Mediation Arbitration Specialist

What Advocates Want In An Arbitrator

With the rise in the use of arbitration in the commercial setting, it has become increasingly important for arbitrators to conduct the arbitration proceeding economically and efficiently. Generally , in a commercial arbitration , the advocate is looking for an arbitrator who will control and actively manage the process from start to finish. Even when the parties are cooperating with one another, the arbitrator will have to make decisions in order to keep the process moving along. It is important for the arbitrator to establish the ground rules early on in the process. That way the advocates know what is expected of them and how to behave. Well informed, active management is a critical component of the service than an arbitrator can deliver. More and more, advocates want managerial arbitrators. To learn about the tools that arbitrators can use to manage the process ICLE's  10th Annual Advanced Negotiation & Dispute Resolution Institute to be held at the St John's Conference Center, Plymouth, Michigan is a good place to start.

The January 26th seminar on Med/Arb was a big success. The discussion and materials exchanged were effective in communicating the value of med/arb. It is anticipated that this conference will be offered again in the future. This was followed up by my testifying before the Michigan Senate Judiciary Committee in support of the adoption of the Revised Uniform Arbitration Act on January 31st. We are cautiously optimistic that this will pass the committee and be reported to the Senate floor before the end of this month. I urge you all to write your State Senators and support passage of Senate Bill 903. Here are the links that you can use to review the provisions of the Act.They are Senate Bills 901 902 903. See links below:

http://www.legislature.mi.gov/ (S(l3llom55azxfwf55jxgxk445))/mileg.aspx?page=getObject&objectName=2012-SB-0901
http://www.legislature.mi.gov/ (S(l3llom55azxfwf55jxgxk445))/mileg.aspx?page=getobject&objectname=2012-SB-0902
http://www.legislature.mi.gov/ (S(l3llom55azxfwf55jxgxk445))/mileg.aspx?page=getobject&objectname=2012-SB-0903

On January 26th I will be the lead trainer for Professional Resolution Experts of Michigan ( PREMi) 's conference on Med/Arb. The program is designed for ADR providers as well as users. Learn about the pros and cons of med/arb and how it can benefit the user by shortening the time line as well as decreasing costs, yet still have a fair hearing. For further information see the PREMi web site at www.premi.us

A survey and analysis was recently conducted by Rand Institute For Civil Justice to survey corporate counsel's and other end users perspectives on the benefits of arbitration compared to litigation, the factors that discourage or encourage them to use arbitration, and the experiences with arbitration. The results indicated that most believe arbitration is, at least, somewhat better than litigation, saves time compared to litigation, and saves money compared to litigation. The results also indicated that the most important factors encouraging the use of arbitration is avoiding excessive or emotionally driven jury awards, control over the decision makers qualifications and expertise, and confidentiality of the process. The negatives that were surfaced included the widely held belief that arbitrators tend to "split the baby" and the limitations on the right to appeal. On whole this survey and analysis supports the use of arbitration in the commercial setting and this will only become stronger as arbitrators become more managerial, and advocates more acclimated to the process.

