Decision Trees

Fit the Forum to the Specific Fuss

The good news today is that there are many different ways to resolve disputes.  Within a generation, the default method has moved from litigation to mediation.  In fact the Director of Texas’s Office of Court Administration recently reported that for the past three years, roughly half of one percent of civil matters ended in a jury trial.  Even within the broad rubric of mediation, a number of different mediator styles have been identified, and others developed.  Since ADR is by definition a consensual process, parties should get what they want.  Like other choices, it’s helpful to know the range of possibilities before making an informed selection.

Some states and administrators ask mediators to declare a mediation style.  Len Riskin proposed his famous “grid” cataloging mediator styles and there is a quick test that helps mediators identify their default style.  See Jeffrey Krivis & Barbara McAdoo, A Style Index for Mediators, 15 Alternatives to the High Cost of Litigation 157 (1997).  But mediation is inherently improvisational.  The mediator and the parties may not fully appreciate at the outset the unique dynamics that will unfold in a particular mediation.  That’s what makes it fun and interesting for the mediator.

So this is a fertile place for theory to inform practice.  We all fall into ruts unless we strive to be life-long learners.  Exposure to other successful practices just adds tools to the mediator’s toolbox.  And as we move through a mediation session, one or more of those tools may be the difference between a durable settlement and impasse.

With party consent, I believe mediators should show up with a full toolbox and be prepared to “roam the style grid.”  One case may call for broad issue formation at the beginning moving toward a more eliciting style that helps parties build models and test them with “what if” questions.  Another case might require a tighter framing from the outset.  It may come as no surprise that I tested near the middle of the style grid and regularly roam from facilitative to evaluative styles and back.  Since I believe pictures can be used to communicate with many people more effectively than words and numbers, I am prone to eliciting information from the parties and their counsel to build rough models that serve as a conversation piece as I elicit more information that “what if” tests those models before their eyes.  Occasionally, and with party consent, it’s helpful to get the parties back together to compare the assumptions that drive different valuations.  That exercise focuses the parties on the remaining problem and works nearly every time.

In deciding which option to use, a groundbreaking article that helped revolutionize dispute resolution is instructive.  In their classic article Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, Professors Sanders and Goldberg focused on (1) achieving the disputants’ goals in making a forum choice and (2) the obstacles that their choice might overcome en route to a deal.  Professor Len Riskin then built his famous two-dimensional mediation styles “grid” on those broad forum choices.  The styles range from facilitating dispute-focused conversations to offering conclusory case evaluations.  Mediators can elicit potential payoffs and probabilities from the parties and objectively build and test outcomes “before their very eyes.” A neutral mediator may elicit “best” and “worst” outcomes and lead parties through scenario assessment and planning that takes the psychological biases we all have into account.

If parties choose not to mediate, they could simply ignore the dispute and then see what happens.  It could get worse or go away.  If it doesn’t go away, the parties could decide to resolve it in the same way they got into their deal – through direct party-to-party negotiations.  Direct negotiation is the most frequently used dispute resolution technique.  The parties retain complete control over the process and solution, if any results.  Alternatively they could choose to use cooperative negotiations or collaborative law. These are related processes in which the parties usually commit in a “participation agreement” that holds off litigation until their collaborative process becomes unsuccessful.  Of course there are the different flavors of mediation and arbitration, and they are discussed below.  And various other tools can be used to compliment mediation.  If the parties stick over a relatively narrow issue, the parties may agree to assemble a mock jury and then loop-back to the mediator once they get improved information from that mock jury.  The same works for private judging, non-binding arbitration, etc.  They can be folded into an integrated problem-solving approach in a constant effort to find durable solutions to seemingly intractable problems.  Here is a decision tree depicting many of the choices parties have.  There are valuable resources listed at the bottom of this section and in the Library.

I. Consensual

1.  Ignore

 

 

Most disputes do not become formalized claims. So some organizations and people simply ignore claims until they become escalated.  Others find that systematically managing conflict in the very early stages is the best way to prevent that escalation.

2. Dispute System Design

Dispute System Design refers to the process of creating an entire routinized system for repetitively handling similar types of disputes.  Many organizations use dispute systems to set up an internal ombudsperson to manage conflict early and use step clauses that progress from there through some form or mediation and on to arbitration or litigation, if necessary.  The design of these systems has become fairly sophisticated and is often aided by dispute resolution professionals.

