ask the parties to go Acompromise@ their case (wrong terminology/attitude), but instead ask they they try to work something out that both of them can agree to live with.

Getting Past Impasse

·                     Do not allow the parties to repeat their same arguments B move on.

·                     Identify critical discovery B schedule discover ASAP if needed, and then regroup. 

·                     When a party says certain discovery is critical before they can mediate or settle, identify what is critical to the party seeking discovery and how that information will affect the case, so the results of discovery can be used to help move mediation forward.

·                     Do not make the mediator=s credibility the centerpiece of the negotiation.

·                     Assist parties in objective evaluation by use of independent experts.

·                     Do not move from facilitative to evaluative mediation until the parties are at impasse, and then it is still good to discuss whether they want to receive evaluative feedback before providing it.

Submitted by Ellen Gobey Carson, facilitator for round table discussion