MED/ARB - A TIME AND COST EFFECTIVE HYBRID FOR DISPUTE RESOLUTION by Martin C. Weisman

While there are many different forms of alternative dispute resolution, the concept of med/arb is one that is gaining in its use. It involves the combination of private voluntary dispute resolution mediation with a dispute resolution process where the parties agree in writing to submit the dispute for resolution to a neutral third-party arbitrator for, generally, a final and binding decision. The differences between these two ADR processes are quite clear. In mediation, which is private and voluntary, the mediator, who is acceptable to all parties, assists the parties in identifying issues of mutual concern, develops options for resolving those issues, and finding resolutions which are acceptable to the parties. Mediation is non-binding. In arbitration, however, the parties present proofs and arguments to the arbitrator who then determines the facts and decrees an outcome. The parties to arbitration control the process. There is usually one arbitrator or panel of three arbitrators and often the arbitrator or arbitrators have special expertise appropriate for the subject matter of the dispute. The arbitration process only addresses those disputes which the arbitrator has been given the power to resolve and this authority can be given by contract, order of a court of competent jurisdiction or legislative mandate.
Med/Arb combines the mediation and arbitration processes as a means to avoid the increased cost and difficulty of court litigation and, for that matter, even arbitration. This process begins with a neutral third-party facilitating settlement discussions as a mediator. In instances of irresolvable impasse, the neutral third-party then becomes an arbitrator, conducts an arbitration and renders an award.
This process can be efficient, can provide the parties with the best of both types of ADR processes, with a guarantee of closure, while maintaining fairness. Oftentimes, counsel for the parties like this approach because it allows someone else to give "bad news" to their clients. Of course there are also problems with the use of this format. Ethical issues arising out of caucus communications and confidentiality, the parties' perception of impartiality of both the mediator and the arbitrator, and the tendency to have a more restrained mediation process because of inhibitions of the parties to be openly candid are just a few of the issues. The benefits and burdens of med/arb must be weighed by the parties in each situation when determining whether or not to use this process. There are several variations of the process including arb/med which begins with the parties presenting their case to the neutral third-party arbitrator who renders a decision, which is not revealed, and then the parties commence a standard mediation facilitated by the same person. If they are able to resolve their issues, the arbitration award is discarded. If the parties are unable to resolve the issue in mediation, the arbitration award is revealed and generally becomes binding.
No matter which form of this hybrid process is used, the neutral must possess all of the qualifications for both mediation and arbitration and likely will have topic specific expertise in the issues involved. The ethical standards of the arbitration will generally govern the med/arb process, since those represent a higher and tougher standard.
The med/arb starts with a written agreement or court order. It is essential that this agreement or court order is one which is understood by the parties as well as counsel. An arbitrator's authority is only based upon the authority granted to him in the arbitration agreement or order to compel arbitration. Similarly, the arrangement between the mediator/arbitrator and the parties is also based upon the agreement that the mediator/arbitrator has with the parties and their counsel. This can be accomplished through execution of an engagement agreement, a mediation agreement tailored to the med/arb process, or combining them both. A sample of the language advocates and ADR providers should use include the following:
"The Client and Counsel have requested MCW act in both the capacity of mediator and arbitrator. During the mediation portion of this engagement, MCW may conduct private sessions/caucuses with one party and exclude the other and receive confidential information and/or information which may not be admissible or relevant in the arbitration. The parties hereby acknowledge that this may occur, and if it did, same would not be used to disqualify MCW from acting as arbitrator nor be grounds for vacatur or challenge to confirmation of any arbitration award. Any and all conflicts created by MCW’s dual capacity as arbitrator and mediator are hereby waived. MCW shall have complete authority over the mediation and arbitration subject to the Arbitration Agreement of the parties as well as the American Arbitration Association’s Commercial Arbitration Rules and MCR 2.411. MCW shall have the same limited immunity as judges and court employees would have under federal or state law as he is not a necessary party in any judicial or arbitration proceeding relative to the mediation/arbitration contemplated by this engagement.

When a party representative meets alone with the mediator, he or she will clearly inform MCW what statements or documents shall remain confidential, and what may be shared with the other party(ies). But in any event, nothing disclosed in these private discussions may be considered in the arbitration unless introduced by either party independently during the arbitration."