3. Ombudsperson

An ombudsperson is a neutral or impartial administrator or manager within an institution, who may provide confidential and informal assistance to anyone within that institution in resolving work related concerns, who may serve as counselor, go-between, mediator, fact-finder or upward feedback mechanism, and whose office is located outside ordinary line management (or academic) structures.

4. Direct Negotiation

 

Negotiation is bargaining – it is the process of discussion and give-and-take between two or more disputants, who seek to find a solution to a common problem.

In Direct Negotiation the parties collectively retain complete formal and informal control over the process and its outcome including:

• the ground rules and the agenda
• the selection of the neutral
• the place and timing of the negotiation
• use of their own negotiation styles and strategies
• when and how they communicate, listen and convey reactions
• whether to obtain outside information, comment, or feedback and if so, whether to introduce it
• the decision to end the process at any time
• the ability to discuss and agree upon issues and solutions that need not relate directly to the subject matter of the dispute
• the acceptance of an outcome unless mutually agreed upon

Negotiations can take a competitive or cooperative bent depending on the parties and their negotiators.

5. Deal Mediation

Deal mediation is using mediation skills to help parties make a deal where no dispute is contemplated. Parties still view an agreement as a marriage contract, not a divorce settlement.  The role of the intermediary is not focused just on avoiding disputes. The role is to help the parties cut the best deal possible – one that addresses their underlying (and often undisclosed) interests, not the positions or claims that might come up in a disputed context. The skill sets are wider than those that are required for dispute resolution. In addition to ADR skills, six skills aid deal mediation:

• Fundamental business understanding.
• Structuring business alternatives.
• Managing creative brainstorm sessions.
• Process interpretation.
• Open issue approach.
• Ability to manage scenarios.

6. Settlement Counsel

Settlement Counsel is the use of an attorney (often trained as a mediator) representing a client for the purpose of settlement and not for the purpose of litigation.  Settlement negotiation and litigation are thought to be incompatible mind-sets and therefore should be carried out by different lawyers.  Some support employing settlement counsel for negotiation, while a litigator litigates.  CPR Special Supplement, Analyzing Company ADR Systems Practices Settlement Counsel: Problems With Billable Hours; And More, 22 Alternatives to the High Cost of Litigation 47 (Apr. 2004).

7. Cooperative Negotiations

Cooperative Negotiations are interest-based.  Harvard Professors Roger Fisher and Bill Ury made interest-based bargaining popular with the release of their 1981 best-selling book, Getting to Yes: Negotiating Agreement Without Giving In.  The book appeared on the best-seller lists for years and became a staple in business and legal curricula. The classic approach begins by establishing trust and good will between the negotiators.  Such a positive relationship is not an end in itself nor is it meant to suggest an accommodation in which either side abandons its goals as a gift to the other.  Rather, the relationship enhances the negotiator’s effectiveness in sharing her own interests and learning of her opponent’s underlying interests.  Interests are classically defined as intangible needs and dimensions of the conflict.  Sharing and learning this type of information empowers the participants to explore how the interests of both negotiators can be significantly accomplished through a creative solution.  The cooperative negotiator sees the dispute as a problem to be solved, not a contest to be won.  It becomes formalized when the parties sign a Participation Agreement that often mirrors Collaborative Law, except to the extent that the parties’ lawyers are not required to withdraw if settlement fails during structured talks.

8. Collaborative Law

The collaborative law movement began in 1990 and can be largely attributed to Stuart Webb, a family law practitioner seeking to devise a more family-friendly mechanism to resolve divorce disputes.  Webb’s plan entailed avoiding the courthouse altogether and only representing those clients who chose to actively work together in reaching a settlement.  In those instances where a settlement could not be reached or where the negotiations faltered, Webb voluntarily removed himself from the process and left his client to seek new counsel.  Purists maintain that this disqualification provision must be contained in a formalized Participation Agreement to constitute Collaborative Law.  Formalized Collaborative Negotiations are usually the same procedure without the pre-agreed withdrawal provision.  Collaborative Law has become increasingly popular in commercial cases of late.

9. Facilitation

Facilitation is often used in multi-party disputes that do not fall under the umbrella of mediation confidentiality.  Environmental, large community, and other public disputes are often candidates for facilitated discussion and resolution.

