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Busy lawyers can become better negotiators.

The Joint Alternative Dispute Resolution Committee has worked since 1986 to further the many forms of ADR in Virginia.

These leaders of The Virginia Bar Association and the Virginia State Bar continue to write, publish and present lessons and relevant practice information -- not only of value to full-time neutrals, but to the legal community at large.

We hope you'll find elements in these posts that enhance your law practice and welcome your comments.

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Mentee-Mentor Opportunities Matter in ADR

Posted By Claudia Farr, Thursday, October 12, 2017

Jeanne Franklin posted great comments for our consideration a few weeks back on diversity in ADR and access to justice.   Thanks Jeanne!  

On the mentoring topic, I agree that a focus on developing more opportunities for mentor-mentee relationships would be useful.  As in law and countless other fields, real, meaningful mentoring can make a profound difference in an individual’s ADR career path.  Many if not all of us can all remember mentors, formal or informal, who took us under their wing at some stage in our careers.  These people listened to us, advised us, challenged us, and inspired us.

In Virginia, certified mentor-mediators provide feedback and coaching to mediator certification candidates through mediation observations and co-mediations.  This presents one of the first opportunities for an emerging new mediator to learn from a more-experienced mentor not only how to mediate, but perhaps also how best to network, learn from peers, and market their practice once certified, among other things.  A little inspiration can also emerge.  

Once a mediator is certified, the usefulness of mentoring does not end.  Even in mid-career, the value of having a mentor, not necessarily a certified mentor-mediator at that point, can take an individual’s ADR practice to the next level.  So yes, let’s consider how best to encourage and enhance useful mentee-mentor relationships, formal and informal, throughout a new practitioner’s ADR career. 

At the Joint ADR Committee’s September 25, 2017 Symposium, I saw a large training room full of potential mentors, of all ages, some perhaps already paired with mentees through a law practice, ADR practice, or both.  How can we carry forward the wisdom of that room and Virginia’s larger ADR community to new and mid-career practitioners?  And, as Jeanne queries us in her post, how could we expand our role in outreach and recruitment of persons we see as potential valuable mediators in the communities where we practice?  Some things to consider. 

Tags:  ADR  mentee  mentor 

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Diversity in ADR: How Can We Achieve This?

Posted By Claudia Farr, Thursday, August 31, 2017
Updated: Thursday, August 31, 2017

Earlier this summer, I shared some thoughts on the positive impact that a diverse pool of neutrals can have on ensuring access to justice.  Several of you posted insightful comments about your experience in serving diverse parties, hopes for expanding the pool of neutrals to include diverse providers, and the call for ADR consumers, particularly in-house counsel, to make a conscious effort to keep diversity in mind when choosing neutrals. 

Now the question is this:  how can the Virginia dispute resolution community best encourage and develop an expanded pool of neutrals, one that is strong, diverse, and responsive to the needs of consumers?  

Organizational partnerships could be part of the answer.  Here’s one example at the national and global levels.  The International Institute for Conflict Prevention and Resolution (CPR) now partners with the Leadership Council on Legal Diversity (LCLD) and the Financial Industry Regulatory Authority (FINRA).  As CPR’s President and CEO Noah Hanft wrote in his March 20, 2017 article “Making Diversity Happen,” this partnership combines LCLD’s Fellows Program, FINRA’s arbitration training, and mentoring and networking with CPR neutrals with “the goal of getting diverse neutrals included on rosters offering actual paid work opportunities.”  Interestingly, Virginia’s own Robert J. Grey, Jr., a lawyer, mediator, state bar leader and former ABA president, is the first President of the LCLD.

Could state-level organizational partnerships help diversify the pool of experienced mediators and arbitrators in Virginia?  If so, what might that partnership look like?

What can ADR stakeholders (mediators, arbitrators, ADR provider organizations, in-house counsel, law firms, the judiciary) do to promote more inclusivity in ADR?

What are your thoughts -- let’s hear them!

 

If you'd like to read more about diversity in ADR, these articles helped my understanding of this important issue:

“Why Bringing Diversity to ADR is a Necessity” by David Burt and Laura Kaster

“Increasing Diversity Among Arbitrators” by Sasha Carbone and Jeffrey Zaino

“The Case for Bringing Diversity to the Selection of ADR Neutrals” by Theodore Cheng

“Making Diversity Happen” by Noah Hanft

Tags:  adr  diversity 

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What’s a Successful Mediation?

Posted By Marina Mayes, Monday, July 31, 2017
Updated: Tuesday, August 1, 2017

Recently I mediated several family mediation cases over a long day with not much of an opportunity to catch up on paperwork until the very end. As I was completing the tedious report sheets I found my mind thinking back to the day’s cases and feeling pleased with each outcome in all four cases that I had mediated that day. My satisfaction certainly did not have anything to do with the overall settlement rate for that day, which we as mediators often find ourselves proudly spouting (80% success rate and so forth). Rather, my satisfaction came from the fact that in a day of four scheduled court-referred mediations, all four couples showed up, each sat through the complete mediation introduction session, and we could go through the process of information sharing and issue spotting. In the end, legal questions prevented two of the four couples from resolving their issues completely.  Ultimately, these couples decided that a decision maker, i.e. judge, needed to hear their legal arguments. At the end of one such mediation, as the parties were leaving, one turned to me and said that she was sorry for having “wasted” my time and that she had been afraid that this would happen. I immediately assured her that she did not waste my time and that a successful mediation does not always mean that an agreement is made right then and there.

