Commercial Section Workshops
ACR 2011 Annual Conference in San Diego, CA
Session Title: “The Use of Mediation Techniques in Commercial Arbitration to Achieve a Fair and Expeditious Process”
Date and Time of Session: Saturday, October 15 at 9:30 am
Description: Much has been written (mostly critically) about how functions and behaviors ascribed to adjudication processes (such as litigation/arbitration) have permeated the boundaries of non-adversarial processes such as mediation. Some observers have noticed the infiltration of adversarial functions into the mediation process, noting, for example, the growing emphasis on strategic behavior, evaluation of positions, and contentious advocacy. Some have attributed this development to the institution of court-annexed mediation programs, which have brought large numbers of lawyers with adversarial skills and litigation/arbitration expertise into the ADR field. Others have suggested that this development is responsive to party preferences. This migration of functions, tactics, behaviors and culture of one dispute resolution process into another seems to be moving, or is viewed as moving, only in one direction. Our perception, however, is that, as more and more arbitrators are trained in collaborative/problem-solving skills and techniques traditionally associated with the facilitative style and the interest-based model of mediation, the flow can actually take place both ways: arbitrators who are also trained as mediators can utilize the collaborative skills and techniques of mediation, especially to maximize the benefits of the flexibility inherent in the arbitration process. This session will demonstrate the opportunities for arbitrators to use mediation techniques to improve the fairness and cost-effectiveness of the process.
Program Outline: We anticipate developing a rather complex commercial arbitration scenario that would offer multiple opportunities to apply mediation skills and techniques so as to make arbitration a more fair and expeditious process. We would discuss and illustrate through a role-play involving audience members as counsel for the parties, the opportunities to use mediation techniques such as clarifying questions, reframing, brainstorming and initiating proposals in the preliminary conference to achieve consensus on issues such as: the need for additional or more detailed pleadings; the scope and timing of discovery; the need for and timing of motion practice; and the use of stipulations, affidavits, bifurcation and other methods of reducing the scope of the hearing and focusing on truly disputed issues. We would also discuss and illustrate the use of such techniques at the hearing in deciding evidentiary and procedural issues and in questioning witnesses.
Moderator:
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"Introduction and Overview of the Program"
Lisa Renee Pomerantz
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Presenter:
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Michele S. Riley
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