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Can three-mediator panels resolve СimpossibleТ disputes.

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Alternatives
TO THE HIGH COSTS OF LITIGATION
CPR INSTITUTE FOR DISPUTE RESOLUTION
NEUTRALS
M. Scott Donahey of Palo Alto, Calif.,
and Sandra A. Sellers of McLean,
Va., write about their experience last
year as members of a three-person
mediation panel. ..................Page 7 1
CPR NEWS
A new process for dealing with
disputes over Internet domains
leads the list of CPR ADR Award
winners for 2000. Find out who
won and what they did, with full
details on the achievement and
writing awards. ...................Page 72
ADR BRIEFS
The chief judge of New York’s
Court of Appeals, the state’s highest
court, acts to end frustration over
disputes involving attorneys fees.
She has introduced a sweeping A D R
program that lawyers must t r y to
use to resolve disagreements with
clients. .................................
Page 73
ANNUAL INDEX
The print guide to every feature,
brief, and supplement published in
Akternatives in 2000, organized by
topic and author. .................Page 77
DEPARTMENTS
CPR News ...........................
Page
A D R Briefs .......................... Page
Cartoon by Cullum .............Page
Online Info .. Pages 75, 76, 77 &
72
73
73
90
ADR Counsel
In
This issue:
Media tion
Confidentiality
See Centerfold
VOL. 19 NO. 2 FEBRUARY 2 0 0 1
Can Three-Mediator Panels
Resolve ‘Impossible’ Disputes?
I
BY M. SCOll DONAHEY AND
SANDRA A. SELLERS
A year ago, the authors of this article served
on a panel of three mediators to mediate a software development contract dispute worth several million dollars. None of the
mediators previously had participated on such a panel. Though
initially uncertain as to the process and usefulness of a three-mediator panel, we came to believe
that the advantages of this type of
mediation led to the resolution of
a seeminglyAmpossibledispute.
Like many contracts, this
agreement contained an alternative dispute resolution clause in which any dispute would be
referred to mediation under the mediation procedures of the CPR Institute for Dispute Resolution,which p u b l i i h e s h ~ v e Unlike
x
most
ADRclauses, however, this agreement specified
the use of three mediators-each side chose
one mediator, and the two party-appointed
mediators chose a third mediator.
How did this unusual ADR provision
arise?The counsel indicated that in a draft of
the contract, one of the parties had suggested
an arbitration clause using three arbitrators.
The other party had a negative arbitration
experience and would not agree to arbitration, but would agree to mediation, so the
parties compromised with an ADR clause that
specified three mediators.
11
CONDUCTING THE MEDIATION
Planning: When the third mediator had been
selected, the mediators held a conference call.
It was determined that the mediator who was
the joint selection of the two party-appointed
mediators should act as “chair” of the panel,
I
which convened for the mediation session in
January 2000. Since none of the group had
been involved in a three-mediator procedure,
nor knew anyone who had, the first order of
business was to determine how this strange
structure should function.
The chair asked the two
party-appointed mediators
how they saw themselves. The
chair asked whether they considered themselves typical “neutral” mediators or if they saw
themselves in any respect as an
advocate or representative of
the party who had appointed
each of them. Both mediators felt strongly
that they were and would conduct themselves
strictly as neutrals.
The mediators agreed that they would
convene a conference call with counsel to discuss the mediation’s logistics and the submissions they wanted to receive in advance.They
agreed to ask the parties: 1) to submit jointly
the contract at issue and other related documents; 2) to exchange a short position statement; and 3) to submit unilaterally a
confidential mediation statement.
It was agreed that the parties would be
asked to include in the confidential statement three alternative outcomes with which
each would be satisfied. The mediators did
this despite the understanding, based on conversations that the two party mediators had
with their respective clients and counsel, that
only money was at issue, and that there was
no possibility of any continuing relationship.
In doing so, the panel wanted to encourage
the parties to begin to think “outside the
envelope.”
(continued on page 74)
Donahey is a member of the Litigation and Internet Practice groups at Tomlinson Zisko Morosoli & Maser i n
Palo Alto, Calif. Sellers is president of Technology Mediation SeM’ces i n McLean, Va., and a mediator with
Washington‘s Bickerman Dispute Resolution Group.
Can Three-Mediator Panels Resolve ‘Impossible’ Disputes?