10. Conciliation

Conciliation and mediation are used almost interchangeably now and to the extent that they mean different things, the difference usually turns on the extent of third-party involvement in suggesting ground for resolution.  Conciliation has its roots in international practice, but even there the terms have become virtually analogous.  UNCITRAL defines conciliation as a process whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.

11. Mediation

In Mediative Processes a third party neutral works to facilitate a negotiated settlement between the parties.  The mediator facilitates the negotiations and often evaluates the relative merits of the claims and defenses.  The neutral does not have power to impose a solution or decision – the parties retain ultimate control over the outcome.  The terms of the agreement are limited only by the interests and creativity of the parties and the neutral.  By agreement and permission of the parties, the neutral sets the ground rules and may profoundly affect the order of the proceedings, the parties’ collective and individual analyses, and the general dynamic of the settlement discussion.

a. Transformative

The transformative approach to mediation does not seek immediate resolution of the problem, but rather, seeks the empowerment and mutual recognition of the parties involved.  Professors Baruch Bush and Joe Folger brought transformative mediation to the fore with the publication of The Promise of Mediation in 1994 and it has been widely used by the United States Postal Service’s REDRESS™ mediation program, among many others.  This approach, according to Bush and Folger, avoids the problem of mediator directiveness, which they claim often occurs in problem-solving mediation.

b. Narrative

Narrative mediation is a rather recent phenomenon.  This particular mediation style concerns itself with both the way in which conflict arises, in addition to methods that can be employed to remedy the relationship.  As a practice, “narrative mediation attempts to put aside conflict-laden stories and assist the parties in jointly constructing a new story…that will sustain an ongoing relational dialogue”

c. Insight

Insight Mediation, developed in Canada, is defined as “moments when parties begin to understand enough about each other that they cease regarding each other as a threat to cooperation and begin to believe they can…resolve their differences”

d. Facilitative

Facilitative Mediation is a process in which outcome control remains almost entirely in the hands of the parties and counsel.  The mediator restores communication and helps to create options for resolution by:

• ensuring that all relevant information is exchanged and heard by the parties or confirms that there is a good reason why it isn’t being exchanged
• providing parties the ability to vent
• coaching negotiators on next moves
• helping parties invent settlement options
• transmitting offers and demands
• working to overcome potential impasses

e. Collaborative

There are those who believe that Collaborative Law (or Cooperative Negotiations) is really a form of mediation.  Others point to the fact that Collaborative Law often does not employ a neutral mediator to put it in the run up to mediation on the continuum.  It may be a distinction without a practical difference.

f. Elicitive

Elicitive approaches to mediation seek to draw out different positions, clarify the assumptions underlying remedy requests, and test different outcome scenarios through continued dialogue.  It has elements of facilitative discussion and evaluation, but it uses questions to draw parties through scenarios build on their own assumptions – with “what if” tests during the process.

g. Evaluative

Evaluative Mediation occurs when the mediator creates more structure and injects his or her own view or prediction of the trial outcome.  It is often used for more difficult cases, where the gap between the parties is large, the issues somewhat complex and the stakes high.  The mediator allows the parties to test the reality of their predicted outcomes by:

• working to thoroughly understand the parties’ factual and legal arguments
• providing feedback on the relative merits of claims and defenses
• offering his or her prediction of the outcome in court
• in some circumstances, recommending settlement ranges

h. Evaluatively Directive

When the mediator evaluates and then pushes his or her evaluation, the mediator shifts toward an evaluatively directive form of mediation.  This form of mediation is practiced in the U.S. when mediators implement their evaluative power by either gently encouraging or by assertively pressing parties to move toward or adopt their evaluations.

i. Wisely Directive

In some cultures, disputing parties are accustomed to relying on a “wise” third-party as a source of the “right” answers who will assertively if not aggressively direct them toward a solution.  A wisely directive mediator investigates the dispute, evaluates it, and formulates and promotes solutions based on the wisdom for which he or she was selected.  That wisdom could be informed by local cultural norms, religious values, or the mediator’s age, legal knowledge, or leadership or authoritative position. Parties expect to receive answers and are receptive to, if not desirous of, adopting them.

j. Directive

In directive mediation, mediators tend to downplay the interpersonal interaction of the parties in favor of pushing the parties to reach a solution that the mediator views as good or fair.  A directive mediator will express opinions, make proposals, challenge values, question positions and attempt to steer the parties to his or her solution.

k. Med / Arb

Med-Arb offers parties the ability to participate in a mediation having agreed in advance that if unable to reach a settlement, the process will shift to an arbitration. The neutral:

• can serve as both mediator and arbitrator in an “integrated” process, acting to facilitate negotiations and also making binding decisions on stalemated issues along the way
• in a “separate” process will attempt to achieve a mediated settlement before “switching hats” to decide any unresolved issues
• acts as either the mediator or the arbitrator but not both in a Med/Arb-Opt Out
• makes a binding settlement decision between the final offer or final demand given in a Final Offer Med/Arb

l. Rocket Docket

Rocket Docket programs are frequently designed to provide an expedited means of resolving straightforward disputes involving limited amounts in controversy.  Case submission is simplified since there are no novel legal issues and there is limited, if any, preparation required.  Rocket Docket cases follow a strict three-hour format so that three cases can be scheduled in a day at a reduced rates.

12. Minitrial (Mock Bench Trial)

Mini-Trial is a highly structured, formalized and evaluative mediation process in which the parties cede a great deal of procedural control in order to reframe the dispute from the context of litigation to the context of a business problem.  It requires the participation of non-legal party representatives with settlement authority who sit as a panel with the neutral.  The neutral advisor:

• works closely with the parties before the hearing to facilitate agreement on procedure and resolve disputes
• oversees the panel of senior business officers
• moderates the mini-trial hearing and then provides an evaluation if necessary
• facilitates settlement between the parties after rendering his or her evaluation

13. Summary Jury Trial (Mock Jury)

The Summary Jury Trial is a highly structured, formalized and evaluative mediation process in which a private “jury” is assembled to hear the case. The jury decision is non-binding and often results in “looping back” to mediation to finalize a deal with improved information.

14. Non-Binding Arbitration

Non-Binding Arbitration is a hearing process that looks and feels like arbitration, but is advisory, not binding. The neutral advisor(s):

• sets up and presides over the process
• reviews the factual and legal positions of the parties either through briefs or oral arguments
• evaluates what the likely arbitration outcome might be

15. Early Neutral Evaluation

Neutral Evaluation is a non-binding process in which the parties retain a neutral to provide an evaluation based solely on the merits of the case. The neutral:

• reviews the factual and legal positions of the parties either through briefs or oral arguments
• evaluates what the likely jury outcome might be
• provides his or her view of the likely / fair results
• is not retained to facilitate the parties negotiations

16. Neutral Expert Fact-Finding

Neutral Expert Fact-Finding can be a stand-alone, non-binding process, or it can be part of a larger non-binding process. It is used to help resolve a disputed technical issue. The neutral:

• finds facts and provides analysis after hearing presentations by the parties, and their experts
• acts as a substitute for partisan experts
• can conduct an independent investigation into the technical facts and issues

17. Court Appointed Special Master

Court Appointed Special Masters/Discovery Masters are appointed by sitting judges to assist with disputes that are legally or administratively complex. Discovery masters are selected by the parties rather than appointed. The special master or discovery master:

• assists in designing case settlement options
• may mediate the cases or groups of cases for mass torts
• mediates discovery disputes
• makes rulings on discovery issues that can’t be resolved

II. Adjudicative

In Adjudicative Processes, a third-party neutral is brought in to hear and consider facts and/or arguments presented by the parties, and to render a reasoned, binding decision based upon an agreed standard of legality or fairness. The neutral’s role is to issue a solution for the parties, not to help them reach an agreed-upon solution of their own.

1. Arbitration

Arbitration is a creature of contract that has long been used as an alternative to litigation in commercial and labor disputes.  The parties’ arbitration agreement can provide a very detailed procedure for the arbitrator to follow or provide fewer procedural specifics and incorporate well-established rules (some major rules are in the Library section).  Arbitration allows more procedural flexibility within bounds, offers less formal procedures, and usually involves abbreviated presentations.  By giving the parties flexibility in the design of their proceedings, costs are lower.  That’s not to say that arbitration cannot become “arbigation” when elements of litigation are imported into the arbitration process.  But since arbitration is a creature of contract, the parties can anticipate such tendencies and design a forum to fit their fuss.  There is a move in commercial transactions to develop and follow a blueprint for a Protocol for Business Users of Arbitration.  See Thomas J. Stipanowich, Arbitration and Choice: Taking Charge of the “New Litigation” (Symposium Keynote Presentation), 7 DePaul Business & Commercial Law Journal 401, 404 (2010).

