Allen Schreiber on Mediation and Arbitration

The Real State of the Litigation Backlog in the Southeast

Sun, 26 Apr 2026 21:49:23 GMT

The Real State of the Litigation Backlog in the Southeast

Over the past several years, one theme has remained consistent across courts in the Southeast: the backlog is real—and it’s not going away anytime soon.

While some jurisdictions have made progress since the height of the pandemic, the ripple effects are still being felt in civil dockets across Alabama, Georgia, and the broader region. And for lawyers and their clients, the impact is more than just delay—it’s uncertainty, cost, and strategic pressure .

What the Backlog Actually Looks Like

The backlog isn’t always obvious from the outside. Courts are open. Hearings are happening. Trials are being set.

But beneath the surface:

Trial settings are pushed further out
Dockets are more crowded than ever
Judges are managing larger caseloads with limited flexibility
Last-minute continuances remain common

For many cases, what used to be a predictable timeline is now anything but.

The Hidden Cost of Delay

Delays don’t just affect scheduling—they reshape the case itself.

As timelines stretch:

Litigation costs increase
Witness availability becomes uncertain
Client fatigue sets in
Settlement positions become more entrenched

Perhaps most importantly, the value of resolution today becomes harder to compare to an uncertain outcome years from now .

Strategic Implications for Lawyers

The backlog has quietly shifted how cases should be evaluated.

It’s no longer just:“What is this case worth at trial?”

It’s:“What is the cost—financial and practical—of waiting to get there?”

In this environment, timing is no longer neutral.
It is a strategic variable .

Why Mediation Is Moving Earlier

As a result, more lawyers are turning to mediation earlier in the life of a case —sometimes even before suit is filed.

Not because the case is weak.
But because:

The delay is real
The cost is increasing
And clients want resolution on a timeline they can control

Early mediation allows parties to:

Evaluate risk sooner
Avoid unnecessary expense
And reach decisions before positions harden

The Opportunity in the Current Environment

Backlogs create pressure—but they also create opportunity.

Lawyers who adjust their strategy to account for:

Delay
Cost
And uncertainty are often able to deliver better outcomes for their clients .

Not by waiting for the system to catch up—but by working around it .

The litigation backlog in the Southeast is not just a scheduling issue.

It’s a strategic reality .

The question is no longer whether delay exists.
The question is how you choose to respond to it.

What Great Trial Lawyers Do Differently in Mediation

Fri, 10 Apr 2026 20:30:18 GMT

Habits that consistently lead to resolution

By Phillip McCallum | Schreiber ADR Neutral

After years in the courtroom and now at the mediation table, I’ve had the opportunity to work with hundreds of trial lawyers across a wide range of cases. Some are good. Some are very good. And a small group consistently stands out.

What separates great trial lawyers in mediation isn’t just their knowledge of the law or their courtroom skill. It’s how they approach the process itself —with discipline, preparation, and a clear understanding of what mediation is designed to accomplish.

Mediation is not trial. And the lawyers who recognize that tend to achieve better outcomes for their clients.

They Prepare for Resolution, Not Just Argument

Most lawyers come to mediation prepared to explain why they should win.

Great trial lawyers come prepared to resolve the case.

That means they’ve already:

Evaluated realistic ranges of outcomes
Identified risks in their own case
Thought through potential settlement structures
Prepared their client for negotiation—not just advocacy

They understand that success in mediation is not about proving a point. It’s about finding a path forward.

They Know Their Case—and Its Weaknesses

Every case has vulnerabilities.

Great lawyers don’t avoid them—they anticipate them.

They’ve asked themselves:

What is the other side’s strongest argument?
What facts are not in our favor?
How will a jury perceive this issue?

Because they’ve done that work in advance, they’re not caught off guard during mediation. Instead, they’re able to respond thoughtfully and adjust strategy as needed.

That level of self-awareness builds credibility—not only with the mediator, but often with the other side.

They Prepare Their Clients for the Process

One of the clearest differences I see is client preparation.

Great trial lawyers take the time to explain:

How mediation actually works
Why movement happens gradually
Why initial offers are rarely final offers
What compromise looks like in practice

Clients who are prepared for the reality of mediation are far more likely to stay engaged in the process—and far less likely to become frustrated when negotiations take time.

They Use the Mediator as a Resource

Inexperienced advocates sometimes view the mediator as a messenger.

Great trial lawyers understand that a good mediator is a strategic asset .

They:

Share key concerns and sensitivities in advance
Use the mediator to test arguments privately
Allow the mediator to help reframe positions
Trust the process enough to let it work

When lawyers collaborate with the mediator, rather than working around them, the process becomes more efficient and productive.

They Manage the Tone of the Negotiation

Mediation is as much about tone as it is about substance.

Great lawyers understand that:

Respect builds momentum
Posturing slows progress
Credibility matters more than volume

They advocate strongly for their clients without creating unnecessary friction. They know when to push—and when to pause.

That balance is often what keeps negotiations moving.

Final Thought

The lawyers who consistently achieve results in mediation aren’t just strong advocates.

They are strategic thinkers who understand that mediation is a different kind of problem-solving—one that requires preparation, judgment, and perspective.

At the end of the day, great trial lawyers don’t just try cases well.

They resolve them well.

If you’re preparing for an upcoming mediation and want to talk strategy, I’m always happy to help.

Why “We’ll See What the Judge Does” Is Often the Most Expensive Strategy

Fri, 27 Mar 2026 18:49:24 GMT

At some point in almost every case, you hear it:

“Let’s just see what the judge does.”

On its surface, it sounds reasonable. It suggests patience, confidence, and a willingness to let the process play out.

But in reality, it is often one of the most expensive decisions a client can make .

The Illusion of Certainty

Litigation gives the impression that clarity is just one more motion, one more deposition, or one more hearing away.

It rarely is.

Judicial decisions are, by nature:

Unpredictable
Fact-sensitive
Influenced by timing, presentation, and context

Waiting for a ruling in hopes of certainty often produces something very different: more uncertainty layered on top of sunk cost .

The Cost of Waiting

Every step forward in litigation comes with a price:

Additional attorney time
Expert costs
Discovery expenses
Client distraction and fatigue

But the more subtle cost is this: positions harden .

The longer a case continues:

Expectations become more entrenched
Narratives become more rigid
Flexibility becomes more difficult

By the time a ruling arrives, the case may be further from resolution—not closer.

The Risk of Binary Outcomes

Mediation allows for nuanced outcomes .
Litigation often produces binary ones .

When you defer decision-making to the court, you’re accepting:

Limited control
Limited creativity
And outcomes that may satisfy neither side

Even a “win” can feel incomplete when measured against time, cost, and risk.

A Better Question

Instead of asking:

“What will the judge do?”

A more useful question is:

“What is a good decision for the client today, given the risks?”

That shift—from prediction to decision-making—is where real value is created.

The Mediator’s Role

A good mediator helps parties evaluate:

Risk realistically
Cost honestly
And opportunity clearly

Not to push settlement—but to ensure that when a decision is made, it is intentional, informed, and aligned with the client’s goals .

Mediating Multi-Party and Multi-Insurer Cases Without Chaos

Fri, 20 Mar 2026 19:22:56 GMT

How to structure complex mediations for clarity, momentum, and resolution.

Multi-party and multi-insurer cases present a unique challenge in dispute resolution.

When multiple defendants, insurance carriers, layers of coverage, or competing interests are involved, mediation can quickly become less about negotiation—and more about coordination. Without structure, even well-intentioned parties can find themselves stuck in gridlock, waiting on each other rather than moving toward resolution. But complexity doesn’t have to mean chaos. With the right preparation, sequencing, and process management, even the most complicated cases can move efficiently toward settlement.

Complexity Changes the Dynamics of Negotiation

In a two-party mediation, movement is often linear. Offers and counteroffers move back and forth, and progress depends primarily on narrowing a single gap.

In multi-party cases, that dynamic shifts. Instead of one negotiation, there are often several happening simultaneously:

Plaintiff vs. multiple defendants
Defendants negotiating contribution among themselves
Primary and excess insurers aligning on exposure
Coverage disputes influencing settlement posture

Each of these conversations affects the others. Movement in one area may depend on progress in another.

Recognizing this early is critical. Multi-party mediations are not just about numbers—they are about managing interdependent decisions .

Sequencing Matters More Than Numbers

One of the most important tools in a complex mediation is sequencing —deciding which issues to address first and how negotiations should unfold.

In many cases, it is not productive to put all parties into the same negotiation at the same time. Instead, progress often comes from:

Resolving key liability questions first
Establishing a global settlement framework
Addressing coverage issues early where possible
Working through defendant contributions in stages

Strategic sequencing allows the mediator to build momentum piece by piece rather than forcing all parties to move simultaneously.

When done well, each step creates the conditions for the next.

Managing Competing Interests

In multi-insurer or multi-defendant cases, alignment is rarely immediate.

Carriers may evaluate risk differently. Defendants may have conflicting positions on liability. Coverage issues may influence willingness to contribute. These competing interests can create tension—not just between plaintiff and defense, but within the defense group itself.

Productive mediation requires acknowledging these differences without allowing them to derail the process.

This often involves:

Creating space for private discussions among aligned parties
Clarifying each party’s constraints and objectives
Helping parties understand how their position impacts the overall resolution

When parties see how their decisions affect the broader outcome, cooperation becomes more likely.

The Role of the Mediator as Process Manager

In complex mediations, the mediator’s role extends beyond facilitating negotiation. It becomes one of active process management .

That includes:

Coordinating communication across multiple groups
Maintaining momentum when negotiations slow
Identifying where movement is possible
Helping parties prioritize decisions
Keeping the focus on resolution rather than internal disputes

A well-managed mediation gives each party the space to be heard while keeping the process moving forward.

Without that structure, even small delays can compound and stall progress.

Preparation Is Critical

The most successful multi-party mediations begin well before the mediation date.

Effective preparation may include:

Pre-mediation calls with counsel to identify key issues
Clarifying insurance layers and authority
Understanding relationships among defendants and carriers
Identifying potential obstacles to resolution
Setting expectations about process and timing

When parties arrive with a shared understanding of how the mediation will proceed, the likelihood of productive negotiation increases significantly.

Final Thought

Multi-party and multi-insurer mediations are complex—but they are also some of the most rewarding when handled effectively.

With the right structure, sequencing, and communication, even the most layered disputes can move toward resolution.

Mediation, at its best, brings clarity to complexity.

If you’re preparing for a case involving multiple parties or insurers, I’m always happy to discuss strategy and how to structure the process for success.

The Economics of ADR: Cost Comparisons Clients Actually Care About

Fri, 13 Mar 2026 22:05:53 GMT

Why mediation and arbitration often make financial sense long before trial

By Phillip McCallum | Schreiber ADR Neutral

When lawyers evaluate cases, they often focus on liability, damages, and legal strategy. Clients, however, frequently begin with a different question:

What is this dispute going to cost us?

Legal fees, expert expenses, discovery costs, lost productivity, and the uncertainty of trial all factor into that calculation. For many businesses and individuals, the financial impact of prolonged litigation can become as important as the outcome itself.

That reality is one of the reasons alternative dispute resolution (ADR) —particularly mediation and arbitration—has become an essential part of modern legal strategy. While ADR is often discussed in terms of efficiency or flexibility, its economic impact is often the most compelling reason clients choose it.

The True Cost of Litigation

Traditional litigation involves multiple stages that carry significant financial commitments.

Even in relatively straightforward cases, parties often face:

Extensive document production and review
Depositions of key witnesses and experts
Motion practice and court hearings
Expert analysis and testimony
Trial preparation and trial itself

Each step requires time, coordination, and expense. In complex cases, litigation costs can quickly climb into six figures—or more—before a jury ever hears the case.

In addition to direct legal costs, businesses often face indirect economic burdens : executives pulled away from operations, employees preparing for depositions, and the ongoing uncertainty that unresolved disputes create.

Mediation: The Most Cost-Efficient Resolution Tool

Among ADR options, mediation is often the most economically efficient .

A mediation typically requires a fraction of the time and preparation associated with trial. Even when a case has already progressed through discovery, mediation provides an opportunity to resolve the dispute before additional litigation costs accumulate.

In many cases, mediation costs include:

Preparation by counsel
The mediator’s fee
Participation by decision-makers

Compared to the months—or years—of litigation that may follow, mediation often represents a relatively modest investment that can produce significant savings.

Even when mediation does not immediately resolve a case, it frequently narrows the issues and moves the parties closer to settlement, reducing the cost of continued litigation.

Arbitration: Efficiency with Finality

Arbitration occupies a different space within the ADR spectrum. While arbitration can sometimes approach the cost of litigation—particularly in complex matters—it often provides meaningful advantages.

Most arbitration proceedings benefit from:

More flexible scheduling
Limited discovery
Focused evidentiary presentations
Faster resolution timelines
Final, binding decisions without prolonged appeals

For clients seeking predictability and closure, arbitration can provide a controlled environment where disputes are resolved more efficiently than in traditional court proceedings.

The Value of Certainty

Beyond direct costs, ADR offers something clients often value even more: certainty .

Litigation outcomes can be unpredictable. Jury verdicts, appeal timelines, and procedural delays create a range of possible outcomes that are difficult to forecast with precision.

Mediation and arbitration allow parties to regain control over the process and the timeline. Whether through negotiated settlement or binding arbitration, ADR offers a path toward resolution that reduces prolonged uncertainty.

For businesses in particular, that certainty can be critical. It allows leadership to refocus on operations rather than ongoing legal disputes.

ADR as a Strategic Business Decision

The economics of dispute resolution are not just about legal budgets. They are about risk management, operational efficiency, and long-term planning.

When lawyers help clients understand the financial realities of litigation and the advantages of ADR, they empower them to make more informed decisions about how disputes should be resolved.

In many cases, mediation or arbitration is not simply an alternative to litigation—it is the smarter business decision .

Final Thought

At its core, dispute resolution is not just about who is right or wrong. It is about finding practical solutions that make sense for the people and organizations involved.

ADR allows parties to resolve conflicts in ways that are often faster, more efficient, and more predictable than traditional litigation.

When clients understand the economics behind these options, they are better equipped to choose the path that best serves their interests.

If you are evaluating whether mediation or arbitration might make sense for a particular dispute, I’m always happy to discuss strategy and timing.

Preparing Expert Witnesses for Mediation (Not Trial)

Thu, 05 Mar 2026 21:33:10 GMT

Why expert presentations should change in ADR

Expert witnesses often play a critical role in shaping how cases are evaluated. In many disputes—medical malpractice, construction claims, business valuation matters, or catastrophic injury cases—the opinions of experts frame the economic and factual boundaries of the case.

But one mistake I see frequently in mediation is this:

Experts are prepared for trial instead of mediation.

Those are two very different environments.

At trial, experts are advocates within a formal process. Their role is to persuade a jury, withstand cross-examination, and support a party’s legal theory. Mediation, however, is not about winning arguments. It is about helping decision-makers assess risk and move toward resolution.

When experts adjust their approach to fit the mediation environment, they can be enormously helpful in advancing productive negotiations.

Mediation Is About Risk Evaluation, Not Persuasion

In the courtroom, expert testimony is designed to convince a jury that one version of events is correct.

In mediation, the audience is different. The key decision-makers are usually attorneys, clients, insurers, or corporate representatives who are trying to answer a practical question:

What happens if this case goes to trial?

Expert opinions help inform that risk assessment. But lengthy technical explanations or highly adversarial presentations rarely move negotiations forward. Instead, the most effective experts in mediation focus on clarity—explaining the key drivers of their opinion and the assumptions behind it.

When experts help parties understand the strengths and vulnerabilities of a case, they add real value to the negotiation process.

Clarity Is More Valuable Than Technical Detail

Experts spend months developing reports filled with data, calculations, and specialized terminology. That level of detail may be necessary in discovery, but mediation benefits from a different approach.

Decision-makers often need a clear, simplified understanding of the expert’s core conclusions. What assumptions drive the analysis? What variables could change the outcome? What weaknesses might opposing experts attack?

Experts who can communicate these points succinctly—without overwhelming the room—help everyone better evaluate the case.

Clarity builds credibility, and credibility moves negotiations.

The Goal Is to Inform the Negotiation, Not Dominate It

Experts can play several useful roles in mediation. Sometimes they are present to answer targeted questions about technical issues. Other times they participate briefly to explain the framework of their opinion.

What tends to be less effective is when experts attempt to replicate courtroom testimony—long presentations, defensive posturing, or debates with opposing experts.

Mediation works best when expert input is focused and strategic , supporting the broader negotiation rather than becoming the centerpiece of the discussion.

Preparing Experts for the Mediation Environment

Attorneys can help their experts contribute more effectively by preparing them for the goals of mediation.

That preparation often includes:

Clarifying that mediation is about evaluating risk, not proving the case
Encouraging concise explanations of the most important issues
Identifying which assumptions are most vulnerable to challenge
Preparing visuals or summaries that communicate key points quickly
Discussing when it may be helpful for the expert to participate—and when it may not

When experts understand the context of mediation, they can support the negotiation process in ways that trial preparation alone does not.

The Mediator’s Role in Expert Discussions

In complex cases, mediators sometimes engage directly with experts to clarify technical issues or explore differences between competing opinions.

These conversations can be extremely helpful when they focus on narrowing the gap between positions rather than arguing the merits of the case. Often, a brief technical discussion between experts—guided by the mediator—can bring both sides closer to a realistic range for settlement.

Expert witnesses are essential in many complex disputes. But their value in mediation comes not from courtroom advocacy—it comes from helping parties understand risk.

When experts adjust their approach to focus on clarity, credibility, and practical implications, they become powerful contributors to resolution.

Preparing experts for mediation—not just trial—can make a meaningful difference in how negotiations unfold.

If you’re preparing for mediation in a complex case involving expert testimony, I’m always happy to discuss strategy and process.

Settlement Authority: Why Cases Stall at the Table

Sun, 01 Mar 2026 16:09:03 GMT

And how lawyers can prevent it.

One of the most common reasons mediations fail has nothing to do with liability, damages, or legal merit.

It comes down to a single issue:

The people in the room don’t have the authority to settle.

After years of litigating and mediating cases, I’ve seen promising negotiations stall repeatedly—not because the parties were far apart, but because someone needed to “check with the client,” “get committee approval,” or “call the carrier.” Momentum fades, frustration rises, and opportunities for resolution are lost.

Settlement authority is more than a procedural detail. It is often the difference between progress and paralysis.

Authority Is About Decision-Making Power, Not Just Numbers

When we talk about authority, we’re not simply referring to a dollar range. We’re talking about whether the decision-maker has:

The ability to evaluate risk in real time
The flexibility to respond to new information
Confidence to adjust expectations as negotiations evolve
Permission to finalize an agreement without delay

A representative with rigid, pre-approved limits may technically have “authority,” but lacks the practical discretion needed to close a deal.

The most productive mediations occur when the right people—those who truly own the risk—are engaged in the conversation.

Why Authority Breakdowns Happen

Authority problems rarely arise from bad intentions. They typically stem from structural or organizational realities:

Insurance layers or multiple carriers
Corporate approval chains
Government or institutional entities
Internal risk committees
Decision-makers unfamiliar with litigation dynamics

In some situations, authority is deliberately conservative early in mediation because stakeholders want to see movement before expanding parameters. That approach is understandable—but it can create bottlenecks if not managed carefully.

The Cost of Limited Authority

When authority is constrained, several things happen:

Momentum slows.
Trust erodes.
Negotiations become positional instead of problem-solving.

Parties may interpret limited movement as lack of good faith rather than structural limitation. Once that perception forms, rebuilding trust becomes difficult.

Equally important, time pressure increases. As the day progresses without meaningful authority expansion, participants may disengage emotionally and psychologically from settlement opportunities.

Preparing for Authority Before Mediation

One of the most effective ways lawyers can improve outcomes is by addressing authority well before mediation day.

That preparation includes:

Making sure the correct representatives will attend (or be available immediately)
Educating decision-makers on realistic risk ranges
Discussing best-case and worst-case outcomes in advance
Allowing room for movement beyond initial positions
Communicating clearly with the mediator about constraints

Clients and carriers often appreciate when counsel prepares them for the negotiation process—not just the legal arguments.

The Mediator’s Role in Authority Development

A skilled mediator does more than shuttle numbers between rooms. Part of the mediator’s job is helping decision-makers process new information and reassess risk as the day unfolds.

Authority is rarely static. It evolves with understanding.

When parties trust the mediator and feel confident in the process, they are more willing to expand authority and explore creative solutions. That trust is critical.

Settlement authority is not just a logistical issue—it’s a strategic one.

When the right people are empowered with the right information at the right time, cases move. When they are not, even strong cases can stall.

The most successful mediations happen when counsel and clients approach authority as part of preparation—not an afterthought.

If you’re preparing for mediation and want to discuss authority strategy or case readiness, I’m always happy to help.

Using Mediation to Preserve Business Relationships

Fri, 20 Feb 2026 19:52:35 GMT

ADR as a business tool, not just dispute resolution

When disputes arise between businesses, the immediate focus is often on liability, damages, and legal positioning. But for many companies, the underlying concern is something broader and more practical:

What happens to the relationship after the dispute?

Litigation is designed to determine fault and allocate responsibility. It is not designed to preserve partnerships, restore trust, or protect future opportunities. In contrast, mediation offers something uniquely valuable in the commercial context — the ability to resolve conflict while keeping the door open for continued business.

Over the years, I’ve seen many disputes where the parties entered mediation as adversaries but left with not only a settlement agreement, but a workable path forward. That outcome is rarely accidental. It happens when mediation is approached not simply as a legal requirement, but as a business strategy .

Conflict Does Not Always Mean the Relationship Is Over

Commercial disputes often arise between parties who have worked together successfully for years — vendors and customers, partners and investors, contractors and developers. The conflict may stem from a single project failure, market disruption, miscommunication, or changing economic pressures.

In those situations, the dispute itself does not necessarily mean the relationship has no value. In fact, many parties would prefer to continue working together if the immediate issue can be resolved fairly.

