Practice Playbook Podcast Appearance

So thrilled to be asked to join Susan Guthrie on The Practice Playbook Podcast where we talk about getting back to the basics in what we do in the face of unjustified fears like: "Is AI replacing mediators?" Dispute resolution professionals are likely asking this right now because technology is so rapidly advancing. AI tools are everywhere and virtual practice is the norm. In our conversation, we find AI is not actually replacing mediators. It doesn't replace skill, rather it is helpful to automating scheduling, helping to summarize documents and making more information instantly accessible. What remains human is the mediator’s judgment, presence and ability to guide people through uncertainty. Technology reduces friction, not responsibility. Strong mediators become more visible in this environment. Their preparation is clearer. Their instincts are sharper. Their ability to read people and manage dynamics stands out. Technology does not resolve complex cases, but can help better define them. However, lived experience and intuition are what still drive successful mediation outcomes. AI systems cannot read a room yet! No algorithm can sense hesitation, fear, or strategic posturing in real time. No tool can decide when to push, when to pause, or when silence is doing the work. Those decisions come from vast experience. They come from curiosity and instincts developed over hundreds or thousands of cases. These are not skills that can be automated. They are earned. Mediation is fundamentally a human process. It relies on judgment, trust, and the ability to guide people through uncertainty, none of which can be replaced by technology. More data does not always produce better outcomes. One challenge in today’s mediation environment is the information paradox. Parties have access to more data than ever, yet clarity is often harder to achieve. Excess documentation, poorly timed disclosures, and last-minute revelations can slow progress instead of advancing it. Discernment is perhaps one of the most valuable skills a mediator brings to the room in this age. Knowing what matters, when it matters, and how to use information strategically is not a technical function. It is a professional one. Until real AGI? Give us a listen on the first episode of the new year here-- https://bit.ly/PPP-Lawrence-Kolin

Future of AI in ADR

For Mediation Week 2025, I will recount my observations from attending the American Arbitration Association's (AAA) Future of Dispute Resolution Conference in New York, dealing with the advent of Artificial Intelligence (AI). Taking place at Cardozo Law School in conjunction with the International Institute for Conflict Prevention and Resolution (CPR) and sponsored by the Practising Law Institute (PLI), this dynamic conference with Alternative Dispute Resolution (ADR) professionals, lawyer advocates, in-house counsel, programmers and developers explored how AI is transforming arbitration, mediation, and online dispute resolution (ODR). Legaltech innovators, institutional leaders and practitioners had quite interactive debates, a live demonstration of AAA's upcoming AI-trained construction arbitration product being launched next month (still requiring human oversight), and some real-world case studies. Humans are not being replaced, rather augmented in their skills and time management. Experience in the field cannot be simply replaced by machine, though AI's influence on dispute prevention cannot be understated. It will impact process, integrity, ethics and certainly case resolution outcomes. At the conclusion of the program, online dispute resolution pioneer, Colin Rule, opined that AI was really better suited as a tool to help both parties and neutrals in mediation, moreso than arbitration. The Future Dispute Resolution New York Hackathon the following day was hosted at AAA in Manhattan and included the Wolters Kluwer Arbitration digital experience team. This collaborative workshop paired neutrals with staff technologists and coders. Guided by product designers, engineers, and user experience (UX) experts, we collaborated forming interdisciplinary teams to identify practical pain points in the dispute resolution lifecycle and to rapidly prototype technology solutions from dispute prevention alerting tools to court service portals for self-represented entrepreneurs. Building on the success of the Future Dispute Resolution Hague Hackathon, our teams brainstormed in the morning and developed next-gen ADR demos in the afternoon, aiming to make dispute resolution processes faster, more equitable, and less expensive. The presentations from nine teams at the end of the day were quite impressive, given the compressed time to develop apps. Our team created "NeutralLens" an AI product for more efficiently distilling document submissions. For accuracy, our team utilized a Retrieval Augmented Generation (RAG) an AI framework that enhances a large language model (LLM) by allowing it to retrieve relevant information from an external knowledge base to produce more up-to-date and trustworthy responses. It was all very inspiring and we hope will lead to a better experience for those utilizing ADR to get better access to justice outside the court system. See more here-- https://go.adr.org/2025-future-of-dispute-resolution-hackathon and https://www.adr.org/news-and-insights/ai-in-construction-disputes/