(continued from front page)
In the conference call that followed with
all mediators and counsel, the logistics were
discussed, including the time and place of the
mediation. The chair led the discussion and
presented the agreed-upon requests, but the
party-appointed mediators participated freely,
and pointed out items that the chair had overlooked.
The panel made it clear to the parties that
all mediators were acting as neutrals and that
the sole aim was to assist the parties in reaching a satisfactory solution. The three mediators also made it clear that the panel expected
each party to come with a client representative who had full settlement authority.
When the panel asked the parties to submit three alternative solutions, one counsel
expressed great skepticism, stated that the
parties could no longer work together, and
that only the amount of money that was to
change hands was at issue. Upon further encouragement from the mediators, counsel
for both parties agreed to attempt to meet
this request.
The day before the mediation was to begin, the three mediators met to discuss what
they had learned from a review of the submissions and the mediation procedure to
be followed. Initially, the panel considered
whether there was some way to exploit the
make-up of the mediation panel in conducting the mediation. It was suggested that following the initial joint session, each
party-appointed mediator might meet with
his or her client group, with the chair joining in later individual sessions.This was rejected, because the panel feared that the
clients might tend to see the party-appointed mediators as their representatives
and advocates, which we were seeking to
avoid.
After much discussion, it was agreed that
the full panel would participate not only in
the joint session, but in the separate caucuses
as well, so that the parties were always dealing with all three mediators. All mediators
would hear the unfiltered views and emotions of the parties.
The Session: The chair convened the session. He described the mediation process and
ground rules for the parties and counsel. He
indicated that, in light of the excellent written submissions, the mediators felt no need
for formal opening statements, but asked the
parties if they had anything they wished to
say before breaking into caucus groups.
Both parties indicated their nonlawyer
representativeswanted to address the mediators. There followed a series of point-counterpoint presentations and questions by the
mediators, until it appeared to the mediators
that nothing new was forthcoming. At that
time, the mediators determined to caucus
with the parties independently.
As the caucuses evolved, the mediator who
had been appointed by the party with whom
the mediator panel was meeting began to take
the lead in presenting the other party’s position and in exploring potential solutions. It
about getting authority, while the other two
mediators maintained a conciliatory posture.
The party without complete authority
agreed to recommend settlement. As it was
already Saturday where the representatives
with authority were located, it was finally
agreed that the terms would be recommended by the representatives present, and
that the party seeking approval must communicate final approval or rejection by
noon Monday.
The mediators reduced the essential terms
to writing, including a statement that the
party representatives who were present recommended settlement according to the terms
Since the full mediator panel
participated i n both joint sessions
and caucuses, it was assured that all
three neutrals would hear the parties‘
unfiltered views and emotions.
became apparent to the mediators that each
party placed special trust in the mediator it
had appointed and regarded the chair as a
“super neutral,” whose independent views
they often solicited. The three-mediator format enabled one of the mediators to take on
a more direct and evaluative role, while the
other mediators continued to approach the
mediation from a facilitative posture.
When it became clear to the mediators
that an evaluation by the mediators would
be necessary ifa settlement was to be reached,
the chair went first in presenting the evaluation, and the mediator appointed by the party
went last. This permitted the delivery of negative evaluation of the party’s position, followed by a softening of the blow.
The Settlement: As we neared an agreement
in principle, a roadblock emerged. One of
the parties had come to the mediation with
limited authority, and full authority resided
in individuals located in a time zone six hours
ahead of that in which the mediation was
being conducted. Again, one of the mediators was free to be aggressively confrontational
memorialized. This agreement was signed by
the parties, their counsel, and the mediators.
Before noon on the following Monday, the
mediators were notified that the settlement
had been approved.
THE ADVANTAGES
Ability to adopt different persona at different stages of the mediation.
The mediators had no preconceived ideas
of their respective roles. Interestingly, the roles
changed as the mediation progressed.
During the storytelling and brainstorming phase, each mediator actively questioned each party. The party-appointed
mediators seemed to take the biggest role
in questioning the “opposing” party’s representatives, in an effort to search for possible solutions.
In the settlement phase, the mediator appointed by the party with whom the mediators currently were caucusing presented the
proposal from the opposing party, and took
the lead in offering thoughts or suggestions.
The so-called chair added his thoughts next,
(continued on following page)
(continued from previous page)
followed last by the mediator appointed by
the opposing party.