Litigation, however, tends to escalate conflict. Discovery requests, depositions, and motion practice can deepen mistrust and make reconciliation more difficult. By the time a case reaches trial, the relationship is often beyond repair — regardless of the outcome.

Mediation creates a different environment. It allows parties to address the dispute directly, acknowledge concerns, and explore solutions without the adversarial pressures of courtroom proceedings.

Mediation Allows Solutions Courts Cannot Provide

One of mediation’s greatest advantages in business disputes is flexibility. Courts are limited in the remedies they can order. Mediated agreements, by contrast, can include creative, forward-looking solutions that protect business interests.

For example:

Revised contract terms or project timelines
Payment structures tied to future performance
Continued supply or service agreements
Confidential business arrangements
Joint problem-solving commitments

These outcomes are often far more valuable than a damages award alone. They allow both sides to move forward with certainty while maintaining economic opportunity.

Preserving Reputation and Confidentiality

For businesses, disputes are rarely just financial. They carry reputational risk. Public litigation can expose internal operations, pricing structures, or strategic decisions that companies would prefer to keep private.

Mediation offers confidentiality — not only protecting sensitive information, but also allowing parties to communicate candidly without fear that statements will later be used against them.

That confidentiality often creates space for more honest dialogue, which is essential when the goal includes preserving a working relationship.

The Human Element of Business Disputes

Even in sophisticated commercial cases, disputes are still driven by people. Misunderstandings, assumptions, and communication breakdowns frequently play a role.

Mediation provides an opportunity for parties to clarify intentions, address frustrations, and reestablish professional respect. Sometimes simply being heard changes the dynamic enough to make resolution possible.

When parties understand that the goal is not to “win,” but to find a workable path forward, negotiations tend to shift from positional to problem-solving.

When to Consider Mediation for Relationship Preservation

Mediation is particularly effective when:

The parties have an ongoing or repeat business relationship
The dispute involves performance issues rather than intentional misconduct
Both sides benefit from continued cooperation
Confidentiality is important
Litigation costs threaten to exceed the value of the dispute
Leadership wants resolution without prolonged disruption

Approaching mediation early — before positions harden — often increases the likelihood that relationships can be preserved.

Final Thought

At its best, mediation does more than resolve disputes. It helps businesses protect what matters most — continuity, reputation, and future opportunity.

ADR is not simply an alternative to litigation. It is often a smarter business decision.

If you’re facing a commercial dispute where the relationship still has value, mediation may offer a path that litigation cannot.

The Psychology of Settlement

Mon, 09 Feb 2026 21:41:55 GMT

Why cases resolve based on people, not just law

Lawyers are trained to think in terms of facts, law, and leverage. Liability. Damages. Exposure. Precedent.

But after years of litigating cases and now mediating them, I’ve come to believe something simple—and often overlooked:

Most cases don’t settle because of legal analysis alone. They settle because of psychology.

You can have a strong brief, a compelling expert, and favorable case law—and still watch a mediation stall. Meanwhile, another case with murkier facts resolves in a single afternoon.

The difference usually isn’t the law.
It’s how people process risk, loss, pride, and uncertainty.

Understanding the human side of negotiation is often what separates a productive mediation from a long, frustrating day.

Settlement Is a Decision About Risk, Not Right and Wrong

At trial, someone wins and someone loses.
At mediation, everyone is trying to answer a different question:

“What is the risk of not settling today?”

Clients rarely evaluate cases the way lawyers do. They don’t think in jury instructions or summary judgment standards. They think about:

unpredictability
stress
business disruption
cost
reputation
time away from their lives or work

A perfectly defensible legal position can still feel like too much risk.

When we recognize that settlement is fundamentally a risk management decision , not a legal victory, conversations become more productive.

Emotion Is Always in the Room (Even When We Pretend It Isn’t)

We like to think commercial or insurance disputes are purely economic. They aren’t.

There’s always emotion:

A business owner who feels betrayed
A plaintiff who feels unheard
A corporate rep under internal pressure
A lawyer who has invested years in the case

Even sophisticated parties make decisions emotionally first and rationalize them later.

In mediation, ignoring that reality rarely works. Acknowledging it—respectfully—often unlocks progress.

Sometimes a party simply needs to feel that their story has been heard before they can move to numbers.

Anchoring and Expectations Matter More Than Math

Another psychological force at play is anchoring .

The first serious number on the table tends to shape every discussion that follows. Unrealistic demands or dismissive offers don’t just slow negotiations—they create emotional reactions that can harden positions.

When parties feel disrespected, they stop negotiating rationally.

The most effective advocates I see don’t just argue value—they manage expectations carefully and present numbers in ways that feel credible and defensible.

Credibility moves cases. Posturing rarely does.

The Best Lawyers Prepare Clients for the Experience, Not Just the Argument

One of the biggest predictors of settlement success has nothing to do with the merits of the case.

It’s client preparation.

When clients walk into mediation expecting:

a quick win
a dramatic concession
or validation that they’re “right”

…they’re often disappointed.

When they walk in understanding:

negotiation takes time
movement is gradual
compromise is part of the process
and settlement is about certainty, not victory

…resolution becomes much more likely.

The lawyers who consistently settle cases are the ones who prepare clients psychologically—not just legally.

At its core, mediation isn’t just a legal exercise. It’s a human one.

Facts and law frame the conversation.
But psychology drives the outcome.

The more we understand how people evaluate risk, process loss, and respond to perceived fairness, the more effective we become at helping them reach resolution.

After all, disputes aren’t resolved by spreadsheets or briefs.

They’re resolved by people.

If you’re preparing for a challenging mediation and want to talk strategy, I’m always happy to help think through both the legal and human sides of the case.

�� Schedule with Phillip McCallum: https://www.schreiberadr.com/phillip-mccallum

Trends in Verdicts and Settlement Values in Alabama

Fri, 30 Jan 2026 21:11:41 GMT

What Today’s Outcomes Mean for Tomorrow’s Negotiations

Each year, new verdicts and settlement data give trial lawyers and mediators a clearer view of how Alabama juries and courts are responding to evolving claims. While no two cases are alike, tracking trends in verdicts and settlements can provide a valuable compass for case valuation and negotiation strategy—especially as mediation continues to grow as a preferred path to resolution.

At Schreiber ADR, we work with attorneys and their clients across the state—resolving disputes in venues ranging from Jefferson and Madison counties to rural districts where jury dynamics vary widely. Here’s what we’re seeing in Alabama today—and how it can impact the way you prepare and position your next case for resolution.

1. Higher Verdicts in Plaintiff-Friendly Venues—But With Caveats

Some of Alabama’s urban counties, including Jefferson and Montgomery, have seen a noticeable uptick in verdict values , particularly in personal injury and medical negligence cases. This is often driven by:

Juror frustration with insurance carriers and corporate defendants
Increased comfort awarding non-economic damages
Sophisticated plaintiff presentations that blend emotional appeal with data

However, these high verdicts are still the exception , not the rule. In most counties—particularly outside the I-65 corridor—jury conservatism remains strong, especially in cases lacking clear causation or economic harm. Attorneys entering mediation should consider the venue’s leanings, but also reality-check those assumptions with recent comparable results.

2. Insurers Are Reassessing Settlement Posture Early

We’re seeing more insurers and defense counsel entering mediation earlier in the litigation lifecycle—often within 6–9 months of filing. This is driven in part by:

Increased litigation costs
Staff counsel capacity constraints
Uncertainty in jury behavior post-COVID

Carriers want to understand risk earlier, and they’re more open to bracketed negotiations , structured settlements, and creative resolution strategies—especially when early mediation includes a well-prepared demand and documentation.

3. Wrongful Death and Catastrophic Injury Cases Remain Unpredictable

In Alabama, where wrongful death damages are punitive-only, valuing these cases at mediation remains one of the most nuanced challenges . A recent trend we’ve seen is greater divergence in valuation expectations:

Plaintiffs valuing reputational risk, family trauma, and perceived corporate indifference
Defendants focused on lack of economic loss or absence of intent

These cases benefit greatly from early mediation or pre-mediation neutral evaluation to ground both sides in likely outcomes and frame appropriate ranges.

4. Employment and Business Disputes Settling Sooner

Across 2024, there was a clear trend toward faster resolution in employment disputes , especially those involving:

Retaliation and whistleblower claims
Non-compete and trade secret enforcement
Wage and hour disputes

Alabama juries remain mixed in their willingness to award damages in employment matters. As a result, savvy counsel are using early mediation to avoid prolonged discovery and reputational fallout—particularly with institutional clients.

What This Means for Your Practice

If you’re preparing for mediation or arbitration in Alabama, these trends suggest that resolution strategies must now:
✅ Consider venue-based risk in more nuanced ways
✅ Reflect growing client sensitivity to litigation cost
✅ Leverage early mediation windows where possible
✅ Frame damages presentations with recent outcomes in mind

Understanding where Alabama verdicts and settlements are trending is not just academic—it’s strategic. At Schreiber ADR, we bring both statewide perspective and case-by-case judgment to every mediation table. Whether you’re managing a wrongful death case in Tuscaloosa or a partnership dispute in Huntsville, we help you negotiate with clarity, context, and credibility.

Designing the Mediation Process to Fit the Case (Not the Other Way Around)

Fri, 23 Jan 2026 01:46:02 GMT

One of the most common—and costly—mistakes in mediation is treating every case the same.

Not every dispute needs the same structure, the same agenda, or even the same format. Yet too often, mediation is approached as a one-size-fits-all event rather than a custom-designed process .

The best mediations are not run. They are engineered .

Why Process Design Matters

Every case is different:

Some are emotionally charged.
Some are technically complex.
Some involve many parties and decision-makers.
Some are simple—but politically difficult.

If you use the same mediation structure for all of them, you’re guaranteed to leave value on the table.

Good process design reduces:

Posturing
Fatigue
Mistrust
And wasted time

And increases:

Decision quality
Efficiency
And the likelihood of resolution

Key Questions That Should Shape the Process

Before mediation day, I spend time answering questions like:

Who actually has authority to settle?
Do the parties need to hear each other—or be separated immediately?
Is this a case about money, or about something else?
Would pre-mediation calls help narrow issues?
Is this better handled in person, virtual, or hybrid?

The answers to these questions should determine the structure , not the other way around.

Examples of Custom Process Design

A multi-party case may need phased negotiations instead of one long day.
A highly emotional case may benefit from early private sessions before any joint discussion.
A technically complex dispute may require pre-mediation issue framing or expert summaries .
A decision-maker-heavy case may need staggered attendance instead of everyone waiting all day.

The Mediator’s Real Value

A mediator’s value is not just in facilitating conversations .
It’s in designing a process that makes good decisions possible .

When the process fits the problem, people negotiate differently.
They listen differently. They decide differently.

Mediation should never feel like forcing a case into a template.

The best results come when the process is built around the case—not when the case is forced into the process.

When Litigation Becomes About the Lawyers Instead of The Clients

Thu, 15 Jan 2026 02:14:15 GMT

Most lawyers begin every case with the same goal: to serve their client’s best interests.

But over time, in long and hard-fought litigation, something subtle—and dangerous—can happen. The case slowly stops being about the client’s problem and starts becoming about the lawyers’ battle.

I see this more often than many would like to admit.

How It Happens

Litigation is, by design, adversarial. It rewards:

Strong positions
Aggressive advocacy
Winning motions
And proving the other side wrong

None of that is inherently bad. But when a case stretches on for months or years, it’s easy for the focus to shift from “What’s best for the client?” to:

“We can’t give in now.”
“After everything we’ve fought over?”
“We’ve already invested too much.”

At that point, sunk cost replaces strategy.

The Warning Signs

You can often tell when a case has crossed this line:

Settlement discussions are framed as “concessions” instead of solutions
Every issue becomes a matter of principle
The emotional temperature in the room is higher than the financial one
The client’s business or personal goals fade into the background

When that happens, litigation stops being a tool and starts becoming the objective.

The Real Cost

Clients don’t measure success in motions won or briefs filed.They measure it in:

Time
Stress
Money
Disruption
And uncertainty

When a case becomes lawyer-centered instead of client-centered, those costs quietly multiply.

The Mediator’s Role

One of the most important roles of a mediator is to recenter the conversation :

What does the client actually need?
What problem are we trying to solve?
What does a good decision look like today—not two years from now?

Good mediation is not about declaring winners. It’s about helping people make clear, forward-looking decisions in imperfect circumstances.

Final Thought

Strong advocacy is essential.But the best lawyers never lose sight of who the case is really for.

When litigation stays client-centered, resolution becomes possible.

Why Some “Good Cases” Still Don’t Settle

Thu, 08 Jan 2026 18:24:50 GMT

Every lawyer has seen it: a strong case, good facts, capable counsel, and enough money on the table to resolve it. And yet—it doesn’t settle.

When cases like this fail to resolve, it’s rarely because the law is unclear. More often, it’s because human decision-making is far less rational than we’d like to believe.

Here are the most common reasons good cases still don’t settle:

1. The Case Has Become About Identity, Not Risk

Over time, cases stop being about exposure and start being about being right .
Lawyers and clients alike can become emotionally invested in the narrative. When that happens, settlement begins to feel like surrender—even when it’s objectively the best business decision.

2. Fear of Regret Outweighs Fear of Loss

Many parties don’t evaluate settlement based on expected value. They evaluate it based on what they’ll feel if they’re wrong .

“What if we settle and the jury would have given us more?”
“What if we pay this and could have won?”

This fear of future regret often freezes decision-making more effectively than any legal argument.

3. Anchoring Has Quietly Taken Over

The first serious number in a case—whether a demand, a reserve, or an early valuation—often becomes psychological gravity . Even when new information emerges, parties stay tethered to old numbers long past their usefulness.

4. The Process Rewards Fighting, Not Resolving

Litigation trains people to:

Defend
Attack
Win motions
Prove points

It does not train people to make good resolution decisions under uncertainty .

By the time mediation arrives, many parties are excellent litigators—but poor risk managers.

5. The Last 10% Is Emotionally Harder Than the First 90%

Most deals fail near the finish line .
Why? Because the final concessions feel personal, not mathematical. The closer you get, the more each move feels like a loss instead of a solution.

The Mediator’s Real Job

A mediator’s job isn’t just to move numbers.
It’s to help people make decisions in the presence of fear, pride, fatigue, and uncertainty .

Good cases don’t settle because they’re good.
They settle because the decision-makers are ready to decide.

Final Thought

If a “good case” isn’t settling, the obstacle is rarely legal.

It’s human.

Ethics in Hybrid ADR Models

Fri, 19 Dec 2025 20:58:28 GMT

As alternative dispute resolution continues to evolve, so do the formats that parties and counsel use to resolve cases. In recent years, “hybrid” ADR models like med-arb , arb-med , and evaluative mediation have gained traction—offering streamlined processes that combine elements of both mediation and arbitration.

These models can deliver significant efficiencies in complex, high-stakes disputes, particularly when parties want finality without a courtroom. But with this flexibility comes a unique set of ethical challenges for both neutrals and advocates.

Understanding those challenges—and how to navigate them—is key to preserving party trust and maintaining the integrity of the process.

What Is a Hybrid ADR Model?

A hybrid ADR model combines two distinct dispute resolution methods—typically mediation and arbitration —either simultaneously or sequentially.

Common formats include:

Med-Arb : The neutral begins as a mediator. If mediation fails, they transition into the role of arbitrator and issue a binding decision.
Arb-Med : The neutral begins as an arbitrator but pauses the process to mediate before issuing a final award.
Evaluative Mediation : The mediator offers opinions about likely legal outcomes or case value to help parties assess risk and reach agreement.

While these models offer flexibility and speed, they also blur traditional role boundaries—which can trigger ethical concerns if not managed carefully.

The Ethical Tension: Neutrality vs. Dual Roles

The core ethical concern in hybrid ADR is role confusion and potential bias . When a neutral shifts from mediator (facilitator) to arbitrator (decision-maker), parties may worry:

Will the neutral base their ruling on confidential information from mediation?
Can the neutral remain impartial after seeing party behavior behind closed doors?
Will candid participation in mediation later be used against them?

These concerns are valid—and they must be addressed before the process begins.

Best Practices for Ethical Hybrid ADR

To navigate these ethical complexities, experienced neutrals and counsel should work together to set clear ground rules upfront. Best practices include:

1. Informed Consent All parties must understand the process fully—including what role the neutral will play at each stage, and how confidential information will (or won’t) be used. Consent should be explicit and documented.

2. Clear Procedural Agreements Outline the scope, timing, and triggers for any role shifts. For example:

Will the mediator/arbitrator be permitted to reference mediation discussions if arbitration follows?
Will the parties waive confidentiality protections?
Are “sealed envelopes” allowed to separate what is seen in each phase?

3. Optional Recusal Clauses Some hybrid agreements allow either party to object to the neutral continuing as arbitrator if the mediation fails—protecting trust in the arbitration’s impartiality.

4. Alignment with Institutional Rules When using AAA, JAMS, or another body, be sure the hybrid process aligns with their ethics rules. Many organizations have specific guidance on med-arb procedures.

When Hybrid ADR Works Best

Hybrid models are especially useful when:

Parties want a single process to resolve the dispute in one sitting
There are tight timelines or budgetary constraints
The dispute involves ongoing business relationships or confidentiality concerns
There is mutual trust in the neutral’s judgment and fairness

But these benefits only materialize when ethical guardrails are firmly in place.

Hybrid ADR models can be powerful tools—efficient, adaptive, and outcome-driven. But they require more than procedural savvy. They require ethical clarity and deep trust in the neutral .

At Schreiber ADR , I work with parties to structure hybrid processes that maximize flexibility without compromising fairness. When done right, these models offer the best of both worlds—resolution and finality, with integrity at the core.

When to Recommend Early Mediation: Rethinking the Timeline for Resolution

Thu, 11 Dec 2025 22:22:04 GMT

As litigation grows more complex and trial calendars stretch further into the future, one question appears with increasing frequency:

When is the right time to mediate?

For many lawyers, mediation has long been viewed as something that belongs later in the case—after discovery, after expert reports, after motion practice. But in today’s legal landscape, early mediation is not simply an alternative; it is often a strategic advantage .

Through years of mediating commercial, insurance, employment, and personal injury matters, I’ve observed that early mediation, when chosen wisely, can materially shift outcomes—reducing cost, controlling risk, and improving client satisfaction. But it only works when the timing aligns with the realities of the case.

Below are insights on when early mediation works, when it doesn’t, and how lawyers can use early intervention to enhance both efficiency and outcomes.

Early Mediation Works When the Facts Are Clear Enough to Frame the Risk

Contrary to belief, you don’t need a fully developed record to hold a productive mediation. What you do need is a baseline understanding of:

The core liability issues
The nature and extent of damages
The key risks for each side
Any insurance or coverage parameters

If the parties already understand the outlines of the dispute, mediation can begin the process of narrowing issues, testing assumptions, and exploring ranges—saving months of unnecessary discovery.

Early mediation is especially effective when the dispute turns more on valuation and business judgment than on factual uncertainty.

The Business Case for Early Mediation Is Stronger Than Ever

Clients—whether corporate or individual—are increasingly sensitive to the cost of litigation. Even a small window of depositions or expert discovery can consume tens of thousands of dollars and months of calendar time.

Early mediation:

Reduces litigation spend
Protects business relationships
Improves predictability in budgeting
Allows counsel to redirect time to higher‑value matters
Can resolve disputes before parties become entrenched

Today’s clients appreciate proactive strategy, and recommending early mediation often demonstrates professional judgment and forward thinking.

Early Mediation Fails When Critical Information Is Missing

While early mediation can be a powerful tool, recommending it too soon can have the opposite effect—hardening positions rather than opening the door to resolution.

Mediation should be approached cautiously when:

Liability depends on factual clarity that has not been developed
Ongoing medical treatment or damages remain too uncertain
Coverage questions could undermine authority to settle
Parties need the discipline of discovery to reality-test expectations

The goal is not to mediate “early” for the sake of efficiency; it is to mediate intelligently , at a moment when movement is possible.

Early Mediator Involvement Doesn’t Always Require Early Mediation

One of the overlooked tools in early intervention is early mediator consultation —a short, informal conversation with counsel (joint or separate) before committing to mediation.

This allows the mediator to:

Assess whether the case is ready
Identify what information needs to be exchanged
Recommend timing or staged mediation approaches
Help lawyers align expectations without pressure

In many cases, early involvement smooths the path for a productive mediation later.

Conclusion: The Best Time to Mediate Is When the Case Is Still Movable

Early mediation is not for every dispute—but when timed correctly, it offers a powerful opportunity to resolve conflict before cost, emotion, and entrenchment escalate.

For lawyers managing demanding caseloads, tight calendars, and cost-conscious clients, early mediation is often the difference between controlling the case and being controlled by it.

If you’re considering whether a case is ready for early mediation, I’m always happy to discuss strategy and timing.

Getting It Right from the Start: The Value of Pre-Arbitration Case Management Conferences

Wed, 26 Nov 2025 20:26:42 GMT

In arbitration, structure is strategy.

While one of arbitration’s greatest strengths is its flexibility, that same quality can be its greatest vulnerability when not paired with clarity and shared expectations. A well-executed pre-arbitration case management conference (CMC) sets the tone for efficiency, fairness, and control—before discovery issues, procedural misunderstandings, or scheduling breakdowns can derail progress.

At Schreiber ADR, I regularly serve as a neutral in high-stakes commercial and complex disputes. The best-run arbitrations nearly always begin with an intentional, collaborative case management call. Here’s why it matters—and what attorneys should prioritize.

The Why: Front-Loading the Process Prevents Friction Later

Arbitration isn’t litigation-lite—it’s a different animal altogether. And while the parties agree to sidestep the courtroom, they don’t always come aligned on the process that replaces it.

A pre-arbitration conference ensures:

Procedural issues are addressed before they become disputes.
Discovery expectations are set, not assumed.
Hearing dates are locked before calendars fill.
The scope of the arbitration is clearly defined (especially in multi-party or multi-issue matters).