May Mediation Mentoring Academy

Whether you are a veteran neutral, new to dispute resolution practice, or an attorney representing clients in mediation or arbitration, our upcoming Advanced Mediation Techniques Mentoring Academy next month in Tampa on May 2-3, 2025 can help you enhance your negotiation and mediation skills. Sign up now as this great interactive program featuring some of the best mediators in Florida is limited in size of participants and is only offered by us every other year! Practice techniques and receive live, immediate feedback to make you a better mediator. Gain appropriate, ethical mediation techniques to address a complex litigation case. Advance your experience in handling hurdles that can appear in complex cases. Improve how you establish “mediation momentum” and move the parties forward to close the deal. Get pro tips on testing party-imposed limitations without overstepping ethical boundaries to bring the parties to an acceptable resolution. Learn technology tips for facilitating the parties’ agreement that can enhance your practice and improve your clients’ experiences. Increase your statewide network of mentors and co-mediators, all while enjoying a stimulating, interactive opportunity to expand your skills in a risk-free environment. See more here-- https://member.floridabar.org/s/lt-event?id=a1RWQ000004oK4T2AU and https://flabaradr.com/mentoring-academy/

Did The Mouse Give Arb a Black Eye?

Recent stories of a wrongful death case that Disney sought to arbitrate through a clickwrap-type agreement from its streaming service have caused an uproar. After a media frenzy, Disney relented yesterday, waiving arbitration and stating: "'We strive to put humanity above all other considerations. With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss.'” Though Disney has withdrawn its motion to arbitrate and will proceed in Orange County Circuit Court, those legal clauses still exist across Disney’s platforms, including on its streaming services and park entrance tickets. For instance, when you create a Disney+ or ESPN+ account, you also agree to the Walt Disney Company’s Terms of Use that include waiving a jury trial. Disney said it was defending against the attempt to include them in the lawsuit against a restaurant, an Irish pub inside Disney Springs where the decedent dined, at the shopping complex Disney leases to other companies. The lawsuit alleges it was billed on Disney’s website as having allergen free food and that the waiter then “'guaranteed'” that the food was allergen-free. The patron, a physician, later died from anaphylaxis, even after self-administering an EpiPen. Arbitration was sought based on an older Disney+ subscription, as well as use of the company's website in 2023 to buy theme park tickets. These headlines, combined with the recent controversy over Olympic gymnastics medals, seemingly gives pause to those that would otherwise utilize an ADR process that often leads to faster outcomes with less associated costs and finality in deciding disputes. See more here-- https://tinyurl.com/35dva36a and https://tinyurl.com/nhkbkrrm and https://shorturl.at/6qU3C (image via Deviant Art)

Early Neutral Evaluation: Alternative to Evaluative Mediation

In the latest issue of The Florida Bar ADR Section's New & Tips, I explore a type of Alternative Dispute Resolution that is more often used outside Florida. Early Neutral Evaluation or ENE is evolving as an effective form of ADR, given the continued high cost of litigation. This process is a corollary of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment on the merits of the case by a neutral expert in an early reality check for clients and lawyers alike. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management. Early Neutral Evaluation can: - Enhance direct communication between the parties about their claims and supporting evidence; - Provide an assessment of the merits of the case by an experienced legal neutral, amounting to a reality check for clients and lawyers; - Identify core issues in dispute while assisting with discovery planning (including electronically stored information); and - Facilitate settlement discussions when requested by the parties before the evaluation. A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel, once the parties request ENE. Following presentations consisting of a confidential exchange of factual information, the evaluator identifies areas of agreement, clarifies the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The parties’ formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary and the monetary estimate of continuing toward trial. Read more here-- http://bit.ly/2oEXDa6

