ADR COMMITTEE
ALTERNATIVE DISPUTE RESOLUTION (ADR) You Know ADR, But What About EDR? Jessica K. Hew, Esq.
is a graduate of Loyola University of the South, magna cum laude, and Tulane University Law School, where she was article editor for the Tulane Environmental Law Journal. A member of OCBA since 1995, her practice focuses on commercial and business litigation, and real estate law. Jessica is a partner at Brennan, Manna & Diamond, and serves as a County, Circuit, and Appellate mediator and arbitrator in Florida State Courts and a mediator in the Orlando Division of the United States District Court.
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The Briefs
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esolution of Legal Disputes. Most lawyers are familiar with mediation and arbitration as alternative forms of dispute resolution. Contracts often require the parties to engage in non-binding mediation as a condition precedent to filing a Complaint or Demand for Arbitration. Local Rules of Court and Case Management Orders often include provisions for court-ordered mediation as a method of reducing the number of civil actions that proceed to trial. Lawyers have various tools available to help clients resolve their disputes. Strategic selection of the preferred dispute resolution method must be made by attorneys and their clients on a case-by-case basis.
While litigation is necessary and appropriate in certain circumstances, it certainly has disadvantages as pointed out by Abraham Lincoln: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good [person]. There will still be business enough. With these words of wisdom in mind, lawyers should be creative when deciding how to bring value to and best serve their clients.
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Traditional Mediation Even though it is non-binding, parties are often required to participate in mediation. They are required to act in good faith and have settlement authority. Often, Mediation Position Papers are exchanged between the parties, and confidential side letters are sent to the mediator, rather than individual confidential mediator-only communications. Opening statements have become disfavored because they can be polarizing and divisive. Lawyers and clients often have flexibility when setting the ground rules for mediation, including the weighty decision of selecting the mediator. It is
important to align the interests of both the parties and legal counsel, so they have a shared goal: resolution. Mediator Styles Mediators may be facilitators, evaluators, or both. Facilitators will communicate between the parties and use shuttle diplomacy to exchange demands and offers. They may avoid evaluation of the merits of the case to maintain neutrality and not appear biased. Evaluative mediators will often challenge the parties and their counsel to identify the weaknesses in their positions and the strengths of their opponent’s case. Such mediators may even provide the parties with a mediator’s recommendation regarding the terms of settlement. There are pros and cons to both styles. Guided Mediation Current trends in dispute resolution embrace an early, active, and ongoing role of the mediator. However, mediation clauses in standard form contracts often require mediation without providing direction as to specific techniques that should be considered or used. If early mediator engagement