Rather than waiting for something to go wrong and seeking clarification midstream, the CMC lets everyone build the foundation before the first exhibit is exchanged.

The How: Best Practices for a Productive Case Management Conference

1. Collaboratively Set the Rules of the Road The arbitration agreement may name a governing body (AAA, JAMS, etc.), but it often lacks specificity around timing, procedure, or evidentiary standards. The CMC is the opportunity to clarify or customize:

Which rules apply
Whether discovery will be limited (e.g., number of depositions, expert disclosures)
Whether motions will be permitted, and on what timeline
Format of the final hearing (in-person, remote, hybrid)

This is not the time for posturing—it’s the time for shared structure.

2. Agree on a Realistic Timeline Trial lawyers know how fast a docket can fill. In arbitration, where timelines are more fluid, firm dates for discovery, disclosures, and the final hearing are essential. A case management call forces calendar discipline early and prevents delay tactics later.

3. Address Electronic Discovery and Confidentiality Early Complex cases involving electronically stored information (ESI) can spiral without defined protocols. The CMC is the right time to outline how ESI will be handled and how confidentiality (especially for trade secrets or sensitive data) will be protected.

4. Discuss the Scope of the Arbitrator’s Authority If enforcement, sanctions, or interim measures are on the table, the parties should agree early on how those decisions will be handled. The neutral’s authority and limitations should be outlined up front to avoid procedural challenges later.

Final Thought: Structure Creates Trust

In arbitration, the neutral doesn’t just interpret the facts—they shape the experience. When parties leave a well-run case management conference, they walk away with confidence: that the process will be efficient, fair, and focused.

At Schreiber ADR, I view the CMC as the first and most important act of service in any arbitration I oversee. It’s where the groundwork is laid not just for resolution, but for a dispute process that respects the time, resources, and intelligence of everyone involved.

If you’re preparing for an arbitration and want to ensure it starts strong, I’m happy to help you get there.

Zoom Mediation Done Right

Wed, 19 Nov 2025 15:52:41 GMT

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The rise of virtual mediation wasn’t just a response to necessity—it was the beginning of a new era in dispute resolution. And it’s here to stay.

What began as a workaround during the pandemic has matured into an efficient, cost-effective, and flexible format that attorneys, clients, and neutrals alike continue to embrace. At Schreiber ADR, I’ve conducted hundreds of mediations via Zoom and other virtual platforms. While the medium has changed, the fundamentals of good mediation remain the same—with a few added layers of preparation and nuance.

Here’s what I’ve learned about making virtual mediation successful, seamless, and just as productive as being in the room together.

The Medium Is Different—But the Mission Is the Same

Zoom mediation doesn’t weaken the power of the process—it just demands a new level of intention. The best virtual mediations feel personal, organized, and efficient, but that’s not by accident. Just like courtroom advocacy requires adapting to the forum, virtual mediation requires purposeful adjustments to process and presence.

It starts with the basics:

Ensure all parties have tested their connection, camera, and microphone ahead of time.

Send out an agenda and tech instructions in advance.

Make sure decision-makers and clients are clearly identified and available without interruption.

A neutral can facilitate much of this with a pre-mediation email or short technical run-through the day before.

Breakout Rooms Are a Feature, Not a Flaw

One of the most powerful tools in virtual mediation is the private breakout room. It mimics the physical separation of traditional caucusing, while offering flexibility for confidential side conversations and consultant access.

For attorneys, this means having the ability to communicate candidly with your client without losing proximity to the process. For mediators, breakout rooms offer a dynamic way to manage tone, timing, and strategic flow.

Pro tip: If you’re using Zoom, rename each room clearly—“Plaintiff + Counsel,” “Defense + Carrier”—so everyone knows where they’re meant to be. And always have a backup plan for reentry if someone drops off.

Screen-Sharing as a Strategic Advantage

In traditional mediation, you’re limited to what you can print or carry into the room. On Zoom, screen sharing becomes an on-the-fly visual tool. Want to highlight a line in a contract, display a damages chart, or walk through a timeline? With proper pacing, screen sharing makes your argument more tangible—and helps bridge any misunderstanding between parties.

Just be sure that what you're sharing is prepared, clean, and appropriate for mediation (not litigation). Avoid legalese and focus on clarity.

Maintain Professional Presence

It may sound obvious, but virtual etiquette matters.
Appear on camera, in a quiet space, dressed professionally.
Maintain eye contact with the camera when speaking—it builds connection.
Avoid multitasking; presence is still a critical form of advocacy.
A well-prepared attorney with a present demeanor is just as impactful on Zoom as they are at the mediation table.

Leverage the Flexibility of Virtual Mediation

Zoom opens the door to new opportunities:
Clients who are out of state can participate fully.
Mediation days can be split over multiple sessions to allow reflection.
Experts or insurers can join only for the part of the day they’re needed.

In many cases, this makes virtual mediation not just an alternative—but a preferable format.

Mediation has always been about meeting parties where they are—factually, emotionally, and legally. Zoom simply expands that concept into a virtual environment. When done right, Zoom mediation is not a compromise—it’s a strategic tool.

At Schreiber ADR, we’re proud to offer seamless, secure, and successful virtual mediations—and we’ll continue to refine the process to meet the evolving needs of litigators and their clients.

If you’re considering Zoom for your next mediation, let’s talk about how to make it work for your case.

Negotiating Damages in Complex Commercial Cases

Tue, 11 Nov 2025 00:19:31 GMT

In commercial litigation, the path to resolution is rarely a straight line. While liability often dominates early-stage conversations, seasoned trial lawyers know that settlement hinges just as much—if not more—on how damages are presented. In complex business disputes, where the damages are multi-faceted, often abstract, and sometimes speculative, a poorly framed damages discussion can derail even the most promising negotiations.

Damages are more than numbers. They are narrative. They represent a story of impact—lost opportunities, interrupted performance, breached expectations, and economic consequence. When we fail to tell that story in a cohesive and credible way, we miss the opportunity to anchor the other side—and the mediator—in the reality of what resolution actually means.

The Power of Narrative and Credibility

One of the most common missteps I see is the assumption that damages calculations speak for themselves. In reality, they require context. A lost profits claim isn’t just about revenue spreadsheets—it’s about the customer base that was lost, the market disruption that couldn’t be overcome, or the strategic opportunity that was derailed.

This is why credibility in presentation is critical. The numbers must align with the facts and with one another. If your demand letter presents one set of calculations, your expert report another, and your mediation brief a third, you've created an opening for doubt—not just about the numbers, but about the strength of the case as a whole.

Damages, like legal theories, need to evolve with discipline. A consistent and transparent methodology from the start of the case to the mediation table signals strength—even when the damages themselves are contested.

Strategic Framing Over Tactical Demands

When approaching a mediation, counsel should think beyond the question of how much and focus instead on how to frame value. This means coming prepared to discuss a range—not just a top-line ask. It’s rare in a commercial case that one number will resolve the matter. More often, the parties need to understand how a range of scenarios could play out—and what those risks are worth.

By offering a well-reasoned valuation band (grounded in data, assumptions, and economic logic), parties create room for movement without appearing uncertain. This also gives the mediator flexibility to explore offers without triggering positional resistance. And when those assumptions are pressure-tested in caucus, the parties retain credibility—because they’ve already acknowledged complexity and risk.

Expert Witnesses: Educators, Not Advocates

Expert witnesses play a unique role in damage discussions—but only when their role is properly calibrated. In mediation, the objective isn’t to impress the mediator with technical sophistication; it’s to help all parties understand the economic landscape. That means experts should be prepared to educate, not dominate.

The best experts I’ve worked with are those who can explain their models in plain English and help clarify—not complicate—the road to resolution. Their presence in mediation can be invaluable, especially when parties are struggling to reconcile valuations or understand key cost drivers. But they should support the conversation, not take it over.

The Mediator’s Role in Testing Assumptions

One of the most underutilized aspects of mediation is the neutral’s ability to help test damage models in real time. As a mediator, I’ve often helped parties reality-check their assumptions, stress-test their projections, and uncover unstated fears that might be inflating demands or suppressing offers.

A productive mediation gives each party a confidential space to ask: What if I’m wrong? What if we don’t win on this issue? What if the court awards half of what we’re seeking? When lawyers and clients are willing to engage with those questions openly—even hypothetically—it becomes easier to see the value of resolution now versus the risk of trial later.

Damages as a Conversation, Not a Contest

At its best, a commercial mediation doesn’t just resolve numbers—it reframes value. When damages are approached strategically, presented credibly, and explained in a business-forward way, the settlement table becomes a place of possibility, not paralysis.

At Schreiber ADR, I work with parties every day to bridge the gap between legal exposure and business reality—using mediation not just as a procedural step, but as a strategic tool for closure.

If you're preparing for a complex commercial mediation and want to discuss strategies around damages, I’d welcome the opportunity to help.

Timing is Everything: Mediation Windows That Work

Mon, 03 Nov 2025 18:29:14 GMT

When to Mediate for Maximum Efficiency and Settlement Potential

If there’s one universal truth in dispute resolution, it’s this: the timing of mediation can determine whether the case settles or stalls. Even the best-prepared mediation will underdeliver if it’s held too early—or too late.

Over decades of litigation and mediation experience, I’ve observed that parties often focus heavily on how to mediate, while overlooking when to mediate. But timing isn't just logistical—it's strategic. Knowing when to initiate mediation can preserve relationships, control costs, and unlock resolutions that may otherwise be missed.

Here’s what I’ve learned about the optimal mediation windows that maximize efficiency and settlement potential.

1. Too Early? You Risk Resistance

Early mediation is often encouraged for cost-saving reasons—but it can backfire if the parties haven't gathered enough information to properly evaluate risk. When liability, damages, or coverage remain uncertain, parties are more likely to dig in rather than move toward resolution.

Watch for:

Incomplete discovery
Ongoing medical treatment
Disputed liability or factual gaps

Tip: Early mediation can still work when both parties agree on basic facts and want to avoid prolonged litigation. Pre-suit or pre-discovery mediations may benefit from structured risk framing and bracketed offers.

2. Too Late? Emotions and Costs Can Escalate

On the flip side, waiting until the courthouse steps can make mediation more difficult—emotionally and financially. Parties are often entrenched, legal fees have piled up, and the flexibility needed to settle may be diminished.

Risk Zone: Trial dates that loom too close can turn mediation into a formality rather than an opportunity.

3. The Sweet Spot: Post-Key Discovery, Pre-Pretrial

In many cases, the best time to mediate is after:

Critical depositions have occurred
Expert reports are exchanged
Motion practice has clarified legal theories

At this stage, parties better understand their own case—and the risks of continuing. Settlement ranges become more realistic, and mediators can facilitate informed, productive negotiations.

Strategic Bonus: You can use this window to engage in "shadow discovery" or informal exchanges that streamline mediation prep without full court involvement.

4. Special Cases: Multi-Party, Insurance-Heavy, or Complex Litigation

In high-stakes or multi-defendant cases, the mediation window may require more coordination. Be mindful of:

Coverage positions and insurer involvement
Lender or lienholder sign-offs
Government agency timelines (e.g., regulatory approvals)

In these cases, the timing isn’t just about the legal facts—it’s about making sure the right players are aligned and at the table.

5. Flexibility Is a Strategy, Too

Sometimes, mediation needs to happen early to meet business objectives, public relations concerns, or cash flow constraints. That’s okay—but be transparent with the mediator about your timing strategy. A skilled neutral can manage expectations and help both sides shape a process that works for the moment, even if it takes multiple sessions.

Final Thoughts: Mediation Isn't One-Size-Fits-All

Timing mediation correctly requires more than a court order or case schedule—it requires insight, communication, and a deep understanding of the case trajectory.

The Strategic Use of Arbitration Clauses

Tue, 28 Oct 2025 21:22:30 GMT

Drafting and Leveraging Clauses to Minimize Litigation Risks

When properly drafted, an arbitration clause can serve as a powerful tool to streamline dispute resolution, minimize exposure to prolonged litigation, and provide clarity and control in otherwise unpredictable circumstances. However, poorly written or overly broad clauses can have the opposite effect—leading to enforceability issues, costly challenges, or even backfiring entirely.

At Schreiber ADR, here’s what we believe every lawyer and business decision-maker should consider when strategically drafting and leveraging arbitration clauses .

Tailor the Clause to the Nature of the Relationship

Too often, arbitration clauses are lifted from templates without consideration for the parties’ actual risk profile, contract value, or likely disputes. A strategic arbitration clause reflects the nature, duration, and complexity of the relationship at hand.

For example:

High-volume, low-value contracts may benefit from streamlined, binding arbitration to avoid clogging the courts.
Sophisticated commercial transactions may require multi-tiered ADR , with mediation first, followed by arbitration with defined rules.

�� Strategic Tip: Consider a clause that routes different types of disputes to different forums. Not all issues need to go to arbitration.

Specify the Rules, Forum, and Governing Law—Clearly

Ambiguity is the enemy of efficiency. A strong arbitration clause defines:

What rules apply (AAA, JAMS, ICC, UNCITRAL, or custom procedures)
Who the administering body is
Where the arbitration will take place
Which state’s or country’s law will govern

�� Bonus Clause: Appoint a method for selecting arbitrators (e.g., “each party selects one, and those two choose a third”) to avoid selection disputes.

Address the Scope of Arbitrability Up Front

One of the most common post-dispute problems is a disagreement about whether a claim is even subject to arbitration . Avoid this by including language that expressly delegates questions of arbitrability to the arbitrator, not the court.

��️ Enforceability Boost: Consider a “delegation clause” that makes this intention clear and supported by current U.S. Supreme Court precedent (e.g., Henry Schein, Inc. v. Archer & White Sales, Inc.).

Think Through Procedural Choices

Here’s where strategy really shines. Ask yourself:

Do you want a single arbitrator or a panel?
Should discovery be limited or governed by specific rules?
Will there be a reasoned award or a bare ruling ?
Should proceedings be confidential?

By spelling these out, parties avoid uncertainty—and arbitrators gain clarity about their authority and scope.

Include Provisions that Encourage Resolution

Some arbitration clauses go beyond logistics and aim to incentivize early resolution . Examples include:

Fee-shifting for frivolous claims
Mediation-first provisions (cooling-off periods before arbitration)
Offers of judgment or final-offer (“baseball”) arbitration

These mechanisms reduce the adversarial tone and make arbitration more than just “private litigation.”

Final Thought: Arbitration Is a Tool—Not a Blanket Solution

Arbitration isn’t inherently faster, cheaper, or better than litigation. It can be , when drafted with intentionality and applied to the right context .

At Schreiber ADR, our experienced neutrals are available to consult on clause drafting, serve as arbitrators, or assist in designing dispute resolution programs that minimize legal risk without sacrificing fairness or efficiency.

Let’s make arbitration work smarter—for your clients and your business.

Mediation Preparation Tips for Trial Lawyers: How to Position Your Case and Client for Success at the Mediation Table

Mon, 20 Oct 2025 21:31:11 GMT

For many trial lawyers, mediation is a powerful opportunity—not just a procedural checkpoint. When well-prepared, mediation can deliver results that avoid the uncertainty and costs of trial, all while preserving relationships and client dignity.

At Schreiber ADR, our neutrals have worked with thousands of attorneys across a wide spectrum of disputes. We've seen what works, and what doesn't. Here are our top preparation strategies for trial lawyers to make the most of their mediation day:

1. Know What You Want—and What You’ll Accept

Start with clarity on your ideal outcome and your bottom line . More importantly, understand the zones in between. What trade-offs might be acceptable? What matters most to your client—speed, certainty, confidentiality, cash flow?

Pro Tip: Create a “mediation range” that your client understands and signs off on before the day of mediation. Surprises rarely lead to resolution.

2. Submit a Meaningful, Strategic Mediation Statement

A mediation statement is not a trial brief. It should outline key facts, legal theories, damages, and—most importantly— the path to resolution . Focus on what the neutral needs to know to help you settle , not just to win your case.

Tip: Include exhibits that tell the story, not just the liability. A chart of damages. Key correspondence. A timeline. This helps your neutral visualize the pressure points.

3. Prepare Your Client—Emotionally and Strategically

Even sophisticated clients can feel blindsided if they walk into mediation without context. Set expectations early:

Mediation is a negotiation, not a trial.
Patience is part of the process.
No one “wins”—but everyone can walk away with certainty.

Goal: Help your client shift from rights-based thinking to interests-based negotiation.

4. Anticipate the Other Side’s Leverage Points

Understand your own vulnerabilities—and the strengths of the opposing party. How might they view your client’s position? What are they likely to highlight? This perspective helps you and the neutral move from positions to creative solutions.

Remember: Good mediators challenge both sides. Come prepared to be challenged constructively.

5. Bring the Right People to the Table

Settlement cannot happen if the decision-maker isn’t in the room—or on the call. Make sure your client has authority , or that the actual decision-maker is available by phone or Zoom.

Don’t let a logistics misstep prevent resolution.

6. Leverage Your Neutral

Your mediator is not a passive observer—they are a strategic tool. Let them know in advance if there are sensitive client issues, private vulnerabilities, or off-the-record messages you want them to carry. A well-briefed neutral is far more effective.

Great mediations start well before mediation day. When attorneys come to the table prepared—with their strategy, their client, and their message— resolutions become not just possible, but probable.

At Schreiber ADR , our experienced neutrals understand the nuances of effective mediation and are committed to helping parties reach meaningful, durable outcomes.

Advanced Settlement Enforcement Mechanisms: How to Secure Long-Term Compliance and Minimize Post-Settlement Disputes

Fri, 03 Oct 2025 17:30:10 GMT

In the world of civil litigation, achieving a settlement is often celebrated as the finish line. But for many parties, that moment is just the beginning of another chapter: ensuring the terms of settlement are honored and enforced . Without thoughtful structuring and enforcement mechanisms in place, even the most carefully negotiated agreements can unravel—leading to renewed conflict, additional costs, and frustration for all involved.

This post explores several advanced settlement enforcement strategies that neutrals and attorneys should consider to promote long-term compliance and reduce the risk of post-resolution disputes.

1. Built-In Performance Milestones & Timelines

Including clear, time-bound performance obligations within a settlement agreement (e.g., staggered payments, deliverables, corrective actions) gives parties a roadmap for success—and provides the court or a neutral with enforceable benchmarks should compliance issues arise.

�� Example: “Party A shall remit $25,000 in three installments due on the 1st of each month, beginning [Date]. Any missed payment beyond 5 business days will trigger stipulated penalties.”

2. Liquidated Damages & Stipulated Penalties

Agreed-upon financial consequences for non-compliance can be powerful deterrents. When drafted carefully, liquidated damages clauses or stipulated penalties can simplify enforcement by preemptively setting terms for breaches—especially in cases where proving actual damages would be complex or expensive.

⚠️ Caution: These provisions must be reasonable and not punitive to be enforceable under most state laws.

3. Incorporating Arbitration or Binding Mediation for Enforcement

For settlements that anticipate ongoing interaction or the possibility of interpretive disputes, consider designating a neutral to oversee or arbitrate future enforcement issues . This allows for faster resolution of compliance challenges without returning to the court system.

�� Tip: Add an “enforcement neutral” clause—appointing a mediator or arbitrator from the outset who is already familiar with the case history.

4. Confession of Judgment or Consent Judgment Clauses

In appropriate jurisdictions, parties may agree to a confession of judgment or consent judgment , allowing for immediate court enforcement if the breaching party defaults. These mechanisms serve as a strong compliance incentive and bypass the need for a new lawsuit.

⚖️ Note: This must be handled carefully and ethically, ensuring all parties are represented and fully understand the implications.

5. Court Retention of Jurisdiction

Ensure the court retains jurisdiction over the settlement agreement by incorporating appropriate language into the dismissal order. This provides a direct enforcement pathway through the same court—without the need to file a new action.

�� Sample Language: “The Court retains jurisdiction to enforce the terms of the parties’ settlement agreement as incorporated herein.”

The best settlements don’t just resolve disputes—they prevent new ones from forming. At Schreiber ADR and in my practice we work closely with attorneys and parties not only to reach agreement, but to structure resolutions that last.

Whether through strategic clauses, post-settlement check-ins, or retained enforcement jurisdiction, taking a proactive approach to settlement enforcement protects everyone’s investment in resolution.

Negotiating Damages in Complex Commercial Cases: Strategies for Effective Resolution

Wed, 17 Sep 2025 23:20:48 GMT

When disputes in complex commercial cases reach mediation or arbitration, one of the most critical—and often most contentious—issues is the calculation of damages. Unlike straightforward personal injury claims, commercial damages can involve lost profits, business interruption, valuation disputes, and intricate financial modeling. For parties and their counsel, the way damages are quantified and presented can determine whether the case resolves or stalls. Here are several strategies I’ve found most effective in navigating these challenges:

1. Anchor Damages in Clear Methodology

Credibility begins with transparency. Whether you are using discounted cash flow analysis, market comparisons, or replacement cost models, the methodology must be consistent and defensible. Overly aggressive or speculative calculations risk undermining the party’s entire case.

2. Use Expert Testimony Strategically

Experts play a pivotal role in simplifying complex numbers for decision-makers. But expert reports should do more than overwhelm with spreadsheets—they should tell a story. Clear executive summaries, visuals, and real-world comparisons often make expert testimony more persuasive than dense financial tables alone.

3. Anticipate Counterarguments Early

In commercial cases, the other side will almost always challenge assumptions: market trends, growth projections, or mitigation of damages. By stress-testing numbers in advance and addressing weaknesses up front, parties can demonstrate confidence and avoid being caught off guard.

4. Simplify for the Neutral

Arbitrators and mediators are not accountants. Boiling down complex models into digestible charts, timelines, or “best case/worst case” scenarios increases understanding and trust. Clear visuals often succeed where lengthy financial narratives fail.

5. Balance Aggression with Credibility

High demands may set a strong bargaining position, but credibility is often more persuasive than bold numbers. Parties who present damages in a way that feels grounded and realistic are more likely to move a neutral—and the opposing party—toward resolution.