How to define a successful mediation has always interested me. This is especially true since so much around mediation highlights success rates and faster case settlements. Funding proposals for mediation centers and mediation court programs often provide examples of how mediations are successful, highlighting again agreement rates between parties who go through the mediation process and reach an agreement prior to a court date. While agreements are key factors to determine if a mediation is successful, I would still caution anyone not to define a mediation unsuccessful simply because no settlement agreement was produced at the end and the parties still had to go to court to have their case resolved. After all, due to mediation, parties may have the information necessary to take the next step in the court case, and each party’s position may be clearer and more defined to where eventual settlement talks can occur in the future. Their mediation may even have been the first step in a long process to rebuild their relationship and eventually  be able to solve their own conflicts without a court altogether.

Thoughts on how you define a successful mediation?

Tags:  mediation 

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Access to Justice and Diversity in ADR

Posted By Claudia Farr, Friday, June 30, 2017

Lately I’ve had the opportunity to think about and discuss with other ADR colleagues two distinct but interrelated issues – access to justice and diversity. And I’ve realized something new about both.

My curiosity was piqued after learning about the 2016-17 Global Pound Conference Series, and that multi-national commercial disputants have a need for improved access to justice. Why, I wondered, would these businesses need pro bono services from their lawyers or from their rosters of neutrals? Money would not seem to be the problem. But I soon realized that despite a multi-national’s financial wealth, low levels of diversity among available neutrals can impede access to justice in resolving international commercial disputes. These large businesses want dispute resolution services that are compatible with the diverse cultures of their customers, employees, and business partners, and that are therefore perceived as fair by these parties.

So too on a smaller geographic scale, say in Virginia. To fully experience access to justice, businesses, customers, families and individuals in the Commonwealth need ADR services they perceive as fair. And perceptions matter – a sense of fairness can hinge on having access to a pool of neutrals that reflects the state’s growing diversity, including racial, gender, cultural and language differences. Do we have that now? If we don’t, how can we get there? Let’s hear from you.

Tags:  access to justice  adr  alternative dispute resolution  diversity  neutrals 

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Food for Thought - The Hostile Mediator

Posted By Jeri K. Somers, Tuesday, May 30, 2017

I recently ran across an unexpected perspective on mediation. Generally, experienced mediators adopt a style of mediation that encourages the parties to openly discuss concerns, which can lead to resolving conflict. Typically, the mediator works to defuse negative emotions between the adverse parties by encouraging open communication and discussion, while discouraging parties from focusing on previous negative interactions that have lead them to the point of impasse.

An interesting study challenges the theory that mediators must be “kind facilitators.” The study, entitled “The Surprising Effectiveness of Hostile Mediators,” suggests that hostile mediators can successfully resolve a mediation for various reasons. It concludes that the previous adversaries may “feel more connected and become more willing to reach agreement” when facing a hostile mediator. As an example, on page two of the study, the authors describe the mediation technique of the former Finnish President Martti Ahtisarri (described as a world-renowned conflict mediator of international crises). The study notes that “Ahtisarri’s strategy demonstrates that stern treatment of both parties can have an unusual effect: adversaries who moments before were in conflict may find themselves more united against a hostile mediator – and might even end up finding room for agreement.” The study is discussed in a Scientific American article, "How Tough-Guy Mediators Can Turn 'Them' into 'Us.'”

So let’s share ideas on this – post your comments!

Tags:  hostile mediators  Martti Ahtisarri  mediation  The Surprising Effectiveness of Hostile Mediators 

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Book Review - Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes

Posted By Claudia Farr, Thursday, April 20, 2017
Updated: Thursday, April 20, 2017

I like to make the most of my limited book-reading time, so I especially like recommendations from colleagues in the ADR world. Some time back, a mediator I know and respect suggested this book, first published in 2007, but as relevant as ever. It was superb and I pass the recommendation on to you.

The book is "Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes," by J. Anderson Little. The author’s focus is on litigated money disputes, which he views as fundamentally different from disputes involving primarily interpersonal conflict. As he puts it, money disputes in insured claims inevitably involve positional bargaining, and resist reframing efforts to cast them as opportunities for joint problem-solving and mutual gain. They are different from family or workplace mediations.  