Drafting protocols and specialized arbitration rules give parties the ability to right-size the procedure to the controversy.  Some disputes may warrant multiple arbitrators and trial-like proceedings.  The right case may need expedited relief or appellate panel second-looks.  That can be written into the arbitration agreement and there are rules that would flesh-out those intentions.  But other disputes may need truncated but fair hearings and the finality of an award.  Arbitration allows parties to make these choices themselves (within bounds) and pay or save costs accordingly. The arbitrator(s):

• establishes the ground rules governing an arbitration in the period immediately following the initiation of the arbitration to ensure an expeditious, cost-effective and fair process
• rules on discovery requests and disputes
• determines whether to apply rules of evidence and to what degree
• hears expert witnesses and cross examinations
• reviews briefs, documents and other exhibits
• entertains argument by counsel before rendering a decision

a. Expedited Proceedings

Several administering organizations provide for expedited proceedings and parties often include such a provision in their arbitration agreements.  They can be used to address temporary matters before the final award or as a way to provide quick and cost-effective arbitration in certain classes of claims.

b. Arb /Med

Arb-Med offers arbitrators and parties the ability to switch to mediation during an arbitration proceeding. As with Med-Arb, the neutral:

1. can serve as both arbitrator and mediator in an “integrated” process, acting to make binding decisions  or facilitate negotiations
2. 2. acts as either the arbitrator or the mediator but not both in a Arb/Med-Opt Out
3. c. Bracketed (high – low)

Bracketed Arbitration (“high-low”) occurs when the parties structure an agreement to “bracket” or limit the possible range of outcomes. The parties may agree that the arbitrator:

• will decide only the issue of liability with predetermined sums to be paid by the defendant or plaintiff accordingly
• delivers a verdict on liability and damages while agreeing in advance on minimum and maximum payment sums
• is not told the bracketed range, in effect creating “blind bracketed” arbitration

d. Final Offer (baseball)

In Final Offer Arbitration or Baseball Arbitration the parties each separately submit a “final offer” to the arbitrator. The arbitrator chooses between those final offers based upon the arguments presented.  The arbitrator does not have the latitude to award relief other than one of the two final offers.  It’s called baseball arbitration because it was long used to resolve disputes between baseball players and teams.

e. Appellate Panel

Several arbitration administrators offer the option of an appeal panel to review the arbitrator’s award.  All parties must agree to the process and method of appointment of the arbitrators constituting the appeal panel.  Some believe it cures the problem of the lack of meaningful judicial review and others maintain that it undermines one of the prime reasons for arbitration – finality.

2. Private Judging

Private Judging, a private trial conducted by a neutral, is most similar to a conventional trial in that judgment may be appealed for errors of law, or as against the weight of the evidence.  In jurisdictions that permit this process, the neutral:

• is selected by the parties, often because he or she has the necessary expertise for highly complex or technical issues
• is asked to try the issues in a case and to make findings of law or fact
• enters a decision as a judgment
• offers parties the flexibility to exert some control over the timing of the resolution of their dispute

3. Litigation

In Litigation, the parties have minimal control over process or outcome:

• the court retains ultimate authority, interpreting and applying the rules of civil litigation
• the court sets discovery deadlines, conference dates and trial dates
• the neutral decision-maker is determined by the court
• the rules of trial practice and evidence in the presentation of the case must be followed
• parties are bound to the facts found and decisions made by judge and jury, subject to limited right of appeal
• only narrow forms of remedies are available–an award of money damages or limited injunctive relief

a. Bench Trial

Bench Trials are often less expensive a quicker than traditional jury trials.  As arbitration took on more of the features of litigation (arbigation), bench trials have seen resurgence, especially in jurisdictions where jury waivers are consistently enforceable.

b. Jury Trial

Jury Trials in civil matters are uniquely American and remain the option against which deals are often measured.  They have become so costly that the Director of Texas’s Office of Court Administration recently reported that for the past three years, roughly half of one percent of civil matters ended in a jury trial.

4. Legislation

While the processes above deal with individual claims and controversies, parties often attempt to change the law for broad classes of claims through the legislative process.

CPR, The Conflict Resolution Information Source, available at cpr.crinfo.org/action/browse.jsp?nid=2461.

JAMS, ADR Spectrum: Mediation, Arbitration, available at www.jamsadr.com/adr-spectrum/.

JAMS, ADR Glossary, available at www.jamsadr.com/adr-glossary/.