Norma C. Izzo

Jennings, Strouss & Salmon, PLC

One E. Washington Street, Suite 1900

Phoenix, Arizona 85004-2554

(480) 495-2748

norma@jsslaw.com

Alternative Dispute ResolutionEffective Solutions for Disputes

“I was never ruined but twice: once when I lost a lawsuit, and

once when I won.”Voltaire

The Senate TableA short exercise

Different Methods of Solving the Problem

• Third Party Decider – Limited Options• Alex or Morgan

• Party Directed Process – Infinite Options• Common conference room with shared table• Physically move the table from office to office• Donate the table to Historical Society• Burn the table

Types of ADR Processes

Negotiation Collaborative Law

Cooperative Law

Mediation Arbitration

Court-connected Contractual

ADR TechniquesAdversarial

Party Control

Preventative Unassisted Third Party Assistance

Third Party Decision Making

Litigation

•Joint Planning

•Negotiation •Mediation •Moderated Settlement Conference

•Arbitration•Mini-trial

•Court trial

Advantages of ADR

• Preserves relationships• Provides durable resolution of disputes• Preserves confidentiality• Avoids establishing legal precedents• Interested parties have more control over the process

• Parties• Attorneys• Management

Principles Underlying ADR

• Prevention is the first goal• Speedy, direct resolution• Conflicts should be dealt with at the most informal level of

dispute resolution possible• Interest based• Right based• Power based

Trends

• Costs of litigation are increasing• Legal expertise is in demand, expensive and access is

limited• Most states across the US have instituted Ethical

Guidelines for Mediators and State ADR Acts• Judges are referring cases to mediation• 10% or less of lawsuits filed are actually resolved by a

judge or jury verdict• Even when “you know you’re RIGHT,” ADR still proves

beneficial• Beneficial for value-based relationships• High level of receptivity due to time and cost savings

When is ADR Appropriate?Situation ADR – NO ADR - YES

Need to set precedent X N/A

Need to establish a significant policy X N/A

Existing policy impact on outcomes High Limitations

Minimal limitations

Involvement of third party in dispute Third Party Disputants Only

A full or public record Public ConfidentialParties need a reality check or a party needs to “vent N/A Yes

Need for continued relationship between the parties No Yes

Criminality or fraud is involved Yes No

Mediation

“Mediation is a decision-making process in which the parties are assisted by a third

party, the mediator, who attempts to improve the process and assist the parties

in reaching an outcome to which all can assent.”

Laurence Boulle,

Mediation: Principles, Process, Practice (1996)

Process

• Expands conversation• Focuses on interests• Identifies common interests• Results in mutually satisfactory solutions• Maintains control of outcomes• Documents results in writing; signed by

parties involved

Value/Benefits

• No perfect contracts• Defines and facilitates mutual agreement for dispute

resolution process• Saves time and anguish• Enables parties to maintain control of outcomes• Maintains/Improves relationships• Results are in writing and requires agreement by

parties involved• Reduces court cases and related costs

Process Used

• Negotiation protocols• Explore respective interests• Generate options for mutual gain• Identify appropriate standards• Discuss risks associated with alternatives to

agreement• Decision makers & their attorneys meet to reach

agreement• Document agreement

Hepworth, Joseph M., Joint Self Mediation, Arizona ADR Forum Winter 2004 Issue, January 2004