Negotiating damages in commercial disputes is as much about strategy and clarity as it is about numbers. By presenting well-founded methodologies, anticipating challenges, and simplifying the complex, lawyers and neutrals alike can transform financial conflict into resolution.

Ethics in Hybrid ADR Models: Navigating the Boundaries

Wed, 10 Sep 2025 19:38:25 GMT

As Alternative Dispute Resolution (ADR) evolves, hybrid models like Med-Arb (mediation followed by arbitration) and Arb-Med (arbitration paused for mediation) have gained popularity. These approaches offer efficiency and flexibility—but they also raise serious ethical considerations , particularly when one neutral shifts between roles.

1. Preserving Neutrality

The greatest challenge in hybrid ADR is ensuring that the neutral remains impartial. In mediation, parties often share confidential information they would never disclose in arbitration. If the mediator later becomes the arbitrator, can they truly “un-hear” sensitive disclosures? Maintaining fairness requires careful planning and informed party consent.

2. Informed Consent and Transparency

At the outset, it is critical to explain the hybrid process in plain terms. Parties must understand the differences between mediation and arbitration, the potential risks of role-switching, and how confidentiality will be protected. Written agreements outlining these boundaries help avoid misunderstandings later.

3. Clear Boundaries on Confidentiality

To protect the integrity of the process, neutrals should set explicit rules on what information can carry over between roles. Some models allow “firewall” structures where one neutral mediates, and another arbitrates, eliminating the risk of compromised confidentiality.

4. Avoiding the Perception of Bias

Even the appearance of bias can undermine the legitimacy of ADR. If one party believes their confidential disclosures swayed the neutral, trust in the process evaporates. Building safeguards—such as limiting ex parte discussions and documenting role transitions—preserves credibility.

5. Best Practice: Tailor the Process

Hybrid ADR is not one-size-fits-all. Parties and counsel should tailor the approach to the dispute’s complexity, the relationship between parties, and the desired outcome. Thoughtful customization ensures efficiency without sacrificing fairness.

Hybrid ADR models hold tremendous promise—but without strict ethical guardrails, they risk eroding the very trust that makes mediation and arbitration effective. By prioritizing neutrality, transparency, and informed consent, mediators and arbitrators can deliver both efficiency and fairness in hybrid proceedings.

When to Recommend Early Mediation: Saving Time, Costs, and Relationships

Wed, 03 Sep 2025 01:36:38 GMT

Litigation is designed to resolve disputes, but the journey through discovery, motions, and trial can be long and expensive. Increasingly, lawyers and their clients are recognizing that early mediation can achieve the same resolution—without the heavy cost of prolonged litigation. The question is: how do you know when to recommend early mediation?

Here are a few key signs that early intervention may be the right move:

1. The Core Facts Are Not in Serious Dispute

If liability or the main issues of the case are largely clear, there’s little to gain from prolonged litigation. Early mediation can focus on resolving damages or terms of settlement rather than waiting months for the court process to unfold.

2. The Costs of Discovery Outweigh the Benefits

Complex cases often involve expensive discovery: depositions, expert witnesses, and electronic data review. When the costs of discovery threaten to exceed the potential gain, early mediation provides a way to save resources while still reaching a fair outcome.

3. Preserving Relationships Matters

In employment disputes, business partnerships, or family-owned company conflicts, the ongoing relationship between parties is valuable. Early mediation can reduce hostility and maintain a foundation for future collaboration.

4. Insurance and Risk Management Considerations

When insurers are involved, early resolution often aligns with their interest in cost containment. Identifying cases where liability exposure is evident can prompt insurers and defense counsel to welcome mediation sooner rather than later.

5. Courts Are Backlogged

Post-pandemic court delays continue to affect many jurisdictions. Early mediation can provide certainty in months instead of years, giving clients closure and predictability.

Recommending early mediation isn’t about rushing resolution—it’s about recognizing when litigation will add more cost than value. By identifying the right cases for early intervention, attorneys can deliver efficiency, preserve relationships, and provide real value to clients.

Pre-Arbitration Case Management Conferences: Structuring Early Discussions for Efficient Proceedings

Tue, 26 Aug 2025 16:35:29 GMT

Arbitration is often chosen for its efficiency—but without early planning, proceedings can still become unnecessarily complex and costly. That’s where a Pre-Arbitration Case Management Conference (CMC) comes in. By structuring early discussions between parties, counsel, and the arbitrator, these conferences set the stage for a smoother, more predictable process.

Here’s how a well-managed CMC can improve arbitration outcomes:

1. Clarifying Procedural Rules

One of the primary benefits of a case management conference is clarifying which arbitration rules will apply. By addressing these details up front, parties avoid confusion later and ensure the process aligns with expectations.

2. Narrowing the Issues

Early conferences allow parties to define the scope of disputes, reducing time spent on tangential or duplicative claims. Identifying key legal and factual issues at the outset can help streamline discovery and focus the hearing.

3. Setting Timelines and Deadlines

Scheduling discovery, witness exchanges, and hearing dates early in the process prevents delays. Clear deadlines keep the arbitration on track and reduce the risk of last-minute disputes over timing.

4. Managing Discovery and Evidence

Unlike litigation, discovery in arbitration is limited. A CMC gives parties the chance to agree on the scope of discovery—such as the number of depositions, electronic evidence protocols, and expert witness submissions—ensuring proportionality.

5. Promoting Cost Efficiency

By addressing procedure, scope, and scheduling early, parties reduce inefficiencies that drive up costs. A carefully planned CMC helps deliver on arbitration’s promise of being faster and less expensive than litigation.

Pre-Arbitration Case Management Conferences are not just procedural formalities—they are critical to ensuring efficiency, fairness, and predictability in arbitration. By investing in structure at the outset, parties save time, reduce costs, and increase the likelihood of a fair and enforceable award.

Advanced Settlement Enforcement Mechanisms in Mediation and Arbitration

Wed, 13 Aug 2025 16:36:51 GMT

Exploring creative clauses and enforcement options beyond standard language.

In mediation and arbitration , reaching a settlement is only half the victory. The real measure of success is whether that agreement remains enforceable over time. Without strong enforcement terms, even the most promising resolution can unravel—leaving parties back in dispute.

Here’s how lawyers, mediators, and arbitrators can strengthen settlement enforceability using advanced strategies that go beyond basic contract drafting.

1. Consent Awards and Consent Judgments

In arbitration, converting a settlement into a consent award gives it the same enforceability as an arbitral decision under laws like the Federal Arbitration Act or the New York Convention for international disputes. In mediation, filing a consent judgment in court ensures the agreement can be enforced immediately, without starting a new lawsuit.

2. Liquidated Damages Clauses

When obligations are time-sensitive or difficult to value, a liquidated damages clause defines the financial consequences of a breach. To withstand legal scrutiny, these clauses must be specific, reasonable, and tied to actual anticipated harm—not punitive.

3. Security Interests and Escrow Accounts

Using escrow arrangements or securing performance with collateral can protect against default, particularly in high-stakes or high-risk settlements. These safeguards create a built-in enforcement tool that avoids lengthy court battles.

4. Step-In Rights and Self-Help Remedies

In commercial cases, including a step-in provision allows a party to take over certain obligations if the other side defaults, then recover costs. This approach speeds resolution without waiting for judicial enforcement.

5. Multi-Jurisdiction Enforcement Planning

When parties operate across state or national borders, it’s crucial to anticipate where enforcement might be needed. Agreements should align with the enforcement laws of those jurisdictions from the outset.

Advanced enforcement tools turn a settlement from a handshake into a legally secure, enforceable resolution. Whether through consent awards, escrow, or liquidated damages , the key is planning enforcement at the same time as negotiation.

Confidentiality vs. Transparency in Arbitration: Striking the Right Balance

Wed, 30 Jul 2025 15:57:03 GMT

One of arbitration’s greatest strengths is confidentiality. Yet in some cases, that very privacy can raise questions about fairness, public interest, and accountability. Understanding when to protect sensitive details—and when limited transparency may serve justice—is key to responsible arbitration practice.

Here’s how I approach the balance:

1. Confidentiality as a Default Strength

Arbitration is often chosen because it allows parties to resolve disputes outside of the public courtroom. This protects proprietary information, trade secrets, reputations, and ongoing business relationships. For most commercial disputes, confidentiality allows for a more candid and efficient resolution.

2. Transparency When Public Interest Is at Stake

In matters involving regulatory issues, significant public impact, or precedent-setting questions, transparency may enhance legitimacy. While parties may still choose to keep proceedings private, issuing redacted or summarized rulings can help preserve public confidence—particularly when enforcement requires court confirmation.

3. Party Autonomy Is Paramount

Unlike court litigation, arbitration allows parties to define the scope of privacy through their agreement or institutional rules. As a neutral, I encourage parties and counsel to address confidentiality early, ensuring there’s clarity on what will remain private—and why.

4. Best Practices for Balancing Both

Draft detailed confidentiality clauses in the arbitration agreement.
Consider a confidentiality order when handling sensitive evidence.
Discuss with parties whether any portion of the award or record may be made public.
Where transparency is desired, create mechanisms for controlled disclosure without compromising sensitive data.

Arbitration doesn't require an all-or-nothing approach. With thoughtful planning, it’s possible to maintain confidentiality while allowing for transparency where it serves justice and the greater good. The key is intention, clarity, and balance.

Post-Arbitration Remedies and Challenges

Thu, 24 Jul 2025 16:32:42 GMT

Arbitration often brings welcome closure to disputes, but the process doesn’t always end with the final award. After the arbitrator issues a decision, there are important next steps—and potential challenges—that parties and their counsel should be prepared to navigate.

Here’s what to expect post-award:

1. Finality—With Limited Exceptions

Arbitration awards are generally binding and final. Courts give significant deference to the arbitrator’s judgment, and grounds for appeal or vacatur are narrow. Dissatisfaction with the outcome is not enough—challenges must fall under specific statutory exceptions such as fraud, corruption, misconduct, or arbitrator bias.

2. Confirming the Award

To make the award enforceable like a court judgment, parties may file a motion to confirm it. This step transforms the arbitrator’s decision into a judgment that can be enforced through collection procedures if necessary. In most jurisdictions, this is a streamlined process, assuming no objections are raised.

3. Modifying or Correcting the Award

Some errors—such as clerical mistakes or miscalculations—can be corrected through a motion to modify. However, substantive changes to the award’s outcome are rarely permitted. It’s essential to act quickly, as the timeframe for modification is often brief.

4. Vacating an Award: A High Bar

Challenging an arbitration award is difficult by design. Under the Federal Arbitration Act and state equivalents, only extreme circumstances—such as evident partiality or procedural misconduct—will lead a court to vacate an award. Strategic preparation and proper selection of a neutral arbitrator help avoid this scenario entirely.

Understanding the post-arbitration landscape helps lawyers and clients manage expectations and avoid surprises. Whether confirming, correcting, or responding to an award, it's important to act promptly and with clear legal guidance. A well-run arbitration process should offer both closure and enforceability—provided the path forward is clearly understood.

Handling Power Imbalances in Mediation

Thu, 17 Jul 2025 13:39:34 GMT

Power imbalances are a reality in many mediations. One party may have greater legal knowledge, more financial resources, or simply more confidence navigating the process. If not addressed, these imbalances can lead to unfair outcomes or failed resolutions.

As a mediator, my role is to ensure a fair process—one where all parties have an equal opportunity to be heard, to understand, and to reach informed decisions. Here are several tactics I use to level the playing field:

1. Build Psychological Safety Early

Creating a neutral, respectful environment from the beginning encourages participation. I take time in private caucuses to help less-experienced parties understand the process, ask questions, and feel comfortable voicing concerns. This emotional support builds confidence.

2. Adjust the Format as Needed

Sometimes, joint sessions can exacerbate power dynamics. If one party dominates the discussion, I may shift to caucuses sooner or restructure the format to ensure balance. Flexibility is essential to avoid intimidation or silence from one side.

3. Clarify, Summarize, and Reframe

When one side has more legal or technical knowledge, I take time to summarize key points, ask clarifying questions, and reframe complex ideas in accessible language. This ensures that everyone is tracking the negotiation and fully informed.

 4. Address Imbalances Privately

I often speak with counsel confidentially to raise concerns about tone, pace, or tactics. A candid reminder that the mediation must remain collaborative—not adversarial—can make a big difference.

Power imbalances don’t have to derail resolution. With the right structure and approach, a skilled mediator ensures that every party—not just the strongest—can leave the table with a fair and enforceable agreement.

Crafting Durable Settlement Agreements

Thu, 10 Jul 2025 22:49:55 GMT

A successful mediation or arbitration session can fall apart after the handshake if the settlement agreement isn’t clear, complete, and enforceable. Crafting a durable settlement agreement is just as critical as reaching the resolution itself.

Here are a few key principles I emphasize to ensure the agreement holds up:

1. Avoid Vague Language
Ambiguity is the enemy of finality. Terms like “reasonable” or “as soon as possible” may feel cooperative in the moment but can lead to disputes later. Every critical point—payment dates, conditions, deliverables—should be specific and measurable.

2. Plan for Contingencies
What if a payment is late? What if a party files bankruptcy? What if a lien isn’t cleared? Durable agreements anticipate what could go wrong and include clearly defined responses. Think of this as preventative maintenance for resolution.

3. Address Confidentiality and Non-Disparagement
If confidentiality or public statements are part of the deal, spell them out. Courts won’t enforce vague understandings. Include what can and can’t be said, to whom, and with what consequences.

4. Consider Enforceability Jurisdiction
Will the agreement be filed with a court? Is it subject to arbitration enforcement rules? Consult with counsel on which forum and law will govern enforcement to avoid jurisdictional surprises.

5. Don’t Rush the Finish Line
After a long day of negotiation, parties may be tempted to sign a quick summary and fill in details later. I always encourage finishing a complete written agreement before adjourning—even if it means ordering dinner and staying late. Closure should be built to last.

A strong agreement makes the hard work of mediation or arbitration meaningful. With precision, foresight, and clarity, your resolution becomes not just an agreement—but a lasting one.

Time Management in Complex Mediations: Keeping the Process Productive

Tue, 01 Jul 2025 23:46:23 GMT

When mediations involve multiple parties, complex claims, or significant damages, the process can stretch into full-day or even multi-day sessions. Without careful time management, these mediations risk losing momentum, exhausting participants, or missing key opportunities for resolution.

Here are several strategies I use to keep complex mediations focused, efficient, and productive:

1. Pre-Mediation Planning
A successful day begins before anyone logs in or enters the room. I work with counsel to confirm attendance, ensure key decision-makers are present (virtually or in person), and clarify the structure of the day.

2. Set the Agenda Early
Establishing a clear schedule—including breaks—helps everyone pace themselves. Setting expectations around when joint sessions, caucuses, and settlement discussions will occur gives the day structure and reduces decision fatigue.

3. Prioritize the Critical Issues
With multiple parties, not every issue deserves equal airtime. I help identify the most important questions early and guide parties toward resolving those first. This often sets the tone for resolving secondary disputes more quickly.

4. Manage Breaks Strategically
Long mediations require mental clarity. I build in intentional breaks and use them to recalibrate, clarify progress, and keep emotions in check. Sometimes, the best insights happen during the walk to get coffee.

5. Keep the End in Sight
As the day progresses, I help parties focus on the goal: resolution. Timely reminders of what’s at stake and what’s been accomplished can re-energize even tired teams and bring negotiations across the finish line.

Complex doesn’t have to mean chaotic. With the right structure, pacing, and focus, even the most complicated mediations can lead to clear, fair, and final resolution.

The Intersection of Mediation and Mental Health Awareness

Fri, 27 Jun 2025 21:10:38 GMT

In mediation, we're not just navigating legal issues—we're often navigating human pain. Emotional stress, unresolved trauma, and mental health challenges can significantly impact how parties engage with the mediation process. Recognizing these elements is essential to facilitating meaningful resolution.

Understanding Emotional Readiness
Not all parties enter mediation ready to compromise. Emotional readiness can be affected by recent losses, ongoing pain, or the psychological burden of litigation itself. Mediators must assess emotional tone and remain flexible in pacing to avoid escalating stress.

Creating a Trauma-Informed Space
For parties who have experienced trauma—such as in personal injury or wrongful death cases—traditional negotiation strategies may feel adversarial or overwhelming. A trauma-informed mediator recognizes triggers, offers options (such as private caucuses), and avoids unnecessarily retraumatizing approaches.

Managing Stress Responses
Stress can manifest as anger, withdrawal, or rigidity. When I see signs of emotional distress, I pause the process, offer a reset, or shift to a different setting if needed. Empathy and calm communication are key to de-escalating emotional reactions.

Encouraging Support
When appropriate, I encourage parties to have mental health or personal support during the process—especially in emotionally charged matters. Attorneys and mediators alike should understand when emotional support is a strength, not a weakness.

Mental health and mediation are more intertwined than many realize. By being aware of trauma, stress, and emotional readiness, mediators can help ensure a process that feels safe, fair, and ultimately successful. A resolution that respects a person’s mental state is a resolution built to last.

Building Trust in Virtual ADR Settings

Mon, 16 Jun 2025 20:55:33 GMT

Virtual ADR (Alternative Dispute Resolution) is here to stay. Whether you're mediating over Zoom or arbitrating in a hybrid format, the screen shouldn't create a barrier to building trust. In fact, with thoughtful preparation and attention to detail, trust and credibility can thrive in virtual environments.

Here are several key ways I’ve found effective for maintaining rapport and professionalism in online settings:

1. Start with Clarity and Comfort: Set expectations at the outset. Explain how the day will go, who will be present, how caucuses will work, and ensure everyone is comfortable with the technology. A brief pre-session tech check helps reduce stress and avoid delays.

2. Focus on Eye Contact and Engagement: Look into the camera when speaking, not at the screen. It creates the sense of direct eye contact. Keep your tone professional but personable. Active listening—nodding, summarizing, asking clarifying questions—still matters on Zoom.

3. Professional Setting, Professional Tone: Dress and act as you would in person. Maintain a clean background, eliminate distractions, and avoid multitasking. This reinforces respect for the process and the parties.

4. Use Breakout Rooms Thoughtfully: Breakout rooms simulate private caucuses. Check in often, keep momentum going, and make sure parties don’t feel forgotten. Clear time management and frequent updates foster confidence.

5. Follow Up Matters: Post-session follow-up via phone or email reinforces the mediator’s commitment and signals continuity, especially if full settlement wasn't reached.

Trust is foundational to resolution. In virtual ADR, trust is built through preparation, attention, and clear communication. With the right approach, resolution can feel just as personal and meaningful as it does in a physical room.

AI and Predictive Analytics in ADR – A New Tool for Valuing Disputes

Wed, 14 May 2025 20:55:16 GMT

As artificial intelligence (AI) becomes more sophisticated and accessible, its influence on the legal profession—and particularly alternative dispute resolution (ADR) —is accelerating. One of the most promising applications of AI in this space is the use of predictive analytics to assist in case valuation during mediation or arbitration.

While AI will never replace the professional judgment and human understanding central to dispute resolution, it can serve as a powerful tool to help parties and their counsel enter negotiations with data-informed expectations.

What is Predictive Analytics in ADR?

Predictive analytics involves the use of algorithms to analyze vast datasets—including jury verdicts, settlement values, case durations, and judge/arbitrator behaviors—to forecast likely outcomes of legal disputes. When integrated into the ADR process, this data can support more realistic valuations and help break through impasse rooted in overly optimistic or uninformed expectations.

Platforms such as Premonition, Westlaw Edge, and Lex Machina already offer predictive tools based on real-world case data. Used ethically, these insights can guide mediators and arbitrators in helping parties better understand risk, evaluate legal positions, and consider resolution options grounded in precedent.

Benefits and Ethical Considerations

✅ Improved Transparency : Parties are better prepared to engage in good-faith negotiation.

✅ Data-Informed Strategy : Lawyers can align valuation with comparable outcomes.

✅ Ethical Use Is Key : Neutrals must ensure that AI tools are used to supplement—not replace—neutral judgment, and that any biases in data sources are acknowledged and mitigated.

As a mediator and arbitrator, I see predictive analytics not as a shortcut, but as a support system —a way to help parties approach the table with clarity, confidence, and context. In the right hands, AI-driven tools can enhance the resolution process and deliver outcomes that are better understood—and more widely accepted.

The Future of ADR Credentialing and Standards

Wed, 30 Apr 2025 16:19:29 GMT

As mediation and arbitration continue to grow as preferred alternatives to litigation, the expectations for professionalism, consistency, and accountability in ADR have never been higher. Across both domestic and international forums, there is a clear and accelerating shift toward formal credentialing, structured peer review, and ongoing education for mediators and arbitrators. The future of ADR is not just about experience—it’s about earned and verified excellence.

Rising Expectations from the Legal Community

Attorneys, general counsel, and institutional clients are increasingly asking:
➡ “Is this neutral trained in this specific subject matter?”
➡ “Do they follow a recognized code of conduct?”
➡ “Are they current on the latest legal and procedural developments?”

The answer to these questions matters more than ever. In a competitive field, credentialing helps ensure quality, consistency, and trust in the process—and makes selection easier for counsel.

Credentialing Bodies Leading the Way

Organizations such as the American Arbitration Association (AAA), JAMS, NADN, and international institutions like the Chartered Institute of Arbitrators (CIArb) have raised the bar by offering certification programs, codes of ethics, and peer-reviewed panel standards. Many courts now also prefer or require neutrals with verifiable training or membership in professional organizations.

Continuing Education is No Longer Optional

With rapid changes in technology, ethics, and legal standards, ongoing training is essential. Mediators and arbitrators who stay current can better manage complexity, adapt to client expectations, and uphold best practices in increasingly specialized disputes.

For ADR professionals, the future is clear: credentialing is credibility. For counsel and parties booking mediators and arbitrators, verifying those credentials is an essential part of due diligence. As the field continues to mature, those who invest in professional development will lead the way in delivering fair, efficient, and trusted dispute resolution.