So what’s an “insured claim” mediator to do – just serve as a messenger between caucused parties? The author rejects that notion, and provides useful, often confirming insight into the dynamics of money negotiations, as well as new tools for mediators to consider. Chapters address making a place for traditional bargaining, helping negotiators overcome negative reactions to each other’s proposals, closing the gap between “best numbers” and settlement, standards of conduct in the mediation of civil litigation, and ways to respond to some 25 settlement clichés often voiced by the parties’ attorneys during monetary dispute mediation. So give this book a try!  

Now for you:  What tips, books, articles, or other ADR learning resources can you recommend to the rest of us? Whether you represent clients in negotiations, mediation, arbitration, or serve as an arbitrator, mediator, or both, let’s hear from you. Shared learning takes us all higher.

Tags:  insured claim  Joint ADR Committee  Joint Alternative Dispute Resolution Committee  mediation  shared learning  tips and techniques 

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Upcoming Meeting and ADR in National Affair

Posted By Administration, Tuesday, January 31, 2017

A reminder that the next council meeting of the Joint Alternative Dispute Committee will be Feb. 16 at 10 a.m. in the VBA office. Conference call information for this meeting of the leadership of the committee is available.

The VBA office is located at 700 E. Franklin St., Suite 1120, Richmond, VA 23219.

The VBA will be moving its headquarters sometime this spring to the Bank of America Center, also in downtown Richmond. In a space twice the existing footprint, the new headquarters will include a bar center dubbed VBA on Main with various meeting, working, collaborating, socializing and lounging space unique among statewide bar groups in Virginia. Watch for construction updates - once building begins - on the VBA homepage at vba.org.

ADR in national affairs

Jeanne Franklin, a past chair of the Joint ADR Committee and the pen behind many of the posts on this blog, added a musing to her firm blog at Franklin Solutions today. "Still Waters: Finding Answers" looks at the common skills of dispute resolvers and fine leaders to calm the shock some Americans have experienced of late. Take a look.

Tags:  Jeanne Franklin  Joint Alternative Dispute Resolution Committee 

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Coming Up Fast! Joint ADR Committee Co-Sponsors Dec. 12 Webinar

Posted By Administration, Tuesday, November 29, 2016

Joint Alternative Dispute Resolution Council members Jim Cosby and Robert Loftin set to work to create a program focused on arbitration-related questions and issues lawyers should be able to handle. Former council member Brad Davenport joined the effort and, working with Virginia CLE, they are offering what will be a must-not-miss arbitration program, “Arbitration Today: Goals and Reality.” Joined by retired Justice LeRoy Millette Jr. and David E. Nagle they form a SUPERB panel.

It's all part of continuing the Joint ADR Committee's 2016 focus on arbitration issues.

This two-hour Dec. 12 program, from 11 a.m. to 1 p.m., will dig into the “state of the art of arbitration, where it has been, where it can go, and the issues in between.”

Dec. 12 is almost here. Go to the Virginia CLE website and register for this program, available live on-site, via webcast or by telephone.

Tags:  arbitration  Brad Davenport  David E. Nagle  Jim Cosby  LeRoy Millette Jr.  Robert Loftin 

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Kudos to Chair-Elect Deborah Blevins

Posted By Administration, Thursday, October 13, 2016

In September 2016, the Virginia Workers’ Compensation Commission received the inaugural Innovation Award from the International Association of Industrial Accident Boards and Commissions.

This award recognized and honored the agency’s innovative Automated ADR program developed to accommodate the growing demand for ADR services. The new system provides electronic capability and processes for case assessment, issue identification, scheduling and resolution.

The Honorable Deborah Blevins presents a CME session about the Automated ADR program at the Virginia Workers' Compensation Commission to the Joint ADR Council in 2014Joint ADR Chair-elect Deborah Blevins has been instrumental in developing this ADR program for the agency and played a role in Virginia's receipt of this prestigious award.

As explained by Blevins, the agency’s new program is a cost- and time saver for injured workers and employers alike and leads to efficient resolution of claims.

Two years ago, she gave a CME presentation to the JADR Council about the ADR program.

Congratulations for the leadership, and the achievement! Virginia’s legal ADR community salutes you.

Tags:  Automated ADR program  Deborah Blevins  Innovation Award  International Association of Industrial Accident B  Virginia Workers' Compensation Commission 

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What's Your View of Arbitration?

Posted By Administration, Thursday, September 1, 2016

Joint ADR Committee Chair Will Shewmake announced a committee focus this year on arbitration. In the Committee’s ADR Advisory of Aug. 31, he describes several programs on arbitration that the committee will present in the remaining months of 2016. Check it out.

Please also take a look at the forceful response published in the ABA’s Summer 2016 Dispute Resolution Magazine to the New York Times’ fall 2015 series on arbitration. Written by Professor David B. Lipsky, the ABA article challenges the conclusions in the Times articles and generalizations about the value and fairness of the arbitration process. Professor Lipsky is an advocate both for the use of arbitration and for making changes that will enhance its transparency and fairness.

Lawyers interested in understanding better whether, how and when to use arbitration should review Professor Lipsky’s points.

Tell us your experiences and views of arbitration!

Tags:  arbitration 

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