Friday, October 25, 2013
New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators under these new rules should be better equipped to control modern discovery and the costs associated with the advent of electronic discovery. They may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. See AAA rule changes here-- http://go.adr.org/LP=307 and summary http://bit.ly/16z6r3i
Tuesday, October 15, 2013
This week has been proclaimed by Governor Scott as Mediation Week in The State of Florida. In his proclamation, the governor stated, “Court programs use mediation to effectively and efficiently resolve disputes.” For the past couple of decades, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation becomes more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. Many jurisdictions are celebrating this week in conjunction with the American Bar Association's Mediation Week. This ABA initiative is cognizant of efforts in institutionalizing mediation as one of several appropriate dispute resolution processes, and one particularly utilizing self-determination of the parties. The American Bar Association puts out a toolkit of useful ADR materials you can find here-- http://www.americanbar.org/groups/dispute_resolution/resources/mediation_week_toolkit.html
Saturday, October 5, 2013
Indulge me for a moment on the crisis facing our nation. In a dozen years of mediating, I've seen this play many times. The parties have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, a mediator is necessary. As the late Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. God Bless America.