Ham4Arb

Who knew Hamilton was a fan of arbitration? Ron Chernow's best-seller Alexander Hamilton, upon which the new musical is based, chronicles drafting the Constitution, forming the first political parties, and Hamilton's early career as a lawyer achieving amicable settlements through Alternative Dispute Resolution. Apparently, Hamilton was reported to prefer arbitration over litigation. Chernow recounts matters that Hamilton resolved by arbitration, such as shipping disputes. As arbitration figures prominently in the area of consumer agreements, it seems relatively modern, but arbitration has deep roots in our country. Hamilton's busy legal practice made him New York's premier lawyer, with an elite clientele that included the State of New York. Chernow states Hamilton was not alone in his preference for arbitration, as many practitioners of that era preferred it to litigation. In the early years of our nation, arbitration reached a high level of utilization, particularly in commercial disputes, and that continued until a time when the ebb and flow of opinions once again pushed litigation to the forefront and created what was perceived as a judicial hostility toward arbitration-- particularly by allowing the revocation of agreements to arbitrate. The enactment of the Federal Arbitration Act in 1925 established arbitration agreements as valid, irrevocable and enforceable over the last century. Throughout this time, arbitration has been a pivotal part of our dispute resolution mechanisms. While arbitration is by no means a major thread in the overall fabric of Chernow's biography of Hamilton, the references to it are of importance and instructive to all ADR practitioners. The fundamental reasons for its heavy utilization at the time of our nation's formation continue today, particularly in the commercial context. In light of Hamilton's support for arbitration, it's ironic that his final controversy in life was resolved by a duel, a lethal form of dispute resolution says Professor Mazadoorian who analyzes this biography through an ADR lens more here-- http://bit.ly/2n8y1hX

The French Do It Better? Je dis ça, je dis rien

French consumers must currently bring claims against French companies to court. Though come 2016, French companies offering goods and services to consumers will need to provide mediation mechanisms-- free of charge-- in disputes arising from poor performance of a merchandise sale contract or a service agreement. The new requirements come with implementation of recent EU Directives on alternative dispute resolution for consumer disputes. The rules are applicable to any individual or legal entity, whether public or private, acting as part of a commercial, industrial, non-industrial or free market activity. Both domestic and cross-border disputes are subject to these rules. As such, companies must provide consumers with mediator contact details in a clear and legible manner on their website along with their TOC of sale or services, their purchase orders or any other relevant media. Consumer mediation will be observed, evaluated, and controlled by a new entity called the Commission for the Evaluation and the Control of Consumer Mediation (la Commission d’évaluation et de contrôle de la médiation de la consommation – CECMC). Reportedly, mediation will remain an option for consumers and will not be obligatory. Non-compliance on the part of those parties subject to the rules can be administratively fined up to three thousand Euros for individuals and €15,000 for corporations. See more here-- http://bit.ly/1OdhQvr and http://bit.ly/1JuKjbK

ODR Adopted in EU

Online Dispute Resolution or "ODR" has been a niche area for resolving merchant disputes in North America. Our friends across the pond have implemented this technique as of last summer on the heels of a more traditional ADR directive. The new ODR Regulation will enable consumers to bring claims easily, intending the result of a unified EU approach to consumer disputes. The cost of the ODR procedure should be nominal, further reinforcing the aim of the EU to encourage the free movement of goods. However, use of the new procedures will not be mandatory and the procedures will not apply to traders established outside the EU that sell there. Despite the absence of an obligation on the parties to engage in ADR, traders are obliged under the prior EU ADR Directive to provide consumers with certain information relating to ADR entities and ADR schemes which are relevant to their business sector. ODR Regulation further requires that online traders provide a point of contact, as well as a link to the ODR Platform. The ODR Platform offers a single point of entry to EU consumers and traders seeking to resolve disputes out of court which arise from online transactions. Complaints can be filed electronically in all official languages of the EU. The ODR Platform will subsequently transmit the online complaints to the ADR entity competent to deal with the specific dispute. Finally, the ODR Platform provides its own case management tool that enables the ADR entity to conduct the ADR procedure through the ODR Platform. It should be interesting to see the statistics on use and settlement once ODR has taken hold in the EU. See more here from Morrison & Foerster-- http://bit.ly/1O86RSZ

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Upchurch Speaks on Future of Mediation

Alternative Dispute Resolution pioneer John Upchurch of the firm Upchurch Watson White & Max shared his insights on the future of mediation at the Orange County Bar's ADR Committee Luncheon CLE today in Orlando. He was appointed by the Supreme Court of Florida as a charter member of the Supreme Court Committee on Mediation and Arbitration in 1989 and has been resolving disputes ever since. Upchurch opines that injecting creativity into the process could lead to future trends including non-traditional methods in Florida such as Early Neutral Evaluation or even so-called "Night" Baseball Arbitration. He also sees a potential for growth in E-Neutral services with the advent of E-Discovery rules and the need for stronger case management. As for the more typical types of cases, recent case law invalidating caps on medical malpractice damages and the start of new construction projects should lead to more opportunities to employ ADR services in the coming year. Upchurch also commented on the effects of lack of preparation for mediation and down-streaming of cases that need settling, including more follow-up and possibly reconvening parties and counsel. Finally, a discussion was had about the use of Special Magistrates in state court, much like Special Masters in federal court, to streamline discovery and enable quick decisions in a complex case to be made without judicial intervention beyond ratification or rejection of reports and recommendations.