At the outset of the engagement, an in-person conference with the parties and their counsel is the best way to ensure that everyone understands the process and executes the documents in a knowing and appropriate manner. During this conference, it is important to discuss all of the benefits and burdens of the process, and to describe how the process will work. You should answer any of the concerns voiced by the parties or their counsel and these answers must be clear, concise and candid, for it is only then that a valid and acceptable executed agreement will result.
This hybrid procedure allows for voluntary settlement opportunities with closure. Since the arbitrator does not have to be educated in the substance of the problems involved in the dispute, having already learned of the ins and outs of the dispute during the mediation portion of the process, significant economies in both time and expense can result. On occasion, following the mediation portion of a med/arb, the parties will elect to submit the matter to the arbitrator in a "summary" fashion. This may take the form of submitting the matter on briefs, exhibits, and affidavits with no testimony being offered. They may do this because of the knowledge shown by the mediator-arbitrator and their confidence in the mediator/arbitrator to be fair and impartial during the mediation phase. Because the parties know that the mediator will ultimately be a final and binding decision maker, there is also a greater tendency for the mediation process to result in a settlement, and thereby cutting out the expense and time involved in the arbitration process. This process is something for advocates and parties alike to consider. In the current economic environment, given the rise in the use of alternative dispute resolution techniques for problem solving, and given the desire for speed, lower cost, and finality, more and more parties and their counsel are utilizing the med/arb process to resolve their disputes. For those interested in learning more about med/arb, whether as a provider or advocate, Professional Resolution Experts of Michigan ( PREMi) will be sponsoring a med-arb seminar on October 27th , 2011 at Cooley Law School, Auburn Hills, with Martin Weisman as the lead trainer along with many of the PREMi associates . For more information contact William Weber, PREMi’s executive director at 248 644 0077 or email execdirector@premi.us



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I will be a presenter at PREMi's advanced mediation training in Med/Arb on October 27, 2011. This will fulfill SCAO imposed CLE requirements and will be a worthwhile seminar introducing the ins and outs of what could very well be an increasingly used ADR process which is more efficient and less costly than the traditional non hybrid approaches. I hope you can join me. For more information go to http://linkd.in/mSsNCq

For my final posting today, I wanted to alert you to a great program that will be offered by Professional Resolutions Experts of Michigan (PREMi). On October 27th, 2011 at the Cooley Law School Auburn Hills Campus, PREMi will be presenting an 8 hour seminar, which will qualify for CLE credit, on the phenomenon of Med/Arb. This is a process where a single ADR provider first conducts a mediation with the disputing parties, and if no settlement is arrived at, conducts an arbitration with the award being a final and binding award. The seminar will explore the documentation and disclosures that are required to agree to the process, the benefits and burdens of the process, and the ethical issues involved. I will be one of the presenters, as will many of the other extremely qualified PREMi associates. If you have not experienced this form of ADR, which is currently on the rise, this is the seminar for you. If you have been a part of one or more Med/Arb processes, your input at the seminar would be great.

The ADR Section of the Michigan Bar Association needs your help. We are working to obtain the passage of the Revised Uniform Arbitration Act (RUAA) in Michigan. The Michigan Arbitration Act, which was patterned after the Uniform Arbitration Act, was passed in the 1950's and there has been little or no modification since then. Obviously the use of arbitration has changed dramatically. Not only as a result of increase in numbers, but also the dramatic change in technology. The reforms are absolutely essential to modernizing the arbitration process and to protect the users due process rights, lower cost, and increase efficiency. We would appreciate any support you might be able to give. Please contact me for details as to how you might be able to help.

This is just to alert you to several ADR CLE programs, both of which I will be a trainer/faculty member. On March 15th, 2012, The Institute of Continuing Legal Education and the Alternative Dispute Resolution Section of the Michigan Bar Association will hold their 11th Annual Advanced Negotiation & Dispute Resolution Institute. I will be moderating and speaking on the arbitration topics " Is the current arbitration system broken?" and Suggested remedies for a broken system." Also on November 18th, 2011 I will be the trainer for an American Arbitration Association ACE program "Maximizing Efficiency and Economy in Arbitration". I urge both arbitration advocates, users, and providers to attend and participate. They both will be extremely helpful to all who attend.

I have been invited by the American Arbitration Association to be a faculty member of their seminar Managing Efficiency & Economy in Arbitration to be held sometime in the fall. I will send out details as soon as they are available.

I recently mediated as part of a three person mediation panel with two non lawyers/non mediator trained mediators. The matter involved several millions of dollars. It was an interesting process. I was able to control the process and the other two had topic specific expertise. This could have been a very difficult mediation, but the personalities of my co mediators were of a nature that we were able to work together. I was surprised at the outcome, which resulted in a resolution of the dispute.