The Impact of Remote Work on Employment Disputes – ADR’s Expanding Role in the Modern Workplace

Thu, 24 Apr 2025 22:37:45 GMT

The shift to remote and hybrid work has transformed the modern employment landscape—and with it, the nature of employment disputes. While flexibility and autonomy have increased for many employees, so have legal gray areas, misaligned expectations, and challenges in workplace communication. ADR is uniquely positioned to meet this moment, providing employers and employees with an efficient, private, and flexible path to resolution.

How Remote Work is Reshaping Employment Conflicts

Blurred Boundaries and Policy Enforcement
From off-the-clock work to expense reimbursement and surveillance claims, the physical separation between workplace and home has created new legal questions about compensation, privacy, and employer oversight.Disputes in this space are often nuanced, requiring fact-specific analysis and a deep understanding of workplace culture—something mediation facilitates more effectively than rigid litigation.

Breakdowns in Communication and Team Dynamics
Remote environments can lead to increased misunderstandings, missed performance feedback, or perceived favoritism, all of which can escalate into claims of discrimination, retaliation, or constructive dismissal. Mediation provides a space to reestablish communication and rebuild trust before conflict becomes irreparable.

Return-to-Work and Accommodation Disputes
As organizations phase employees back into office settings—or make remote work permanent—conflicts over accommodations, job duties, and policy shifts are increasing. ADR offers a path to personalized, non-adversarial solutions, allowing both sides to craft agreements that work in the new normal.

Why ADR Matters Now More Than Ever

Mediation and arbitration provide the speed, privacy, and adaptability needed in today’s rapidly evolving employment context. For legal counsel advising employers or employees, bringing in a neutral experienced in both traditional and remote work dynamics is essential.

Blockchain and Smart Contracts in Arbitration – A New Era of Enforceability and Efficiency

Thu, 17 Apr 2025 17:32:26 GMT

In recent years, blockchain technology and smart contracts have begun to reshape how parties enter, monitor, and enforce arbitration agreements. What was once a theoretical intersection of law and tech is now emerging as a practical reality for ADR professionals and attorneys seeking greater clarity, efficiency, and security in their arbitration processes.

Understanding Blockchain in ADR

At its core, blockchain is a secure, decentralized ledger system that records transactions immutably and transparently. When applied to arbitration, blockchain offers significant benefits—particularly in verifying contract terms, ensuring procedural integrity, and streamlining enforcement across jurisdictions.

For example, an arbitration clause embedded in a blockchain-based agreement is not only timestamped and tamper-proof , but can also be connected to a smart contract that triggers dispute resolution procedures automatically upon a breach.

The Role of Smart Contracts

Smart contracts are self-executing digital agreements written in code, programmed to respond to specific conditions (e.g., a missed delivery deadline or failed payment). When a condition is met—or not met—the smart contract can automatically initiate arbitration or withhold payment until a dispute is resolved. This automated enforcement mechanism enhances predictability and reduces the likelihood of procedural gamesmanship.

Implications for ADR Professionals

Efficiency : Dispute triggers can be flagged and addressed in real time, streamlining the initiation process.
Security : Data stored on blockchain is encrypted and unalterable, offering added trust in digital arbitration.

Cross-Border Enforceability : Blockchain provides a neutral technological framework that supports international arbitration enforcement more transparently.

As an arbitrator, I see blockchain and smart contracts not as replacements for the human element of ADR, but as tools to enhance enforceability, trust, and efficiency in a digital-first legal world. For lawyers drafting arbitration clauses and ADR professionals administering them, understanding this technology is no longer optional—it’s essential.

ESG Disputes in ADR – A Strategic Approach to Resolving High-Stakes Issues

Wed, 02 Apr 2025 15:55:18 GMT

As Environmental, Social, and Governance (ESG) principles take center stage in corporate strategy, disputes related to ESG compliance, sustainability claims, and stakeholder accountability are increasing in both frequency and complexity. These matters don’t just affect a company’s bottom line—they impact brand reputation, investor confidence, and regulatory relationships. As such, they require a dispute resolution approach that is efficient, private, and principled—all strengths of mediation and arbitration.

Why ADR is Well-Suited for ESG Disputes

Confidentiality & Reputation Management
ESG disputes often involve sensitive data, potential allegations of greenwashing, or social responsibility failures. Mediation and arbitration offer private forums, allowing companies to manage conflicts without public litigation that may exacerbate reputational damage.

Expert Neutral Guidance
ADR allows parties to select neutrals with specific expertise in ESG-related sectors—whether it's environmental compliance, labor relations, or corporate governance. This tailored knowledge leads to better-informed resolutions and reduces the risk of misunderstanding complex regulatory frameworks.

Global and Cross-Border Flexibility

ESG obligations often span jurisdictions. Arbitration, particularly under institutions like the ICC or AAA-ICDR, provides cross-border enforceability and process adaptability that litigation cannot match.

Preserving Relationships While Resolving Disputes
Many ESG conflicts arise between business partners, investors, or community stakeholders. Mediation offers a structured environment to resolve disputes while preserving long-term relationships, a key goal in ESG initiatives.

The future of ESG is accountability—and with that comes conflict. Mediation and arbitration offer a modern, effective path forward for lawyers advising clients in this space. As an experienced neutral, I work to resolve these disputes with a deep understanding of the legal, reputational, and ethical implications.

�� Looking for trusted ADR guidance in ESG-related matters? Let’s talk.

Ethical Considerations in AI-Assisted Mediation

Wed, 26 Mar 2025 19:45:14 GMT

The integration of artificial intelligence (AI) into mediation is no longer a futuristic concept—it’s here, and it's reshaping the way we resolve disputes. AI tools are increasingly being used to streamline case management, assist with document review, and even provide insight into settlement trends. While these tools can enhance efficiency and decision-making, they also raise critical ethical questions that mediators and legal professionals must address head-on.

Fairness and Impartiality in an AI-Driven Process

At the heart of mediation lies neutrality and trust . When introducing AI into the process, we must ensure that its use does not inadvertently introduce bias or compromise impartiality . AI algorithms are trained on historical data—data that may reflect systemic biases. If left unchecked, these tools could reinforce unfair patterns or influence outcomes based on flawed assumptions.

Confidentiality and Data Security

Mediation depends on confidentiality . AI platforms that store or process sensitive information must adhere to rigorous data security standards. ADR professionals must vet vendors thoroughly and ensure that any digital tools used in mediation comply with ethical obligations surrounding privacy and privilege.

Transparency and Informed Consent

When AI is part of the process, parties must be informed . Transparency about how tools are being used, what data is being analyzed, and how that information may shape recommendations is essential. Informed consent isn’t just a legal standard—it’s an ethical imperative in maintaining the integrity of the mediation process.

The Role of the Mediator Remains Human

AI can enhance how we work, but it should never replace the human judgment, empathy, and adaptability that defines a skilled mediator. It is our role to ensure technology remains a servant of fairness , not a substitute for it.

�� Interested in exploring ethical, effective tech-assisted mediation? I’m happy to share insights or help with your next dispute.

Technological Advancements in Construction Arbitration – The Future of Efficiency in ADR

Wed, 19 Mar 2025 17:43:59 GMT

Construction disputes are among the most complex in alternative dispute resolution (ADR), often involving high-value contracts, technical evidence, and multi-party litigation . As technology evolves, construction arbitration is undergoing a transformation , leveraging digital tools to improve efficiency, reduce costs, and enhance case management.

 Key Technological Advancements in Construction Arbitration

��️ Virtual Hearings & Digital Case Management
With the rise of online arbitration platforms, virtual hearings have become a standard rather than an exception . Tools like Zoom, Webex, and dedicated arbitration platforms allow for seamless video testimony, digital evidence submission, and real-time transcription. The ability to conduct multi-jurisdictional arbitrations remotely significantly reduces time and travel expenses for all parties.

�� Electronic Document Management & AI-Powered Evidence Review
Construction cases involve massive volumes of contracts, blueprints, and regulatory documents . AI-driven legal tech tools like Relativity, Everlaw, and CaseText help streamline discovery by automating document review, identifying key clauses, and flagging inconsistencies . This ensures faster and more precise decision-making while reducing the manual workload.

⚙️ Building Information Modeling (BIM) & Digital Twin Evidence
BIM and Digital Twin technology allow arbitrators to visualize construction disputes in 3D models , helping clarify design defects, delays, and construction quality issues. These tools provide fact-based, real-time project data , making expert testimonies and evidentiary reviews more efficient and persuasive.

�� Blockchain for Contract Integrity & Smart Contracts
Blockchain technology is revolutionizing contract integrity , ensuring that construction contract changes, milestones, and payments are securely recorded and tamper-proof . Smart contracts can automate dispute triggers , making arbitration more efficient and reducing procedural disputes over payment schedules and deliverables.

The Impact on ADR Professionals & Lawyers

As technology transforms construction arbitration , ADR professionals must adapt:
✔ Embrace digital tools – Familiarity with virtual arbitration platforms, AI-driven discovery, and digital contract review tools is now a necessity.
✔ Enhance expertise in tech-driven evidence – Arbitrators must understand BIM, digital records, and AI-assisted document analysis to remain effective in resolving construction disputes.
✔ Ensure cybersecurity compliance – As more data moves online, arbitrators and law firms must invest in security protocols to protect sensitive project information.

The future of construction arbitration is here. For lawyers, working with technologically proficient ADR professionals is now a strategic advantage —ensuring that disputes are resolved efficiently, cost-effectively, and with a higher degree of accuracy than ever before.

ADR in Intellectual Property Disputes: Efficiently Resolving Complex IP Conflicts

Thu, 13 Mar 2025 23:58:32 GMT

Intellectual property (IP) disputes are inherently complex, involving technical subject matter, international considerations, and high financial stakes. As litigation in this space becomes increasingly costly and time-consuming, alternative dispute resolution (ADR) has emerged as a preferred mechanism for resolving IP conflicts efficiently.

Organizations like the WIPO Arbitration and Mediation Center have played a critical role in advancing ADR in the IP sector, offering specialized mediation, arbitration, and expert determination services designed to accommodate the unique challenges of IP disputes.

Why ADR is Ideal for IP Disputes

✔ Expert-Neutral Decision Making – Arbitration allows parties to select neutrals with specific IP expertise, ensuring decisions are well-informed and technically sound.
✔ Confidentiality – Unlike court litigation, ADR ensures proprietary information and trade secrets remain protected.
✔ International Flexibility – Given the cross-border nature of many IP disputes, ADR offers enforceability through international treaties like the New York Convention.
✔ Cost & Time Efficiency – ADR typically resolves disputes faster and at a lower cost compared to protracted litigation.

Recent Trends in IP ADR

1️⃣ Rise in Mediation Before Litigation – Many jurisdictions now encourage or mandate mediation as a first step in resolving IP conflicts.
2️⃣ Specialized IP Arbitration Rules – Institutions like WIPO and the International Chamber of Commerce (ICC)have refined arbitration rules to accommodate IP complexities, including expedited procedures.
3️⃣ Technology & AI Integration – AI-powered tools are streamlining case management and helping neutrals analyze large volumes of technical evidence.

For lawyers handling IP disputes, selecting the right ADR professional is critical. A skilled mediator or arbitrator with industry expertise can mean the difference between a prolonged battle and an efficient resolution. As ADR continues to evolve, embracing these strategies can offer businesses and innovators a competitive edge in protecting their valuable IP assets.

Mass Arbitration Trends – What Lawyers and ADR Professionals Need to Know

Fri, 28 Feb 2025 00:50:36 GMT

Mass arbitration is reshaping the ADR landscape, particularly in consumer and employment disputes . Once considered an alternative to class actions, mass arbitration has gained traction as a strategic tool for claimants, leading to significant procedural and financial implications for businesses and ADR practitioners alike.

Mass arbitration involves hundreds or thousands of nearly identical arbitration claims filed simultaneously against a single entity—often large corporations accused of unfair practices. With companies increasingly incorporating arbitration clauses in consumer and employee contracts, claimants have leveraged these provisions to file mass claims, sometimes overwhelming arbitration providers.

Several factors contribute to the rise of mass arbitration:

✔ Shifts in Class Action Strategy – As courts enforce arbitration clauses that prevent class actions, plaintiffs' attorneys have turned to mass arbitration as a way to litigate en masse.

✔ Streamlined Filing Processes – Technology has made it easier to organize and submit large numbers of claims, often through online platforms.

✔ Corporate Arbitration Fees – Under many institutional arbitration rules, companies must pay filing fees per case, creating a financial incentive for large-scale filings.

Case Management Challenges – Arbitrators and mediation providers must develop systems to handle large caseloads efficiently.

Procedural Adjustments – Institutions like AAA and JAMS are revising their rules to address mass filings, including batch processing and tiered fee structures.

Evolving Business Responses – Companies are reassessing arbitration clauses to mitigate risk while preserving enforceability.

As mass arbitration continues to gain momentum, ADR professionals must adapt to new filing strategies, procedural shifts, and ethical considerations . Understanding these trends is critical for lawyers, arbitrators, and mediators navigating the evolving dispute resolution landscape.

�� Interested in how mass arbitration is changing ADR? Let’s discuss.

The Rise of Online Dispute Resolution (ODR) Platforms

Thu, 20 Feb 2025 18:23:58 GMT

T he digital transformation sweeping across industries has not left dispute resolution behind. Online Dispute Resolution (ODR) platforms are rapidly emerging as a critical component of modern ADR, providing unprecedented accessibility and efficiency for both lawyers and mediators. As an experienced mediator and arbitrator, I have witnessed firsthand how these platforms are reshaping the landscape of conflict resolution.

ODR platforms leverage technology to conduct virtual mediation and arbitration sessions, making it possible to resolve disputes regardless of geographical boundaries. For lawyers seeking to book experienced neutrals, this means greater flexibility and the ability to tap into a broader pool of professionals. With features such as secure video conferencing, real-time document sharing, and digital case management, ODR platforms streamline administrative processes and reduce the time and cost traditionally associated with in-person proceedings.

For mediators and arbitrators, ODR offers a dynamic toolset that enhances the efficiency of case management. Advanced functionalities like electronic evidence presentation and virtual breakout rooms allow for more structured and productive sessions. Furthermore, many platforms integrate artificial intelligence to assist with tasks such as scheduling, outcome prediction, and even preliminary case analysis, ensuring that the process remains both robust and impartial.

However, as with any technological advancement, challenges remain. Data privacy and security are paramount, and ODR providers must adhere to rigorous standards to protect sensitive information. Additionally, ensuring that all parties are comfortable with virtual interactions requires continuous innovation and training.

Overall, ODR platforms represent a significant step forward in making dispute resolution more accessible and effective. For lawyers and ADR professionals alike, embracing this digital shift can lead to faster, more efficient resolutions and ultimately, a more equitable justice system.

Artificial Intelligence in ADR: Transforming Dispute Resolution with Cutting-Edge Technology

Thu, 13 Feb 2025 23:37:12 GMT

Artificial Intelligence (AI) is no longer a futuristic concept; it’s here, and it's transforming the field of Alternative Dispute Resolution (ADR). From streamlining administrative tasks to assisting in outcome prediction, AI is enhancing the efficiency and effectiveness of mediation and arbitration processes. As ADR professionals, we must understand both the opportunities and challenges presented by this technological evolution.

AI in Outcome Prediction

AI-driven tools can now analyze historical case data to predict potential outcomes with remarkable accuracy. By processing vast amounts of information—including case facts, procedural patterns, and legal precedents—AI helps mediators and arbitrators anticipate possible results and guide parties toward informed decisions. While these tools don’t replace human judgment, they provide valuable insights that facilitate more realistic expectations.

Decision-Making Assistance

AI applications are increasingly used to assist neutrals in complex cases by suggesting relevant case law or comparable dispute outcomes. Tools like Lex Machina and Fastcase leverage natural language processing (NLP) to deliver contextually relevant information, allowing neutrals to make more informed decisions. However, human expertise remains essential to interpret AI-generated recommendations within the nuanced context of each dispute.

Administrative Efficiency

Administrative tasks such as document review, case scheduling, and communication management have traditionally consumed significant resources. AI-powered platforms can now automate these processes, reducing manual errors and improving overall efficiency. For instance, JAMS and other leading ADR organizations have integrated AI-driven tools to streamline case management and optimize mediator workloads.

Ethical Considerations and the Road Ahe ad

While AI presents undeniable benefits, it also raises ethical questions related to data privacy, algorithmic bias, and decision-making transparency. ADR professionals must remain vigilant in selecting and applying AI tools, ensuring that these technologies complement—not compromise—principles of fairness and impartiality.

AI in ADR is not a replacement for the human touch but a powerful tool to enhance the integrity, efficiency, and accessibility of dispute resolution. The future of ADR lies in striking the right balance between innovation and the enduring principles of justice.

Mediator and Arbitrator Selection Criteria – What Lawyers Should Look For

Wed, 05 Feb 2025 16:52:27 GMT

S electing the right mediator or arbitrator can make or break the resolution of a dispute. While experience and subject matter expertise are crucial, truly effective dispute resolution professionals bring a combination of skills, temperament, and strategic insight that elevate the ADR process. Lawyers who carefully vet their mediators and arbitrators can position their clients for a more favorable and efficient resolution.

Key Criteria for Selecting a Mediator or Arbitrator

1. Subject Matter Expertise and Legal Acumen

A deep understanding of the relevant legal issues is non-negotiable. While generalist mediators can be effective, complex disputes—such as construction, commercial, or intellectual property cases—demand an ADR professional with industry-specific expertise.

�� Example: A leading arbitrator in international trade disputes, such as Gary Born , is sought after for his expertise in international arbitration law, ensuring well-grounded and enforceable decisions.

2. Impartiality and Reputation

Neutrality is the bedrock of ADR. Lawyers should look for mediators and arbitrators who have a proven track record of fairness and objectivity. Researching past cases, speaking with peers, and reviewing professional affiliations (such as AAA, JAMS, or ICC ) can provide insights into their reputation.

�� Tip: Look for neutrals who disclose potential conflicts upfront and have a history of balanced decision-making.

3. Strong Communication and Emotional Intelligence (EI)

ADR professionals must navigate high-stakes disputes with diplomacy. Emotional intelligence allows mediators to de-escalate tensions and arbitrators to conduct proceedings with control and composure.

�� Example: Mediators like Kenneth Feinberg , known for handling sensitive cases such as the 9/11 Victim Compensation Fund, demonstrate how empathy and clear communication can facilitate settlement even in the most contentious disputes.

4. Process Management and Efficiency

Time is money, especially in ADR. Lawyers should seek professionals who manage sessions effectively—keeping discussions focused, maintaining procedural fairness, and preventing unnecessary delays.

�� Tip: An arbitrator experienced in case management will establish clear procedural rules upfront, ensuring that the process runs smoothly and avoids excessive motion practice or discovery battles.

5. Enforceability of Decisions

For arbitration, ensuring the final award will hold up in court is critical. Arbitrators must have experience drafting clear, well-reasoned awards that minimize the risk of appeal or vacatur. Reviewing prior awards (if available) can provide insight into their ability to craft legally sound decisions.

Final Thoughts: The Right ADR Professional Adds Strategic Value

Choosing a mediator or arbitrator is more than a procedural step—it’s a strategic decision that directly impacts the outcome of a case. By focusing on expertise, neutrality, communication skills, and efficiency, lawyers can ensure they select an ADR professional who will drive meaningful and enforceable resolutions.

�� Looking for a seasoned mediator or arbitrator with the skills to facilitate a fair and effective resolution? Let’s discuss how I can help.

Managing High-Conflict Personalities in Mediation

Wed, 29 Jan 2025 23:00:40 GMT

In mediation, emotions often run high, but some disputes involve particularly challenging personalities—individuals who are aggressive, uncooperative, or unwilling to compromise. Effectively managing high-conflict personalities is critical to keeping the mediation process on track and leading both parties toward a productive resolution.

High-conflict individuals often exhibit patterns of behavior that escalate tension rather than resolve it. They may be quick to anger, resistant to feedback, or highly defensive. Their communication may be more about assigning blame than finding solutions. Understanding these tendencies allows a mediator to anticipate challenges and apply strategies to keep the conversation focused and productive.

Techniques for Managing High-Conflict Parties

Establish Ground Rules Early
Setting clear expectations at the start of mediation helps prevent disruptive behavior. Reminding all parties to remain professional and respectful creates an environment that discourages hostility.
Redirect Negative Energy
High-conflict personalities often focus on grievances rather than solutions. A skilled mediator can redirect these emotions by steering the conversation toward interests rather than positions. Encouraging parties to discuss their needs rather than their complaints helps shift the focus from conflict to resolution.
Use Private Sessions (Caucuses) Wisely
Private sessions can provide an opportunity for individuals to express emotions without escalating tensions in a joint session. These meetings allow mediators to address concerns, reframe perspectives, and encourage a more cooperative approach when parties return to the main discussion.
Maintain a Calm, Neutral Presence
High-conflict individuals often seek to engage others in emotional exchanges. A mediator’s ability to remain composed and neutral helps set the tone for the discussion. Modeling patience and calm communication can often de-escalate tensions and encourage cooperation.
Help Parties Save Face
Some disputes become entrenched because individuals fear appearing weak or "losing." Providing face-saving solutions—such as framing agreements in a way that allows both parties to maintain dignity—can be key to reaching a resolution.

Managing high-conflict personalities in mediation requires a combination of structure, emotional intelligence, and strategic redirection. By establishing ground rules, maintaining neutrality, and focusing on problem-solving rather than blame, mediators can guide even the most contentious disputes toward resolution. Skilled mediation is not just about settling cases—it’s about creating an environment where resolution is possible, even when personalities make it difficult.

Balancing Neutrality and Engagement in Arbitration

Wed, 22 Jan 2025 23:42:54 GMT

Serving as an arbitrator requires both impartiality and active participation to guide parties toward a fair resolution. Neutrality in arbitration means applying the same standards to each party, making determinations solely on evidence and legal principles rather than personal biases. When parties trust that the arbitrator is truly impartial, they are more likely to accept and abide by the ultimate decision.