Knocking the "A" off ADR

I was recently elected to the Executive Council of the Alternative Dispute Resolution Section of The Florida Bar. At our meeting during the annual convention in Orlando, we discussed the well-known rate of settlements and the fact that less than 2% of cases actually result in trials. Mediation is an established part of the legal system in most populous states and in reality, it is the norm rather than an alternative in resolving disputes. Court-ordered in many instances, but always voluntary as to the self-determined outcome, mediation is simply dispute resolution. I am now involved in producing an ADR Section website and our committee is thinking about shaking up the branding and nomenclature to reflect the maturity of mediation and arbitration. Perhaps ADR in the 21st century is a misnomer? Maybe the "A" in ADR should morph from "alternative" into "accessible" dispute resolution or be dropped entirely? These are some of the issues our profession is grappling with as our bar approaches 100,000 lawyers in Florida. Stay tuned for more on this topic and give your input by joining the ADR Section through the application here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/3FA42C39F1E41CC38525777400465729/$FILE/ADR%20Application.pdf?OpenElement

State's Confirdential Arbitration Program Violates First Amendment

The United States Court of Appeals for the Third Circuit ended Delaware’s confidential arbitration arbitration program, upholding a trial court decision that it violated the First Amendment. The program, established in 2009, was limited to business disputes of $1 million or more involving Delaware companies. Delaware is well known as a friendly state of incorporation for public companies and its Chancery Court specializes in business disputes. The state Legislature wanted cost effective means of resolving these disputes in light of growing private confidential arbitration with streamlined proceedings, like AAA and JAMS. Interestingly, the disputes were arbitrated by Delaware’s own judges, knowledgeable in adjudicating corporate law matters. Deliberations and resolution were confidential. Delaware charged $6,000 a day with a $12,000 filing fee, generating revenue for the state. Those outside of Delaware contended the rules moved important business disputes into private, perhaps to the detriment of shareholders and other stakeholders in the corporation. However, reportedly, this experiment also had strong proponents. They argued that judges regularly participate in mediation. Moreover, parties could agree to arbitrate their disputes without these judges. Delaware's need to compete, they argued, made arbitration a natural extension of its corporate law expertise. The Delaware Coalition for Open Government sued in federal court, claiming that the arbitration statute was unconstitutional. A lower court struck down the statute in 2012 holding that these arbitration cases were essentially confidential civil trials since the judges, place and proceedings were the same. The appellate court applied an experience and logic test, finding that these proceedings had traditionally been open to the public, and should remain open, even if called arbitration. The lone dissenter in a 2-1 decision stated that the Court of Chancery "may not be able to compete with the new arbitration systems being set up in other states and countries.” Apparently, less than a dozen cases were actually decided under the program. See stories here-- http://nyti.ms/I8sfs9 and http://on.wsj.com/163Rl3r

DOJ Settles Airline Antitrust

The U.S. Justice Department agreed to settle with American Airlines and US Airways, ending the government’s antitrust lawsuit trying to block a merger creating the world's largest airline. The case was headed to trial this month in federal court and the parties previously agreed to a mediator suggested by the court. The Justice Department maintained the planned merger would create a monopoly, thereby reducing competition and leading to higher fares. The settlement calls for certain slots to be divested in major cities, including Boston, New York, Chicago, Dallas, Miami and Los Angeles. U.S. District Judge Kollar-Kotelly, who presided over the Microsoft antitrust case, is overseeing the litigation and must still approve the settlement. American, which has been in bankruptcy, will now exit court protection by merging with US Airways. The companies reportedly expect the merger to generate more than $1 billion in annual net synergies beginning in 2015. The merger will likely close in December, subject to the approval of the settlement by the U.S. Bankruptcy Court. See story here-- http://fxn.ws/1gGczKR