Near the end of the mediation, with settlement near, the party-appointed mediators
began to play “good cop/bad cop”-aggressively pushing their “own” parties, and assuming a softer, conciliatory tone with the
“opposing”party. The chair continued to play
the role of the “super neutral,” offering opinions and making suggestions in support of
the party-appointed mediators.
When either party asked the mediators
for an evaluation, the chair led, followed by
the mediator appointed by the opposing
party, saving the party’s own neutral for last.
This enabled the party’s neutral to either
soften the blow or reinforce the other mediators’ views, allowing no room for the parties’ misinterpretation.
Though every mediator changes hats
throughout the various stages of mediation,
The panel believed that having different persons to play different roles was extremely
helpful in convincing these entrenched parties to settle.
The opinions of three mediators had more
impact than one opinion.
As noted above, each mediator gave the
parties a brief evaluation concerning substantive legal questions, as well as the range of
the value of the monetary settlement. Interestingly, the mediators agreed on most issues, though for different reasons. T h e
mediators strongly believe that the collective opinion of three mediators-independently reached and expressed-was more
persuasive than any one opinion, and probably convinced the parties that settlement
was the best option.
Three heads are more creative than one.
With different experiences and perspectives, the three mediators collectively were
more creative than one mediator. Though
the parties ended with a monetary settlement, the mediators delved into many
other possible settlement options, playing
off of questions or ideas raised by another
mediator.
Splitting the mediation duties was less
strenuous.
Finally, the long, continuous sessions were
less exhausting to each mediator because three
mediators split the roles and the time as spokesmen. The panel members were able to stay
fresher, which permitted all three to remain
creative and patient, particularly when the
settlement may have been lost due to one
party’s lack of full settlement authority.
ALTERNATIVES
ARTICLES ARE AVAILABLE
I N FULL TEXT O N WESTLAW”
A N D LEX1S”-NEXIS”.
O n WESTLAW, you can find
articles dating back to 1991;
on LEXIS-NEXIS, from
1993 to the present.
From the WESTLAW directory
screen, enter cdb ALTHCLr.
O n LEXIS, select the
<ADR> library; then enter
<ahern>.
Alternatives digest and feature article
for each issue are available at
WWW.CPRADR.ORG
THE DISADVANTAGES
The panel identified only two disadvantages
to using a three-mediator panel. It took longer
to select three mediators and coordinate schedules (due in part to the Thanksgiving and
Christmas holidays). Nevertheless, the mediation was completed within 60 days of the parties’ invocation of the contract’s ADR
provisions.
The expense to the parties, of course, was
greater with three mediators than with one.
Each party paid directly the mediator chosen by them; the parties split the fees and
expenses of the third mediator.
CONCLUSION
At the mediation’s conclusion, both parties
indicated that they initially had expected the
mediation to fail, and believed the three-rnediator panel was extremely helpful in reaching a successful outcome.
Though the extra expense and initial difficulty in coordinating schedules may not be
worth the use of a three-mediator panel in
many disputes, it could prove to be the best
method to resolve some disputes that previously were considered impossible to settle. fi
A B O U T T H E CPR I N S T I T U T E FOR D I S P U T E R E S O L U T I O N
ORGANIZED BY P R O M I N E N T CORPORATE COUNSEL,
THE CPR INSTITUTE FOR DISPUTE RESOLUTION has
become a leader in developing uses of private alternatives to
the costly litigation confronting major corporations and public entities. The membership of CPR, a nonprofit organization, consists of more than 500 large companies, leading U.S.
law firms, academics and judges. See “Membership at our
Web site, www.cpradr.org.
WOULD YOU LIKE FURTHER INFORMATION ABOUT CPR?
See our Web site at www.cpradr.org or complete the following
form:
Name
Organizatton
Title
~Address
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TO I T S MEMBERS, CPR OFFERS EXTENSIVE BENEFITS
A N D SERVICES, including research access to CPR’s unique
ADR database; training and counseling; a complete library of
ADR practice tools and model procedures; and semi-annual
con terences.
Telephone
RETURN TO: Mcmbership and Administration. CPR Insticure for Dispure Ilesolurion, 366 Madison Avenue, New York, NY 10017. Telephone: (21 2 ) 949-6490, Fax: (212) 949-8859. Internet: info@cpradr.org
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