Despite maintaining neutrality, an arbitrator must also remain engaged. This can involve asking pointed questions to clarify complex issues and ensuring both parties have adequately explained their positions. If an issue is unclear, pausing the proceedings to seek additional information or review pertinent evidence can significantly enhance the accuracy of the final outcome.

Striking the right balance between neutrality and engagement can be challenging. Excessive intervention may give the impression of siding with one party, while too little involvement risks overlooking critical details. The following best practices help maintain this delicate balance:

Establish Clear Guidelines : At the outset, provide a detailed overview of the arbitration process. This clarifies roles, timelines, and the expectations for conduct, giving all parties a shared framework.
Ask Equitable Questions : Formulate inquiries that allow both parties to expand on their arguments. Avoid phrasing that implies agreement or alignment with any single perspective.
Foster a Respectful Environment : Should the dialogue become tense, remind participants of their shared goal—resolving the dispute. A respectful atmosphere enables clear thinking and constructive discourse.
Explain Reasoning : After rendering the award, offer a concise explanation of how the evidence, legal standards, and arguments guided the decision. Transparency in the thought process promotes confidence in the outcome.

Ultimately, balancing neutrality with thoughtful engagement is an essential aspect of effective arbitration. By remaining impartial, actively clarifying critical points, and encouraging respectful participation, arbitrators can provide decisions that parties view as both equitable and well-founded.

Arb-Med vs. Med-Arb: Which Sequence Works Best?

Thu, 16 Jan 2025 21:40:32 GMT

Two approaches you may hear about are “Arb-Med” and “Med-Arb.” Each one mixes parts of both arbitration and mediation, but in different orders. Let’s talk about what these methods are, and when they might work best.

What Is Arb-Med?

1. Arbitration First: In Arb-Med, the parties start with arbitration. Both sides tell their stories to the arbitrator, who then makes a decision (an award).

2. Mediation Second: But instead of telling everyone the decision right away, the arbitrator sets it aside and tries mediation next. During mediation, everyone tries to reach an agreement by talking through the problem in a friendlier way.

3. Outcome: If the mediation works, the parties have their own agreement. If not, the arbitrator reveals the award from the first step.

Pros:

- The parties might work harder to settle during mediation since they know there’s already a decision waiting.

- They can save time if they settle.

Cons:

- Some people feel stressed knowing an arbitration award already exists.

- Trust issues may arise if the parties worry about bias once the arbitrator sees all sides.

What is Med-Arb?

1. Mediation First: In Med-Arb, the parties start by trying to agree through mediation. They talk, share ideas, and try to solve the dispute peacefully.

2. Arbitration Second: If the mediation doesn’t work, they move to arbitration, where the arbitrator gives a final decision.

Pros:

- This method often feels less threatening since you try to solve the problem together first.

- It can still end with a clear decision if needed.

Cons:

- If mediation fails, it can feel like you’re “starting over” when moving into arbitration.

- The mediator and arbitrator might be the same person, which can cause worry about fairness.

Choosing between Arb-Med and Med-Arb depends on your case and clients. Arb-Med is useful if you want a fast decision but still like a chance to talk things out. Med-Arb is great if you prefer to work together first, while keeping a firm decision ready if you can’t agree. Talk with your clients about these options to decide which path suits their needs best.

Ethics in Joint vs. Private Sessions: Doing the Right Thing

Thu, 09 Jan 2025 19:15:11 GMT

A s a mediator and arbitrator, one of my main goals is to help people solve problems in a fair and respectful way. A big part of that is knowing how to move between joint sessions (where everyone meets together) and private sessions (also called caucuses).

Let’s talk about why this matters and how we can do it right.

What Are Joint Sessions?
In a joint session, all sides meet in the same room. This allows everyone to hear what the others have to say. It can help build trust because people see and listen to each other at the same time. But sometimes, emotions can run high, and people may hold back important information because they don’t feel safe sharing it in front of everyone.

What Are Private Sessions (Caucuses)?
A private session is when the mediator or arbitrator meets with each side alone. This can be very helpful if someone needs to share things they don’t want to say in a big group. Private sessions can make people feel more comfortable, but there is also a rule: what is said in private stays private unless the speaker says it’s okay to share.

Why Is Ethics Important?
Ethics means doing the right thing even when it’s hard. In mediation and arbitration, it’s about being honest, fair, and respectful of people’s secrets. When I switch from a joint session to a private session, I have to protect everyone’s trust. That means I never share private details without permission. It also means I stay neutral, so no one thinks I’m taking sides.

Best Practices for Moving Between Sessions

Explain the Process : Before we start, I tell everyone how joint and private sessions work. This helps people feel safe.
Ask for Permission : If something important comes up in a private session, I always ask if I can share it.
Stay Impartial : I make sure to treat everyone the same. I listen carefully and do not favor one person over another.
Protect Confidentiality : Anything said in a private session stays between me and the speaker unless they give me the green light to share.

By following these steps, we can keep the process fair and trustworthy. Joint and private sessions can both be powerful tools when used with honesty and care.

The Role of Emotional Intelligence in Mediation and Arbitration

Thu, 26 Dec 2024 16:38:34 GMT

In mediation and arbitration, technical expertise and legal acumen are essential—but they’re only part of the equation. Emotional Intelligence (EI) plays a pivotal role in fostering trust, managing conflict, and achieving successful resolutions.

What is Emotional Intelligence?

EI encompasses the ability to recognize, understand, and manage one’s emotions while also navigating the emotions of others. In ADR, where emotions often run high, EI is a vital skill for mediators and arbitrators to maintain neutrality and encourage constructive dialogue.

The Key Components of EI in ADR

1. Self-Awareness: Understanding your own emotional triggers ensures impartiality and effective communication.

2. Empathy: Recognizing the emotions of disputing parties builds trust and fosters collaboration.

3. Emotional Regulation: Managing tensions calmly creates a safe environment for resolution.

4. Social Skills: Facilitating open dialogue and negotiation requires strong interpersonal skills.

Practical Applications in ADR

De-Escalating Tensions**: EI helps mediators defuse hostility and redirect conversations toward solutions.

Building Rapport: Empathy and active listening encourage parties to share openly, enhancing trust.

Crafting Tailored Solutions: Understanding emotional undercurrents allows ADR professionals to design resolutions that address both tangible and emotional needs.

The EI Edge

Research shows that disputes resolved with high EI mediation are more likely to result in durable agreements and improved relationships. Developing EI is an ongoing process, but it’s one that sets exceptional ADR professionals apart.

Early Neutral Evaluation: Bridging the Gap Between Mediation and Litigation

Wed, 11 Dec 2024 19:23:19 GMT

In the evolving world of alternative dispute resolution (ADR), Early Neutral Evaluation (ENE) has emerged as a powerful tool for helping parties make informed decisions about their cases. Positioned between mediation and litigation, ENE offers a structured yet flexible approach that can expedite resolution and improve settlement outcomes.

What is Early Neutral Evaluation?

ENE involves a neutral third party—often an experienced mediator, arbitrator, or legal expert—who assesses the merits of each side’s case early in the dispute process. The neutral provides an objective evaluation, highlighting strengths and weaknesses, legal risks, and potential outcomes. While non-binding, this evaluation often serves as a reality check, helping parties to recalibrate their expectations.

When to Use ENE

ENE is particularly valuable in complex disputes, where legal or factual issues may be unclear, or when one or both parties are entrenched in unrealistic positions. It is also effective in disputes where preserving relationships is crucial, as it encourages resolution without the adversarial tone of litigation.

Key Advantages of ENE

Informed Decision-Making : Parties gain a clearer understanding of their position, which often leads to more realistic settlement discussions.
Cost and Time Efficiency : By addressing key issues early, ENE can reduce the time and expense associated with prolonged litigation.
Improved Settlement Rates : With an objective evaluation in hand, parties are more likely to engage in meaningful negotiations.

How ENE Fits Into the ADR Landscape

ENE complements other ADR methods by promoting early resolution while preserving the option for mediation or arbitration if needed. Its structured approach fosters collaboration and helps streamline the dispute resolution process.

By incorporating ENE into your ADR toolkit, you can bridge the gap between mediation and litigation, ensuring faster, fairer outcomes that save time, resources, and relationships.

The Evolution of Arbitration Agreements: Drafting for Clarity and Enforceability

Thu, 05 Dec 2024 20:08:05 GMT

Arbitration agreements are the cornerstone of effective dispute resolution, but their enforceability often hinges on precise drafting. The evolving legal landscape, technological advancements, and the increasing complexity of disputes necessitate a strategic approach to crafting these clauses.

Clarity is Paramount

Ambiguity in arbitration agreements can lead to prolonged disputes over interpretation, undermining the efficiency ADR promises. Clear language specifying the scope of disputes, governing rules, and the selection of arbitrators is essential. For example, instead of vaguely referring to "all disputes," explicitly outline the types of issues subject to arbitration.

Embrace Multi-Tiered Dispute Resolution Mechanisms

An emerging trend is the incorporation of multi-tiered dispute resolution processes, such as negotiation or mediation before arbitration. These steps can de-escalate conflicts and preserve relationships while reserving arbitration as a final step. To avoid enforceability issues, ensure each tier is described with clear timelines and procedures.

Accommodate Technological Advancements

With the rise of virtual arbitrations, agreements should anticipate logistical challenges. Include provisions for electronic filings, virtual hearings, and digital evidence management. Such foresight not only reflects modern practices but also reduces disputes over procedural logistics.

Legal Compliance and Flexibility

Arbitration clauses must align with local and international legal standards, such as those under the New York Convention. Additionally, they should remain flexible enough to accommodate changes in governing laws or the adoption of new arbitration rules.

By prioritizing precision and adaptability, well-drafted arbitration agreements can enhance enforceability, streamline proceedings, and ensure that ADR fulfills its promise of efficient conflict resolution. The key lies in proactive, thoughtful drafting that accounts for the complexities of today’s dispute landscape.

Case Studies of Successful ADR Applications: Resolving Disputes Through Mediation and Arbitration

Tue, 26 Nov 2024 16:02:13 GMT

Alternative dispute resolution continues to prove its value in resolving conflicts efficiently and effectively. Below, are two basic case studies where mediation and arbitration delivered outcomes that benefited all parties involved, along with key takeaways for practitioners.

Case 1: Mediation in a Complex Workplace Dispute

A multinational corporation faced a dispute between a high-performing manager and their team. Tensions arose over alleged favoritism and communication breakdowns, which threatened team cohesion and overall productivity. Traditional litigation would have been costly, time-consuming, and damaging to the company’s reputation.

The Resolution:

The company engaged a professional mediator who conducted pre-mediation interviews to understand the underlying issues. The mediation session allowed all parties to express their grievances and proposed solutions in a neutral setting. With the mediator's guidance, the manager agreed to undergo leadership training, while the team committed to implementing clear communication protocols.

Key Takeaways:

Pre-mediation preparation: is crucial to uncovering the root causes of conflict.

Neutral facilitation: can transform emotionally charged disputes into constructive dialogue.

Case 2: Arbitration in a Cross-Border Business Dispute

Two international companies were locked in a dispute over the terms of a joint venture agreement. Litigation in multiple jurisdictions would have been prohibitively complex and expensive.

The parties opted for arbitration through the International Chamber of Commerce (ICC). The arbitrator delivered a binding resolution within six months, which clarified contract terms and established a profit-sharing mechanism.

- Arbitration offers a streamlined, enforceable solution for cross-border disputes.

- Selecting a neutral forum reduces jurisdictional complexities.

These cases underscore ADR's power to provide tailored solutions while preserving relationships. By embracing mediation and arbitration, businesses and individuals alike can achieve resolutions that litigation often cannot deliver.

The Ethical Minefield of ADR

Thu, 21 Nov 2024 18:50:29 GMT

ADR professionals face a variety of ethical challenges that may arise from the nature of the dispute, the conduct of the parties, or even systemic biases. Some of the most common ethical dilemmas include:

Maintaining Neutrality Mediators and arbitrators must remain impartial, yet human nature can make this challenging. Implicit biases, pre-existing relationships with parties, or undue influence from one side can threaten neutrality.

Example: A mediator might unconsciously lean towards a more articulate or well-represented party, disadvantaging the other side.

Confidentiality Protecting the confidentiality of discussions and documents is a cornerstone of ADR. However, there are instances where confidentiality may conflict with other ethical or legal obligations, such as the duty to report criminal activity.

Scenario: Should a mediator breach confidentiality if one party admits to ongoing fraudulent activities?

Ensuring Informed Consent Parties must fully understand the ADR process, including its limitations. Ethical challenges arise when one side lacks legal representation or comprehension, leading to potential exploitation.

Question: How can arbitrators ensure both parties truly understand and agree to the terms of an arbitration clause?

Frameworks for Ethical Decision-Making

To address these challenges, ADR professionals can turn to established ethical guidelines and frameworks that offer clarity and direction:

1. The Model Standards of Conduct for Mediators

Jointly developed by the American Arbitration Association (AAA), the American Bar Association (ABA), and the Association for Conflict Resolution (ACR), these standards provide a foundation for ethical mediation practices. Key principles include:

Self-Determination: Mediators must support the parties’ autonomy in decision-making.

Impartiality: Mediators should disclose any potential conflicts of interest.

Confidentiality: Safeguarding all aspects of the mediation process unless disclosure is required by law.

2. The IBA Guidelines on Conflicts of Interest in International Arbitration

For arbitrators, these guidelines from the International Bar Association offer detailed insights into managing conflicts of interest. They emphasize the importance of transparency and disclosure to maintain trust in the arbitration process.

3. The ABA’s Model Rules of Professional Conduct

These rules are particularly useful for lawyer-mediators and arbitrators. They address issues such as competence, fairness, and the lawyer’s role in ensuring informed consent.

Practical Strategies for Navigating Ethical Challenges

Beyond adherence to guidelines, mediators and arbitrators can take proactive steps to navigate ethical dilemmas effectively:

Engage in Regular Training Ongoing education on ethics in ADR helps professionals stay updated on best practices and emerging challenges.

Foster Open Communication Create an environment where parties feel comfortable voicing concerns about fairness or bias.

Utilize Peer Consultation When faced with complex ethical questions, seeking advice from trusted colleagues can provide valuable perspective.

Develop a Checklist for Disclosure Maintaining a standard checklist for potential conflicts of interest ensures transparency from the outset.

Case Studies: Ethics in Action

Case Study 1: A Mediator’s Dilemma with Confidentiality

In a workplace dispute, one party discloses that they intend to retaliate against a coworker after the mediation. The mediator must decide whether to breach confidentiality to prevent harm or remain bound by the agreement.

Resolution: The mediator consults the Model Standards of Conduct, which prioritize confidentiality but allow exceptions when public safety is at risk. The mediator reports the threat while maintaining the integrity of the process.

Case Study 2: Arbitrator Bias Allegations

During an international arbitration, one party discovers that the arbitrator previously worked with opposing counsel. The arbitrator had not disclosed this relationship.

Resolution: Referring to the IBA Guidelines, the arbitrator steps down to preserve the process's fairness and neutrality.

Ethical dilemmas in ADR are inevitable, but they are not insurmountable. By adhering to established guidelines, fostering transparency, and prioritizing fairness, mediators and arbitrators can navigate these challenges effectively. The goal is not only to resolve disputes but also to do so in a manner that upholds the integrity and credibility of ADR as a trusted process.

I encourage my colleagues in the ADR community to embrace these ethical principles as our guide. By committing to the highest standards, we ensure that ADR remains a powerful tool for justice and resolution.

Integration of Technology in Dispute Resolution

Fri, 15 Nov 2024 22:47:47 GMT

The world of dispute resolution is undergoing a technological revolution. Advances in artificial intelligence (AI), virtual platforms, and digital tools are reshaping how mediators and arbitrators approach conflict resolution. This transformation not only enhances efficiency and accessibility but also promises to redefine the very essence of alternative dispute resolution.

Virtual mediation and arbitration platforms emerged as a necessity during the COVID-19 pandemic but have proven to be more than a stopgap solution. Platforms like Zoom, Microsoft Teams, and specialized ADR tools such as JAMS Virtual provide secure and convenient ways to conduct sessions without geographical constraints.

Kimberly Taylor, Chief Legal and Operating Officer at JAMS, notes, “Technology has not just kept ADR alive during challenging times; it has enhanced how we engage with it. The ability to schedule, meet, and resolve disputes virtually has opened the door for greater flexibility and participation.” The global nature of many disputes makes virtual platforms an indispensable tool, especially for international arbitration.

AI is making its mark in dispute resolution, from document review to predictive analytics. Tools powered by machine learning can sift through vast amounts of case law, arbitration awards, and negotiation patterns to provide valuable insights.

Richard Susskind, a renowned legal futurist, highlights AI’s potential: “Machines don’t replace mediators; they augment them. By handling the repetitive and data-heavy tasks, AI allows professionals to focus on what they do best—human judgment and empathy.” For example, AI-driven tools can help identify patterns in similar disputes, offering mediators a roadmap for resolution strategies.

ODR platforms like Modria and Matterhorn are bridging gaps in access to justice by offering low-cost and user-friendly solutions for resolving disputes. These platforms are particularly effective for small claims, consumer disputes, and employment issues, where traditional ADR might be cost-prohibitive.

According to Colin Rule, co-founder of Modria and an ODR pioneer, “ODR isn’t about replacing traditional ADR—it’s about complementing it. By taking smaller disputes online, we free up mediators and arbitrators to focus on more complex cases.”

While technology brings undeniable benefits, it also raises ethical and practical questions. For instance, how do we ensure confidentiality in virtual mediations? What safeguards are in place to prevent AI bias in arbitration? As the American Bar Association warns, “ADR professionals must balance technological innovation with the core principles of fairness, neutrality, and confidentiality.”

As the integration of technology in ADR continues to evolve, we can expect even more sophisticated tools, such as virtual reality for immersive dispute simulations or blockchain for secure arbitration agreements. But as we embrace these innovations, the human element of ADR—empathy, creativity, and trust—must remain at the forefront.

Technology in ADR isn’t just a trend; it’s a transformation. By leveraging these advancements thoughtfully, we can make mediation and arbitration more efficient, accessible, and impactful than ever before.

In conclusion, technology is not merely an add-on in dispute resolution; it is a catalyst for its evolution. As ADR professionals, we must stay informed, adapt to new tools, and ensure these advancements are used to uphold the principles that make mediation and arbitration effective.

Let’s embrace this new era together. The future of ADR is here!

Finish Your Year Strong with Mediation and Arbitration

Wed, 06 Nov 2024 17:33:59 GMT

As the year winds down, it’s the perfect time to wrap up any lingering cases and start fresh in the new year. A strong finish now can make a world of difference come January, and mediation and arbitration can be powerful tools to get those cases resolved efficiently. Whether you’re looking to settle in-person or online, here’s how mediation and arbitration can help you close out the year on a high note.

Mediation: Settle Cases Quickly and Efficiently

Mediation offers a flexible, client-friendly way to reach resolutions faster. If you have cases that have been dragging or could benefit from a less adversarial approach, mediation might be the best route to get things wrapped up before the end of the year.

Here’s why mediation is ideal for a year-end resolution:

-End the Year with Wins: Resolve disputes without waiting for backlogged court dates.

-Flexibility: In-person or virtual—whatever works best for you and your clients.

-Client Satisfaction: Mediation is a faster, less costly option that can save your clients time and stress.

If you’re looking to add a few more wins to your record and get clients what they need before the holiday season, consider scheduling a mediation session.

Arbitration: Achieve Finality Before 2024

For cases requiring a final and binding decision, arbitration is the ideal solution to bring finality without the lengthy appeals process of litigation. When there’s no time for delays, arbitration provides a streamlined path to closure.

Here’s why arbitration is a powerful end-of-year option:

-Binding Decisions: Achieve closure and avoid lengthy appeals.

-Quick Scheduling: No need to wait for a court date—let’s get it done this year.

-Privacy and Security: Arbitration keeps client information secure and confidential.

If you’ve got a tough case that needs a definitive outcome, now’s the time to close it with arbitration.

Mediation Preparation Tips: How to Get Your Client Ready

Wed, 23 Oct 2024 22:00:43 GMT

Preparation is key to successful mediation. Lawyers who ensure their clients are fully prepared for mediation tend to achieve more favorable outcomes.

Client Prep: The most successful mediations involve clients who understand the process. Preparing your client means discussing the potential outcomes, setting realistic expectations, and explaining how the mediator will facilitate discussions.

Pre-Mediation: Dialogue Before mediation, it’s important to have an open dialogue with opposing counsel to clarify the key issues at hand. This helps ensure a more focused and productive mediation session. Pre-mediation discussions also give both sides a chance to propose potential solutions in advance.

Effective mediation begins with proper preparation. By making sure your client understands the process and engaging in pre-mediation discussions, you increase the chances of a successful outcome.

Zoom Mediations on the Rise

Wed, 16 Oct 2024 18:25:42 GMT

The Future of Virtual Dispute Resolution

The COVID-19 pandemic introduced us to the potential of virtual mediation, and its rise in popularity shows no sign of slowing down. Zoom mediations are now a practical, efficient, and flexible option for lawyers and their clients.

Increased Accessibility: Zoom mediation eliminates travel time and allows parties to join from anywhere, making scheduling more flexible. This accessibility also opens the door to resolving disputes for parties in different regions or countries.

Comfort and Flexibility: Zoom mediations often create a less intimidating atmosphere for parties, leading to more productive discussions. The flexibility of participating from one’s own environment can make mediation less stressful and more effective.

As virtual platforms like Zoom continue to streamline the mediation process, more legal professionals are recognizing its advantages. Virtual mediation is here to stay, and for many cases, it’s the perfect solution.

The Growing Role of Arbitration in Dispute Resolution

Wed, 09 Oct 2024 16:55:41 GMT

Arbitration has increasingly become a go-to option for resolving complex disputes, especially in commercial and international cases. Its benefits—speed, privacy, and finality—make it an appealing alternative to traditional court litigation.

Efficiency and Flexibility: Arbitration offers more flexibility in scheduling and procedure than the court system, which can be bogged down by delays. This flexibility allows legal professionals to tailor the process to their needs, ensuring a quicker resolution for clients.