AAA Appellate Arbitration Rules

The American Arbitration Association (AAA) has introduced a new set of Optional Appellate Arbitration Rules effective this month. These new rules provide parties with a streamlined, standardized, appellate arbitration procedure, allowing for review of arbitral awards. AAA maintains this appellate rubric remains consistent with the objective of an expedited, cost effective and just arbitration process. Courts have previously used only narrowly defined statutory grounds to set aside arbitration awards. This process now provides for an appeal within the arbitration. An appellate arbitral panel applies a standard of review more expansive than that allowed by existing federal and state law in vacating awards. Though optional, these rules were developed for large, complex cases where parties value the ability to appeal. Parties may use these rules with agreement by contract or stipulation. Appeals are only permitted on the grounds that the underlying award is based on errors of law that are material, prejudicial or is made on clearly erroneous determinations of fact. Generally, AAA appeals will be determined upon the written documents submitted by the parties, with no oral argument. As efficiency is desired, the Optional Appellate Arbitration Rules anticipate a three month process to complete resolution. At present, the panels consist of former federal and state judges and neutrals with strong appellate backgrounds. Interestingly, the parties may apply the rules whether or not the underlying award was conducted pursuant to AAA or International Centre for Dispute Resolution (ICDR) rules. See rules here-- http://bit.ly/1cDPGXy

ADR Bars Fees in Auto Defect Suits

Congress in 1975 set forth a policy to encourage warrantors to establish procedures whereby consumer disputes could be fairly and expeditiously settled through informal dispute settlement mechanisms under the Magnuson-Moss Act. Apparently, this was not successful enough in resolving consumer disputes regarding chronically defective automobiles. Consequently, many states enacted Lemon Law legislation to address perceived problems. Use of Better Business Bureau's (BBB) Auto Line is required prior to filing suit under the Magnuson-Moss Act, but is not a prerequisite to an action under the Lemon Law. A three-judge panel of the Superior Court of New Jersey’s Appellate Division recently ruled in Nissan’s favor, stating consumer claimants were not eligible for attorneys’ fees as a matter of law because they were bound to an alternative dispute resolution process as a term of their warranties. Claimants signed away their rights to pursue civil actions by accepting arbitration decisions. BBB Auto Line requires aggrieved consumers to mediate the claim first, then proceed to arbitration if the mediation process proves unsuccessful, with the consumer given a choice between an impartial arbitrator or a three-person panel. Plaintiffs were sent to Auto Line after first trying to circumvent that forum with civil suits. While successful in getting Nissan to repurchase the defective vehicles, the arbitrator did not award attorneys’ fees-- prompting new suits and an appeal when trial judges dismissed those suits. The appellate panel found that Plaintiffs were not entitled to attorneys’ fees because of their participation in the ADR process and signatures on settlements that waived legal action related to the same claim. Plaintiffs were not bound to accept the informal dispute settlement decision, but neither rejected the award of repurchase in favor of initiating legal action with the hope of collecting attorneys' fees. It was found the absence of an attorneys' fees award neither violates statutes nor offends public policy. See story here http://bit.ly/1aLYWH7 and opinion http://www.judiciary.state.nj.us/opinions/a6034-11a0116-12.pdf

America's Cup Mediation Stalls

In a sport of titans filled with rules, legal battles are inevitable. With the opening of the preliminary Vuitton Cup approaching, New Zealand is protesting rule changes following the death of British sailor Andrew Simpson whose catamaran capsized. Changes to the 72-foot cats are said to potentially lead to more injuries, as a rule now allows for elevators to extend beyond the beam of the boats. New Zealanders say they built their boat under a set a rules that now has been changed-- cutting their competitive advantage. The America's Cup organization claims boats will be legal whether they use the new rudder configuration or the old one. A recent mediation aimed at reaching agreement on implementing safety recommendations previously issued by the regatta's director ended after four days. Teams reportedly agreed on the vast majority of the safety recommendations which was thought to be a useful and positive exercise that left only a couple of points unresolved. All 37 recommendations developed in consultation with the teams following the fatal capsize will remain part of the permit application submitted to the US Coast Guard. Iain Murray said it was useful to hear the teams’ perspective on safety from a competitive viewpoint. “As Regatta Director, I have a clear task. For me, safety means safety for everyone. Full stop. I stand behind all of the original recommendations to increase safety...I look forward to working with the Coast Guard, teams and other stakeholders to ensure we run a safe and successful America’s Cup this summer.” Hopefully, the winds of accord will pick up before racing commences Sunday. See http://www.americascup.com/en/news/3/news/15969/mediation-makes-good-progress-but-ends-without-final-resolution and http://usat.ly/163IdI1 and http://www.bbc.co.uk/sport/0/sailing/23166664 and http://www.nytimes.com/2013/07/04/sports/Sailing-on-Air-With-Americas-Cup-Catamarans.html?pagewanted=2&ref=general&src=me&pagewanted=print

Class Arbitration?