Privacy and Finality: For many businesses, the private nature of arbitration is a significant advantage. Unlike public court proceedings, arbitration is confidential, protecting sensitive business information. Additionally, arbitration awards are binding, offering a final resolution with limited grounds for appeal.

For lawyers seeking a streamlined, private, and binding resolution to disputes, arbitration continues to be a powerful tool in the legal landscape.

Early Mediation: A Rising Trend for Efficient Case Resolution

Wed, 02 Oct 2024 21:06:52 GMT

Timing of Mediation – Early Mediation Becoming Preferred

With litigation delays continuing post-COVID, early mediation is emerging as a preferred option for many legal professionals. Whether it's pre-litigation or pre-arbitration, early mediation offers several benefits.

Even though courts are operating again, a COVID-induced backlog continues to slow case movement. As a result, many lawyers are opting for early mediation to resolve disputes quickly rather than waiting for trial dates months or even years down the road.

Another growing trend is resolving disputes before litigation or arbitration even begins. Pre-litigation mediation offers the chance to avoid the high costs and long timelines of formal proceedings. Pre-arbitration mediation follows a similar logic, encouraging parties to explore settlement options before the arbitration process fully kicks off.

Early mediation provides an efficient way to resolve disputes before they escalate, saving time and resources for all parties. For legal professionals, now is the time to consider this approach as the delays and costs of litigation continue to mount.

Trends in Verdicts, Case Law Updates, and Settlement Values

Wed, 25 Sep 2024 23:38:50 GMT

The legal landscape is constantly evolving, with trends in verdicts, updates in case law, and shifts in settlement values playing a significant role in dispute resolution. As a mediator, staying informed on these changes is critical to guiding lawyers and their clients toward effective settlements.

Trends in Verdicts: Recent trends in verdicts reveal shifting attitudes in various courts, which can directly impact how cases are mediated. Some courts are seeing more pro-plaintiff verdicts, particularly in personal injury and business disputes. Understanding these trends allows mediators to provide realistic settlement ranges and manage client expectations effectively.

Case Law Updates: Keeping up with the latest case law is essential, as new rulings can significantly alter the trajectory of mediation. For instance, recent changes in contract law or negligence cases may influence how similar cases are settled in mediation, encouraging parties to rethink their strategies based on recent precedent.

Settlement Values: Settlement values are also fluctuating as economic factors, jury behaviors, and regional legal environments evolve. In some cases, settlements have become more attractive due to increased litigation costs and delays. Mediators can use these shifts to foster agreements that are both time- and cost-effective for all parties.

For lawyers, being informed about trends in verdicts, case law updates, and settlement values ensures more strategic mediation decisions. As a mediator, my role is to stay ahead of these trends, ensuring that all parties are working with the most current information to reach favorable outcomes.

Navigating Multi-Party Mediations: Strategies for Success

Wed, 18 Sep 2024 21:56:34 GMT

Mediating a dispute between two parties can be complex enough, but when multiple parties are involved, the challenges increase significantly. Multi-party mediations often involve varying interests, relationships, and power dynamics, which can complicate the path to resolution. As a mediator, having the right strategies in place to manage these dynamics is key to ensuring a successful outcome.

Here are some essential strategies for navigating multi-party mediations:

1. Clear Communication from the Start Establishing clear lines of communication early in the process is essential. This includes not only communication between the mediator and each party but also fostering open communication between the parties themselves. It’s important to ensure that everyone has the opportunity to express their concerns, interests, and objectives. Setting clear ground rules at the outset can help prevent misunderstandings and ensure that all voices are heard.

2. Identifying Common Interests While the parties may have differing positions, identifying their common interests is a critical step in moving toward a resolution. These shared goals or concerns can serve as a foundation upon which to build agreements. As a mediator, I focus on uncovering these commonalities to shift the conversation away from conflict and toward collaboration.

3. Managing Power Dynamics In multi-party mediations, power imbalances between parties can hinder progress. Some parties may feel marginalized or pressured by more dominant participants. It’s the mediator’s role to ensure that all parties have equal standing in the process and feel comfortable expressing their positions. Balancing these dynamics helps maintain a fair and constructive environment.

4. Using Breakout Sessions (Caucuses) Caucuses, or private meetings with individual parties, are a powerful tool in multi-party mediations. These sessions allow the mediator to address specific concerns or challenges without the pressure of the group. Caucuses can also provide a safe space for parties to reconsider their positions and explore alternative solutions more freely.

5. Creating a Structured Process Multi-party mediations can quickly become chaotic without a structured approach. Setting an agenda, organizing the order of discussions, and managing time effectively are essential for keeping the process on track. A clear structure ensures that all issues are addressed in an organized manner, preventing the mediation from devolving into confusion.

Successfully navigating multi-party mediations requires a combination of clear communication, strategic use of caucuses, and a focus on balancing interests and power dynamics. By employing these strategies, mediators can guide the parties through the complexity of multi-party disputes and help them reach a resolution that works for everyone involved.

For lawyers seeking a mediator experienced in handling multi-party cases, these strategies ensure that even the most complex disputes can be resolved efficiently and fairly.

The Mediator’s Toolbox: Essential Skills for Conflict Resolution

Wed, 11 Sep 2024 18:32:05 GMT

As a mediator, success hinges on a specific set of skills that help navigate the complexities of conflict resolution. Lawyers who book mediators for their clients expect someone who can handle a range of disputes effectively. It’s not just about facilitating conversations—it’s about using the right tools at the right time to reach a resolution.

Here are the essential skills every mediator must bring to the table:

1. Active Listening Effective mediation begins with listening—deep, active listening. This means not only hearing what’s being said but also picking up on the unspoken elements: body language, tone, and emotion. As a mediator, it’s essential to understand the concerns and motivations behind the words. This allows for a more accurate understanding of the issues and can help guide the parties toward mutual understanding.

2. Emotional Intelligence Conflict often brings heightened emotions, and managing these emotions is key. A mediator must remain calm, empathetic, and in control. Emotional intelligence allows mediators to read the room, acknowledge the feelings of all parties involved, and create a space where they feel heard and respected. This emotional awareness fosters trust and makes it easier to address the root causes of disputes.

3. Problem-Solving Mindset Mediators are, at their core, problem solvers. The ability to break down complex disputes, identify common ground, and propose creative solutions is crucial. Sometimes, the solution isn’t obvious. A skilled mediator helps parties explore alternatives and think outside the box to find an agreement that satisfies everyone.

4. Patience and Persistence Resolution doesn’t always come quickly. A mediator must be patient and persistent, encouraging the parties to stay engaged in the process, even when tensions rise. This persistence can make the difference between a deadlock and a breakthrough.

Mediation requires more than just facilitating discussion—it demands a toolbox of essential skills. From active listening and emotional intelligence to problem-solving and patience, these tools are what enable successful conflict resolution. As a mediator, I rely on these skills to guide parties toward outcomes that work for all involved.

How Recent Legal Changes Affect Arbitration Processes

Fri, 06 Sep 2024 00:41:13 GMT

How Recent Legal Changes Affect Arbitration Processes

In recent years, the legal landscape surrounding arbitration has experienced significant shifts. These changes have profound implications for how arbitration is practiced and how legal professionals should prepare for arbitration proceedings. As an expert in mediation and arbitration, I've observed these trends closely and have several key insights to share.

1. Enhanced Disclosure Requirements Recent legal reforms have placed greater emphasis on transparency in the arbitration process. Enhanced disclosure requirements mean that arbitrators must now disclose any potential conflicts of interest more rigorously. This change aims to increase trust in arbitration as a fair and unbiased method of dispute resolution.

2. Broader Scope for Arbitrability Changes in statutory laws have broadened the scope of arbitrability, allowing more types of disputes to be eligible for arbitration. This expansion means that areas previously restricted to litigation can now benefit from the efficiency and privacy of arbitration. Legal professionals need to stay updated on these changes to better advise their clients on the best dispute resolution method.

3. Stricter Enforcement of Arbitration Agreements Courts are now more stringent in upholding arbitration agreements, aligning with a global trend towards favoring arbitration over court litigation. This enforcement supports the finality and binding nature of arbitration decisions, but it also requires parties to be more precise when drafting arbitration clauses.

4. Increased Use of Technology Legislative updates have also embraced the use of technology in arbitration processes. This includes the acceptance of virtual hearings and electronic submissions, which were particularly accelerated by the pandemic's constraints. Adapting to these technological changes is essential for modern arbitration practices.

The recent legal changes impacting arbitration require us to stay informed and adaptable. By understanding these developments, we can better navigate the evolving arbitration landscape, ensuring effective and fair dispute resolution for our clients.

Avoiding Impasse: Techniques to Keep Mediation Moving Forward

Thu, 29 Aug 2024 23:08:02 GMT

As a mediator with extensive experience in the field, I understand that reaching an impasse can be one of the most challenging aspects of mediation. An impasse occurs when the parties involved feel stuck and unable to move forward towards a resolution. Overcoming this barrier is crucial to the success of mediation, and there are several techniques that can help mediators and legal professionals navigate through these standstills.

1. Reframing the Issue One effective technique is to reframe the issue in a way that presents the problem from a different angle. This can help unlock new viewpoints and possibilities. As mediators, we can facilitate this by asking open-ended questions that encourage parties to think about their interests and objectives differently, thereby opening the door to new solutions.

2. Identifying Underlying Interests Often, parties become fixed on their positions without expressing the underlying interests motivating these positions. By guiding the discussion towards underlying interests, we can uncover new areas of agreement or compromise that were not initially apparent. This approach moves the conversation from rigid positions to a more flexible exploration of possible outcomes that could satisfy all parties.

3. Encouraging Incremental Concessions Another effective method to avoid impasse is encouraging incremental concessions. Small concessions can lead to a breakthrough in negotiations, as they demonstrate goodwill and encourage reciprocity from the other party. As mediators, it’s our role to recognize and highlight these opportunities for compromise, reinforcing the benefits of each concession.

4. Utilizing Caucus Sessions When tensions run high, breaking into separate caucus sessions can be beneficial. These private meetings with each party allow mediators to delve deeper into the parties’ concerns and explore potential solutions without the pressure of the opposing party’s immediate reactions. Caucuses can provide a safe space for parties to reconsider their positions and the feasibility of alternative solutions.

5. Introducing Creative Solutions Sometimes, traditional approaches to resolution don’t fit the complexity of the issue at hand. Here, introducing creative solutions or “out-of-the-box” thinking can be vital. As mediators, we can facilitate brainstorming sessions to explore unconventional solutions that parties might not have considered.

Avoiding impasse in mediation requires a mix of patience, creativity, and strategic thinking. Utilizing these techniques can help mediators keep the process moving forward, even when prospects seem bleak. By fostering an environment that encourages open dialogue and flexibility, we can guide parties towards a mutually satisfactory resolution.

Arbitration vs. Mediation: Strategic Considerations for Legal Professionals

Tue, 27 Aug 2024 22:42:48 GMT

As legal professionals, navigating client disputes requires a deep understanding of both arbitration and mediation. Each method offers distinct benefits and strategic advantages depending on the nature of the conflict and the desired outcomes of our clients.

Understanding Arbitration Arbitration is a dispute resolution process where an arbitrator, serving as a private judge, renders a decision after hearing arguments and reviewing evidence. It is akin to a judicial proceeding but is generally less formal, and the arbitrator’s decision is binding.

Key Advantages of Arbitration:

Efficiency: Arbitration can be faster than court litigation, making it an appealing option for resolving disputes swiftly.
Finality: The binding nature of arbitration ensures a definitive conclusion to the dispute, providing certainty and enforceability.
Expertise: Arbitrators are often experts in their fields, offering a depth of knowledge that can be crucial for technical or specialized disputes.

Mediation, on the other hand, involves a neutral third party who facilitates discussion and negotiation between disputing parties to help them reach a voluntary agreement. The mediator does not issue a decision but helps guide the parties toward a mutually acceptable resolution.

Key Advantages of Mediation:

Control: Mediation places the outcome directly in the hands of the parties involved, often leading to more tailored and creative solutions.
Confidentiality: Unlike the potential public nature of court proceedings, mediation remains confidential, protecting the privacy of the dispute and the parties.
Preservation of Relationships: Mediation can help maintain or even improve relationships by fostering communication and cooperation.

The choice between arbitration and mediation should be guided by the specific needs and goals of the client:

Arbitration is preferable when a definitive and authoritative decision is required, especially in cases where parties are unlikely to collaborate effectively.
Mediation is ideal when parties are willing to negotiate and seek a more harmonious resolution.

Both arbitration and mediation serve as valuable tools in our dispute resolution toolkit. By assessing the specific circumstances and desired outcomes of our clients, we can better advise them on the appropriate path, ensuring both effective resolution and client satisfaction.

The Role of Emotional Intelligence in Effective Mediation

Wed, 21 Aug 2024 16:02:33 GMT

As a seasoned mediator, I have come to appreciate the profound role that emotional intelligence plays in the resolution of conflicts. Emotional intelligence, the ability to recognize, understand, and manage our own emotions and those of others, is a cornerstone of effective mediation. It enables mediators like myself to navigate complex emotional landscapes and guide parties towards a mutually satisfactory resolution.

Effective mediation requires more than just legal and procedural knowledge; it demands acute sensitivity to the emotional undercurrents of a dispute. Recognizing subtle cues such as tone of voice, facial expressions, and body language can provide critical insights into the parties' true feelings and intentions. This awareness helps in adjusting strategies and communication styles to address underlying concerns that may not be explicitly stated.

Mediation often involves heightened emotions. As a mediator, harnessing emotional intelligence means creating an environment where all parties feel safe and respected. This involves managing not only one's own emotions but also influencing the emotional climate of the mediation room. It is about diffusing tensions, fostering empathy, and encouraging constructive dialogue.

At the heart of emotional intelligence in mediation is the capacity to foster empathy. By helping parties understand each other’s emotional states and perspectives, a mediator can break down barriers to communication. Empathetic communication encourages parties to move beyond their entrenched positions and consider alternative solutions that acknowledge the interests and emotions of all involved.

Embracing emotional intelligence in mediation enriches the mediator’s toolkit, providing the soft skills necessary to complement legal expertise. It enhances the mediator’s ability to guide parties through emotionally charged waters towards a resolution that is not only agreeable but also enduring. In the complex dance of negotiation, emotional intelligence is indeed an indispensable partner.

Ethical Considerations in Mediation: Ensuring Fairness and Neutrality

Wed, 14 Aug 2024 16:30:02 GMT

In the practice of mediation, upholding ethical standards is crucial to ensuring fairness and neutrality. As a mediator, I am committed to fostering an environment where all parties feel equally respected and heard. This commitment not only supports the integrity of the mediation process but also enhances its effectiveness in achieving lasting resolutions.

1. Maintaining Neutrality

One of the core ethical responsibilities of a mediator is to remain neutral. This means avoiding any bias or favoritism towards any party. It’s essential for mediators to manage their own beliefs and emotions, ensuring they do not influence the proceedings. This neutrality helps build trust with all parties involved, making them more likely to engage openly in the process.

2. Ensuring Confidentiality

Confidentiality is another cornerstone of ethical mediation. Protecting the information shared during sessions is vital for maintaining the trust of all participants. This commitment to confidentiality encourages parties to communicate more freely, which can lead to more effective problem solving and resolution.

3. Promoting Fairness

As a mediator, it is my duty to ensure that the mediation process is fair. This involves giving each party equal opportunity to present their case, ask questions, and express their concerns. Ensuring fairness also means that any agreements reached are made voluntarily by all parties, without undue influence or pressure.

4. Commitment to Voluntary Participation

Mediation is based on the principle that all parties choose to participate willingly. As a mediator, ensuring that participation is voluntary is crucial for the integrity of the process. This ethical practice supports the autonomy of each participant and respects their right to make decisions about their involvement in the process.

Ethical practices in mediation are fundamental to its success. By adhering to principles of neutrality, confidentiality, fairness, and voluntary participation, mediators can provide a trustworthy and effective environment for dispute resolution. My commitment to these ethical standards is unwavering, as I believe they are essential for helping parties achieve equitable and enduring outcomes.

The Impact of Virtual Mediation on Dispute Resolution Efficiency

Tue, 06 Aug 2024 17:11:48 GMT

The advent of virtual mediation has transformed the landscape of dispute resolution, introducing efficiencies that were once thought impossible. As we continue to integrate digital tools into legal processes, it's essential to understand how virtual mediation has enhanced the efficiency of resolving disputes.

1. Increased Accessibility Virtual mediation has made it easier for parties to engage in the mediation process from any location. This accessibility reduces delays caused by geographic constraints and allows for more flexible scheduling, ensuring that all relevant parties can participate without the need for travel.

2. Reduced Costs One of the most significant benefits of virtual mediation is the reduction in costs. Parties save on travel expenses, room rentals, and other logistical costs associated with in-person mediation. This makes mediation more affordable and accessible, especially for smaller businesses and individuals.

3. Time Efficiency Virtual sessions can be arranged more quickly than in-person meetings, which often require coordinating multiple schedules and travel plans. Online platforms enable mediators and disputants to convene at short notice, significantly speeding up the resolution process.

4. Enhanced Document Sharing and Security Modern virtual mediation platforms offer sophisticated tools for sharing documents securely and efficiently. This capability ensures that all parties have immediate access to necessary documentation, which can be reviewed in real-time, facilitating more informed discussions and quicker decision-making.

5. Maintaining Personal Connection Despite being conducted online, virtual mediation still allows for a personal connection between parties. Video conferencing tools enable participants to observe body language and tone, which are crucial for understanding and empathy in negotiations.

Virtual mediation has undeniably increased the efficiency of dispute resolution by making the process more accessible, affordable, and swift. As we continue to embrace digital solutions, the potential for further enhancing mediation efficiency is vast. Embracing virtual mediation is not just adapting to new technologies; it's about improving the way we resolve conflicts.

The Importance of Early and Detailed Position Statements in Mediation

Fri, 02 Aug 2024 18:08:05 GMT

As a mediator, one of the most important steps to a successful mediation is getting a clear and detailed position statement from the parties involved.

Why Early Statements Matter

When a mediator is hired, they often don’t know much about the case until they receive the position statements. Getting this information early helps the mediator understand the details and prepare better. This preparation is key to guiding the parties towards a resolution effectively.

The Role of Pre-Caucus Meetings

Pre-caucus meetings, where the mediator talks to each party separately before the main mediation, are crucial. These meetings allow the mediator to hear from each side and start building trust. A thorough position statement makes these meetings more productive because the mediator already knows the case well and can ask the right questions.

Tips for a Good Position Statement

Be Clear: Write clearly about what the issue is and what you hope to achieve.
Be Detailed: Include all the important facts and figures so nothing important is missed.
Be Early: Try to send your position statement well before the mediation date so the mediator has enough time to prepare.

By providing early and detailed position statements, parties can greatly improve the effectiveness of their mediation. It sets the stage for a smoother process and helps ensure that everyone is working towards a solution right from the start.

Proud to be Named Fellow of The American College of Civil Trial Mediators

nancy@livingproofconnection.com (Nancy Jones) — Mon, 29 Jul 2024 20:09:22 GMT

I am honored to share that I have been named a Fellow of The American College of Civil Trial Mediators. This recognition is a significant milestone in my career, reflecting a commitment to the highest standards of mediation practice.

The ACCTM is renowned for its dedication to excellence in civil trial mediation, and being part of this distinguished group is a true privilege. I look forward to collaborating with fellow mediators to advance our field and continue providing effective dispute resolution services.

Thank you to my colleagues and clients for your continued support and trust. Here’s to advancing the practice of mediation together!

Empowering Clients Through Mediation

Wed, 17 Jul 2024 15:31:32 GMT

In the complex landscape of litigation, mediation provides a unique opportunity for parties to take control of their disputes and reach resolutions on their own terms. As an experienced mediator, I have seen the significant benefits that mediation offers in empowering clients and fostering collaborative solutions.

One of the primary advantages of mediation is the control it grants to the disputing parties. Unlike traditional litigation, where a judge or jury dictates the outcome, mediation allows parties to shape their own resolutions. This empowerment extends to several key aspects:

Collaborative Approach: Mediation encourages parties to work together to find common ground and mutually beneficial solutions. This collaborative spirit can preserve relationships and promote positive outcomes.
Efficiency: Mediation often resolves disputes more quickly than litigation, saving time and resources for all involved. The flexible nature of mediation allows for tailored processes that meet the specific needs of the parties.
Cost-Effectiveness: By avoiding lengthy court battles, mediation reduces legal fees and other associated costs. This efficiency not only benefits the parties but also contributes to a more effective legal system.

For legal trial lawyers, advocating for mediation is about being part of the solution. It demonstrates a commitment to resolving disputes in a manner that prioritizes the client's best interests. By choosing mediation, lawyers can:

Empower Clients: Give clients a voice in the resolution process, enhancing their satisfaction and ownership of the outcome.
Promote Fairness: Facilitate equitable solutions that consider the needs and interests of all parties.
Enhance Professionalism: Showcase a forward-thinking approach to dispute resolution, reflecting dedication to achieving the best possible outcomes for clients.

Mediation empowers clients to take control of their cases, fostering collaboration, efficiency, and mutual satisfaction. As a mediator, my goal is to guide parties towards fair and effective resolutions that benefit all involved. Choosing mediation means being part of the solution, a choice that promotes a more harmonious and efficient legal system.

Perspective in Mediation

Fri, 12 Jul 2024 18:24:32 GMT

Balancing Strengths and Weaknesses

In the nuanced field of mediation, perspective plays a crucial role in balancing the strengths and weaknesses of a case. As an experienced mediator, I have observed that a clear, realistic perspective can make the difference between a successful resolution and a missed opportunity. Understanding how to leverage strengths while addressing weaknesses is essential for achieving fair and satisfactory outcomes.

Perspective in mediation involves looking at the case from all angles, considering not only the legal merits but also the practical implications for all parties involved. It requires an objective assessment of the strengths and weaknesses of each party’s position, as well as an understanding of the broader context in which the dispute exists.