Recently, because of a split of authority, the U.S. Supreme Court heard argument on whether an arbitrator exceeded his powers under the Federal Arbitration Act in determining parties agreed to authorize class arbitration using broad contractual language. Justices apparently expressed an unwillingness to create a special standard for reviewing class arbitration decisions for this particular result. Cases like Stolt-Nielsen and Concepcion established a presumption of no consent to class arbitration without a clear meeting of the minds. However, the Court repeatedly gives a highly deferential standard of review to decisions by arbitrators, preventing most inquiries into the merits of an arbitrator’s award. There are generally very limited grounds for vacating an arbitration award. To argue the arbitrator exceeded his power requires manifest disregard of the law or clearly governing legal principle. Still, the Court appeared skeptical of the capability of arbitrators to handle class actions, even questioning incentive. In this case, the class involved some 20,000 doctors. Inquiries into arbitrator compensation and experience went unanswered, since that information is non-public. Congress passed the Federal Arbitration Act in 1925 to encourage litigants to settle disputes without resorting to litigation. Should the Court rule for business here, arbitration of class actions could squelch these cases before they become high stakes gambles. See docket- Oxford Health Plans v. Sutter http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-135.htm and discussion here- http://bit.ly/121VC1l and article here- http://onforb.es/14lln2A

Bracket Madness

As it's the season of NCAA basketball brackets, I thought I'd take a moment during March Madness and explore bracketing-- in mediation, that is. Bracketing can be a useful tool in breaking through a stale negotiation. Mediation usually begins with offers intended to send messages to each side, but which are frequently unrealistic in a given dispute. Offers in the early rounds typically remain outside the range of numbers likely to lead to ultimate resolution. Parties can then fall into a pattern of mirroring small incremental movements, until the dance stalls in frustration. While not appropriate for every session, Mediators may effectively pull brackets from their toolbox at this juncture. Because bracketed numbers re-frame the bargaining, parties begin to see the negotiation anew. Settlement becomes a Cinderella team in the tourney. During this process, even exploring potential agreement encourages the parties that the other side still intends to make a good faith effort to strike a deal. Resolution can sometimes remain out of reach until the parties find their way to bargaining bracketed by what each perceives as reasonable numbers. Plaintiffs and defendants might similarly argue just how far each has moved from its initial, often pie in the sky position. However, movement toward a number that is realistic has a better chance to settle the matter. Mediators try to keep conversations with the parties and their counsel going, pushing nuances and nuggets of the case, while identifying underlying interests. As a result, information about the respective risks then drives a numerical range within which settlement can most likely occur. Though parties may propose this strategy, it is better if the mediator introduces the concept of bracketing as a neutral and then caucuses to a conditional range, eventually finding common ground. With a win-win, you get a result superior to 63 of the teams in the tournament!

Knocking heads together for NFL settlement

At NFL meetings this week, settlement of a class action lawsuit against the league by retired players was announced along with the creation of a league fund to help former players in need. Jim Brown, who lobbied hard for the deal, was asked incidentally about his opinion of the proposal to ban backs from using their head to smash into defenders. “I didn’t use my head,” Brown said. “I wasn’t putting my head into too much of anything. I don’t think that’s a good idea." The NFL agreed to pay $42 million as part of a settlement with a group of retired players who challenged the league over using their names and images without consent. The league will use the money to fund a trust to help retired players with an array of issues including medical expenses, housing and career transition. The settlement also establishes a licensing agency for retired players to ensure they are compensated for the use of their identities in promotional materials."We look forward to building an unprecedented new relationship with retired players that will benefit everybody, especially those who need extra medical or financial assistance," Commissioner Roger Goodell said in a statement issued by the league. The federal class action lawsuit accused the NFL of blatantly exploiting retired players' identities in films, highlight reels and memorabilia to market the league's "glory days." The so-called Common Good fund will be administered by a group of retired players approved by the court. A licensing agency will for the first time market retired players' publicity rights in conjunction with the NFL, making it easier for retired players to work with potential sponsors and advertisers. A new licensing agency, to be overseen by a board of retired players, will streamline that process for one-stop shopping. The league will also pay another $8 million in assorted costs associated with the settlement, including money needed to help set up the trust and pay attorneys. The settlement still needs court approval. Retired players will have the chance to review the settlement throughout the summer, when final approval is scheduled. See items at http://bit.ly/ZYSmUF and http://on.nfl.com/ZtAHW8

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.