Recognizing and leveraging strengths is vital in mediation. This can include strong evidence, compelling legal arguments, or the credibility of witnesses. However, it is equally important to present these strengths in a balanced manner, avoiding overconfidence that can hinder productive negotiations.

1. Evidence: Solid, well-documented evidence can be a significant strength. Ensure that all critical documentation is complete and presented clearly, supporting your case effectively.

2. Legal Arguments: Strong legal arguments can persuade the opposing party and the mediator. Highlight the most compelling aspects of your case while remaining open to negotiation.

3. Witness Credibility: The credibility of witnesses can bolster your position. Prepare your witnesses thoroughly and present their testimony in a manner that underscores their reliability and relevance.

Every case has its weaknesses, and acknowledging them is crucial for effective mediation. Being upfront about potential vulnerabilities can actually strengthen your negotiating position by demonstrating honesty and preparedness.

1. Gaps in Evidence: Identify any gaps or weaknesses in your evidence early on. Work to address these gaps where possible or prepare to explain them convincingly during mediation.

2. Legal Challenges: Be aware of any legal challenges that might undermine your case. Develop strategies to counter these challenges and mitigate their impact.

3. Potential Counterarguments: Anticipate the counterarguments the opposing party might present. Prepare rebuttals and gather additional evidence to reinforce your position.

As a mediator, my role is to help parties see their case from multiple perspectives, balancing their strengths with their weaknesses. This involves:

1. Objective Assessment: Providing an objective assessment of each party’s case, highlighting both strengths and weaknesses.

2. Facilitating Communication: Encouraging open and honest communication between parties to explore all aspects of the dispute.

3. Promoting Realism: Helping parties maintain a realistic perspective, avoiding overconfidence, and addressing vulnerabilities constructively.

In mediation, perspective goes hand in hand with understanding the strengths and weaknesses of a case. By maintaining a balanced perspective, parties can negotiate more effectively, leading to fair and satisfactory resolutions. Recognizing strengths, addressing weaknesses, and embracing an objective view are key components of successful mediation. As a mediator, I strive to guide parties through this process, ensuring that their perspectives are well-rounded and their outcomes are just.

Addressing Lost Wages and Lost Profits in Mediation

Tue, 09 Jul 2024 21:21:07 GMT

In the mediation process, certain components of damages can sometimes be underdeveloped, leading to missed opportunities for a fair settlement. One of the most frequently overlooked aspects is the accurate and comprehensive calculation of lost wages and lost profits. As an experienced mediator, I have seen how these elements, when not adequately addressed, can hinder the settlement process and result in less satisfactory outcomes for clients.

The Importance of Lost Wages and Lost Profits

Lost wages refer to the income an individual would have earned had they not been injured or otherwise incapacitated. Lost profits, on the other hand, pertain to the revenue a business might have generated if not for the disruption caused by the issue at hand. Both are critical components of damages in many civil litigation cases, and their accurate assessment is crucial for achieving a fair settlement.

Common Pitfalls in Calculating Lost Wages and Lost Profits

One common pitfall in mediation is the failure to thoroughly develop and present evidence of lost wages and lost profits. This can occur for several reasons:

1. Incomplete Documentation: Parties often fail to provide comprehensive documentation to support their claims. This includes pay stubs, tax returns, financial statements, and business records.

2. Lack of Expert Analysis: Calculating lost wages and profits can be complex, often requiring expert analysis from accountants or economists. Without this expert input, the calculations may be imprecise or incomplete.

3. Failure to Anticipate Challenges: Opposing parties may question the validity of the claims, particularly if the documentation is lacking or the calculations are unclear. Anticipating these challenges and preparing robust responses is crucial.

To avoid these pitfalls and ensure that lost wages and lost profits are adequately addressed in mediation, consider the following strategies:

1. Thorough Preparation: Gather all necessary documentation well in advance of the mediation. This includes not only basic financial records but also any supplementary materials that can substantiate the claims.

2. Engage Experts: Consider hiring financial experts who can provide detailed analyses and testify to the accuracy of the lost wages and lost profits calculations. Their expertise can add significant credibility to the claims.

3. Clear Presentation: Present the evidence in a clear and organized manner. Use charts, graphs, and summaries to make the information accessible and understandable to all parties involved.

4. Anticipate Counterarguments: Be prepared to address potential challenges from the opposing party. This might involve preparing rebuttal evidence or having experts on hand to respond to questions.

In mediation, addressing lost wages and lost profits comprehensively can make a significant difference in the outcome. By ensuring that these components are thoroughly developed and supported by solid evidence, parties can avoid missed opportunities and work towards a fair and satisfactory settlement. As a mediator, my goal is to help parties recognize the importance of these damages and guide them in presenting their claims effectively.

Mediation – Empowering Parties to Control Their Case

Tue, 02 Jul 2024 23:25:53 GMT

In the often tumultuous world of litigation, the power to control the outcome of a case is a highly sought-after advantage. Mediation offers this unique opportunity, allowing parties and their clients to bring their disputes to a conclusion on their own terms. As an experienced mediator, I have witnessed firsthand the transformative impact mediation can have on the resolution process. By choosing mediation, legal trial lawyers can empower their clients to become active participants in crafting a solution that best meets their needs.

Taking Control of the Outcome - One of the most compelling benefits of mediation is the ability it gives parties to take control of their case. Unlike the unpredictable nature of courtroom battles, where a judge or jury determines the outcome, mediation allows the disputing parties to negotiate and reach a mutually agreeable resolution. This level of control is invaluable, as it enables clients to have a direct say in the terms of their settlement.

A Collaborative Approach - Mediation fosters a collaborative environment where parties can openly discuss their issues and work towards a solution. This approach contrasts sharply with the adversarial nature of litigation, where the focus is often on winning at the expense of the other party. In mediation, the goal is to find common ground and achieve a resolution that benefits all involved. By facilitating open communication and encouraging compromise, mediation helps parties move beyond their initial positions and consider the broader context of their dispute.

Efficiency and Finality - Another significant advantage of mediation is its efficiency. Court cases can drag on for months or even years, consuming considerable time, money, and resources. Mediation, on the other hand, can often bring a case to conclusion much more quickly. This expedited process not only saves valuable resources but also provides parties with the finality they seek. Reaching a settlement through mediation allows clients to move forward without the lingering uncertainty that accompanies prolonged litigation.

Being Part of the Solution - For legal trial lawyers, choosing mediation for your clients is about being part of the solution. It demonstrates a commitment to resolving disputes in a manner that prioritizes the clients’ best interests. By advocating for mediation, you empower your clients to play an active role in determining the outcome of their case. This proactive approach can lead to more satisfactory and sustainable resolutions, as clients are more likely to adhere to agreements they had a hand in crafting.

To encourage mediation, it is essential to:

1. Educate Clients: Inform your clients about the benefits of mediation, including the control it offers, the collaborative nature of the process, and the efficiency it brings.

2. Prepare Thoroughly: Approach mediation with the same level of preparation and dedication as you would a trial. Being well-prepared ensures that you can effectively advocate for your client’s interests during negotiations.

3. Embrace Flexibility: Encourage your clients to remain open-minded and flexible during mediation. Emphasize the importance of compromise and the potential for creative solutions that litigation might not offer.

Mediation is a powerful tool that allows parties and their clients to take control of their case and achieve resolution on their terms. By choosing mediation, legal trial lawyers can help their clients become active participants in the dispute resolution process, leading to more satisfactory outcomes and a greater sense of finality. As an experienced mediator, I strongly advocate for the use of mediation to empower clients and bring cases to a timely and effective conclusion.

Missed Mediation Settlement Opportunity

Wed, 26 Jun 2024 17:24:26 GMT

In the realm of civil litigation, one of the most significant missed settlement opportunities is the failure to provide relevant data to opposing counsel in a timely manner. This oversight can have a profound impact on the outcome of mediation, particularly when the plaintiff is seeking a substantial monetary recovery from the defense.

The Role of the Adjuster

In typical civil litigation, the adjuster—who acts as the money decision-maker—relies heavily on data to determine the level of authority or the amount they are willing to pay to resolve a claim. This authority is not set arbitrarily; it is based on a thorough analysis of records, liens, lost wages, and other damages. The adjuster sets this authority well in advance of the mediation, often at least 30 days prior.

For larger claims, particularly those exceeding $100,000, the authority is usually established by a panel or group of adjusters and supervisors, further underscoring the need for comprehensive data well ahead of the mediation date.

The Importance of Timely Documentation

To achieve a large financial recovery, it is imperative to provide appropriate documentation at least 30 days before mediation. This allows the adjuster ample time to analyze the data and set an appropriate level of authority. Failing to do so can significantly undermine the settlement process. If the adjuster receives critical information only at the mediation or immediately before, they will not have the ability to increase their authority on the spot, resulting in a missed settlement opportunity.

Mitigating Missed Opportunities

To avoid these missed opportunities, it is essential to:

1. Prepare Early: Gather all necessary documentation—medical records, financial statements, evidence of damages—well in advance.

2. Communicate Clearly: Ensure that all relevant data is communicated to the opposing counsel and the adjuster at least 30 days before the mediation.

3. Anticipate Questions: Be ready to address any potential questions or concerns that the adjuster or their panel might have about the documentation provided.

By adhering to these steps, you can significantly improve the chances of a successful mediation outcome. Ensuring that the adjuster has all the relevant data well in advance allows them to make informed decisions and increases the likelihood of achieving a favorable settlement.

In mediation, timing is crucial. Providing relevant data to the opposing counsel and adjuster well before the mediation date is essential for a successful settlement. This preparation helps avoid missed opportunities and paves the way for a more efficient and effective resolution process. As a mediator, I emphasize the importance of timely and comprehensive data sharing to ensure that both parties can negotiate from a position of strength and clarity.

Verdict Value vs. Settlement Value

Thu, 20 Jun 2024 21:45:07 GMT

In the pursuit of justice through litigation, the concepts of verdict value and settlement value represent two distinct paths. Understanding and reconciling these differences is crucial during the mediation process.

Verdict Value: The Win, Win, Win Approach

Verdict value is the potential maximum a plaintiff might receive if the case goes to trial and results in a favorable jury decision. This value is often associated with winning big—punitive damages, pain and suffering, and other compensations that paint a picture of ultimate success. However, this approach is inherently adversarial. The client hires a lawyer, the lawyer investigates the case, and together they prepare for a courtroom battle, hyper-focused on winning and achieving a favorable verdict.

This win-at-all-costs mentality can condition clients and lawyers to view conflict and litigation as the primary path to success. The courtroom becomes the arena where justice is fought for and won. But this mindset also comes with significant risks and uncertainties. Trials are unpredictable, and the outcome depends on numerous variables, including the jury’s perception and the presentation of evidence.

Settlement Value: The Path to Compromise and Peace

In contrast, settlement value represents a more pragmatic approach. It is the amount for which a case can realistically be settled outside of court, often lower than the potential verdict value but offering certainty and speed. Settlement discussions focus on compromise, mitigation, resolution, and finality—a stark departure from the conflict-driven nature of litigation.

Mediation shifts the focus from adversarial to cooperative. Instead of preparing for battle, parties work together to find middle ground. The aim is not to win, but to resolve the dispute in a way that provides a fair outcome for both sides. This process emphasizes the concept of a “bird in the hand”—a guaranteed, tangible settlement rather than the uncertain promise of a large verdict.

Reconciling the Differences in Mediation

During mediation, it is essential to reconcile these differing mindsets. Lawyers and clients must transition from the conflict-oriented approach of litigation to the collaborative nature of mediation. This involves embracing the principles of compromise and understanding that a fair settlement can be more beneficial than the risks associated with pursuing a maximum verdict.

As a mediator, my role is to facilitate this transition. By providing a realistic perspective on both verdict and settlement values, I help parties navigate the complexities of their dispute and find a resolution that minimizes risk and maximizes mutual benefit. Mediation is about finding balance—achieving a resolution that brings peace and finality rather than prolonged conflict.

In conclusion, understanding the stark differences between verdict value and settlement value is crucial in mediation. By focusing on compromise and practical resolution, mediation offers a path to peace and finality that litigation often cannot provide. My goal as a mediator is to help you embrace this process and achieve a fair and mutually beneficial settlement.

Pensacola mediator Charlie Peppler joins Schreiber ADR

Mon, 27 Nov 2023 15:15:51 GMT

Charlie Peppler's value as a mediator and arbitrator is enhanced by his more than 45 years in private litigation practice and service as the Pensacola City Attorney and as a deputy Escambia County attorney.

Allen Schreiber named Lawyer of the Year in Mediation

Fri, 18 Aug 2023 17:25:49 GMT

The Best Lawyers in America® has named Allen Schreiber the 2024 "Lawyer of the Year" (Birmingham) in Mediation.

Steve Ford joins Schreiber ADR’s mediation panel

Thu, 11 May 2023 16:37:49 GMT

Tuscaloosa litigator and mediator Steve Ford brings to his ADR engagements over 45 years of litigation experience and more than 30 years of mediation in a wide variety of civil disputes.

ADLA: Schreiber, St. John, McCallum present mediation webinar

Tue, 18 Apr 2023 16:48:22 GMT

On April 18, Schreiber ADR mediators Allen Schreiber , Gaynor St. John and Phillip McCallum presented " Mediation: Mistakes to Avoid - Beginning to End " for the Alabama Defense Lawyers Association .

The presentation included tips for practicing attorneys regarding common mediation mistakes that create obstacles to a successful settlement. Topics included:

Scheduling
Preparation
Position Statements
Pre-meditation caucus
Initial demand/offers
Caucusing, client participation, inclusion
Confidentiality
Bracketing
Final settlement agreement/adjournment

We welcome Judge David Jordan to Schreiber ADR

Fri, 10 Mar 2023 14:54:11 GMT

Former litigator and retired judge J. David Jordan is the latest distinguished neutral to join the lineup of Schreiber ADR mediators and arbitrators.

Schreiber ADR welcomes Jonathan Lowe

Thu, 23 Feb 2023 16:46:07 GMT

General civil matters
Personal injury
Commercial litigation
Construction litigation
Employment litigation
Workers’ compensation
Manufactured and modular home litigation
Domestic relations
Real estate and probate disputes

His balanced experience in tort disputes is exemplified by his memberships in the Alabama Defense Lawyers Association (ADLA) and the Alabama Association for Justice (ALAJ).

Jonathan is a past president (2008-2009) of the Winston County Bar Association and is a member of the Marion County and Madison County bar associations and the Society for Human Resource Management (SHRM).

The University of Alabama alumnus earned his law degree in 1994 at the Cumberland School of Law at Samford University.

Active in the community, Jonathan has served on the board of directors of the Haleyville Chamber of Commerce since 2015, is a member of the Haleyville Industrial Development Board, and has been inducted into the Winston County Sports Hall of Fame.

Judge Robert Smith Vance joins Schreiber ADR

Thu, 16 Feb 2023 04:22:09 GMT

We are very pleased to welcome Judge Robert Smith Vance, Jr., who has joined Schreiber ADR after 20 years of distinguished service as a judge on Alabama’s 10th Judicial Circuit.

Allen Schreiber appointed to AL Supreme Court Commission on Dispute Resolution

Tue, 14 Feb 2023 15:13:22 GMT

Alabama State Senate President Pro Tem Greg Reed has appointed Allen Schreiber to a two-year term on the Alabama Supreme Court Commission on Dispute Resolution.

Richard Lord joins Schreiber ADR

Tue, 03 Jan 2023 15:40:42 GMT

professional liability
nursing home and assisted living facility negligence
auto accidents
first-party insurance
premises liability
ERISA claims.

Gaynor St. John joins Schreiber ADR

Fri, 09 Dec 2022 16:52:56 GMT

Gaynor St. John is a Fellow in the American College of Trial Lawyers, serving as the College’s Alabama State Chair, and has been inducted as an associate of the American Board of Trial Advocates.

Eating Lunch Together

Wed, 12 Oct 2022 17:10:49 GMT

In a recent mediation, we settled the case just as lunch arrived. Unexpectedly, the plaintiff asked me if we could all eat together, and the defendant agreed. It was the next step in preserving their relationship.

Silence: Another Language

Wed, 07 Sep 2022 15:49:19 GMT

I re-discovered the following about the art, and impact, of saying nothing.

By not filling the awkward silence, you are conveying your expectation that a party can find a way to move forward. In every such instance, by gently and firmly holding the silence, the party then can find the words, and a way, to persevere.

Silence allows attentive listening. Talking prevents attentive listening. It is difficult to listen when you are talking!

While you may not fill the silence with words, there is still communication between you and the parties

It is not the easy option!

As I look ahead to this fall and think about the changes I might make, I will be reminding myself that, by saying less, I may actually be doing more. And that, of course, has an impact far beyond the mediation room.

Co-Mediation

Mon, 18 Jul 2022 17:39:42 GMT

complex personal injury or contract disputes;
construction cases;
first-party insurance claims;
any matter with multiple parties; and
cases that have coverage issues along with liability issues.

Whether used in early dispute resolution or later in the litigation phase, a co-mediator can help work through issues and keep negotiations moving forward.

In insurance-related mediations, a co-mediator with knowledge of the inner workings of the insurance carrier can be especially helpful in processing the conversations and exchanges.

Similarly, in mediating complex matters (e.g., construction, coverage, or multiple-party cases), a co-mediator with particular expertise can offer knowledge and perspectives relevant to the technical and evaluative landscape of the negotiations.

Here are a few suggestions for how to strategically utilize skilled co-mediators, depending on the dynamics of the case:

Parceling works well when, for example, there is a coverage issue that needs to be hashed out at mediation to enable settlement. A co-mediator skilled in coverage can work with parties to determine what can be done around the issue to resolve the case.
Shuttling serves to work with the parties in finding points in common, to enable settlement options. Co-mediators use this shuttling technique to caucus separately (alternating rooms).
Concurrent caucusing is when both mediators shuttle together for a “tag-team” approach to stabilize and resolve issues.

Co-mediation is a proven tool to enhance the mediation process. The parties get the benefits of varied skills and perspectives, and the mediators are able to have a “buddy system” style to guide the negotiations and work through the mediation process efficiently and collaboratively. Everybody wins!

Call us for your next mediation or arbitration!

Phillip McCallum elected to Alabama Academy of Attorney Mediators

Wed, 15 Jun 2022 21:24:04 GMT

The AAAM’s stated purpose is to:

empower the role of attorneys as professionals in dispute resolution;
increase knowledge, awareness, and expertise in the art of mediation;
improve the effectiveness and skills of attorney-mediators;
promote the highest ethics qualifications and training standards for attorney-mediators;
develop contextually consistent forms for use in connection with court-annexed mediation;
work for the improvement of the existing court system; and
promote the use of court-annexed mediation and qualified attorney-mediators.

Words to a Country Song

Tue, 31 May 2022 18:23:39 GMT

During a recent mediation, I used this story. The lawsuit we were mediating was filed in a conservative venue, but there were definitely some country music lyrics in the case facts. Our discussions, along with some other important discoveries on both sides, led us to a resolution several days later.

I am not sure whether the story I relayed made any difference, but the point I want to share is just how valuable the mediation process was to a resolution.

The parties in a mediated dispute have an opportunity to discuss freely with each other their case’s settlement value. The mediation rules are established with strict confidentiality, which allows each side to exchange information openly, giving them the best possible chance to reach a compromise.

Lloyd, Gray, Whitehead and Monroe, P.C., recently celebrated together Jim's successful and accomplished career as he announced his retirement. Jimmy and his wife Shaun have been amazing friends of ours for over 30 years. If you know Jimmy, reach out and wish him the best for his future retirement plans.

Bracketing: Early May Be Better than Later ...

Thu, 14 Apr 2022 18:27:32 GMT

Many mediators use brackets as their only means to deal with impasse. Others say brackets should be used only late in the day, if at all. I have discovered that an early use of this negotiation technique might be very useful.

Phillip McCallum joins Schreiber ADR

Fri, 01 Apr 2022 18:53:50 GMT

Birmingham mediator and Alabama Star Bar past president Phillip McCallum has joined Schreiber Dispute Resolution. His areas of experience include personal injury, medical malpractice and wrongful death; automobile and trucking accidents; fraud and bad faith; class actions, mass torts and complex litigation; insurance coverage and bad faith; business litigation; construction litigation; and employment disputes.

Making Assumptions

Tue, 22 Mar 2022 22:22:28 GMT

During a mediation last week, one of the lawyers (whom I know well) looked at me and said, “Do you know one of the biggest mistakes many mediators make?” He went on to tell me that mediators frequently make wrong assumptions about the participants in the mediation:

Who are the decision makers?
Who are the lawyers?
Who prepared the case?
Who controls the purse strings?

I immediately thought back to several weeks earlier, when I walked into an initial conference with a plaintiff and mistook a lawyer for a paralegal.

“So how long have you been a paralegal?” I quipped. Her response was the date she had graduated from law school. Of course, I was very embarrassed by my quick, false assumption.

No matter how unbiased we strive to be, from time to time we all make assumptions about others based on ethnicity, age, race, gender and socio-economics. Making assumptions can derail our efforts to build rapport, show respect, and mediate most effectively.

I appreciated my colleague reminding me of the importance of walking into every mediation – or any gathering for that matter – with an openness to meeting new people and learning not only what role they play in the mediation, but also with an openness and curiosity about each individual story.

I look forward to learning more about your story and to meeting the involved parties in your case – without first making an unfair assumption!

Who Wants to Be a Mediator?

Tue, 15 Feb 2022 16:24:14 GMT

They found mediation to be immensely satisfying work.

They noted the value of patience, persistence, and legal experience in becoming successful in the mediation marketplace.

They also commented on the importance of mediation training, mentoring, practice, and marketing.

Finally, they commented on the challenges — and advantages — of turning to mediation as a second career.

If I can answer questions in your quest to become a mediator, please reach out to me; I will be happy to assist you on this journey. In the meantime, please consider me for your next arbitration or mediation.

Crossing the Line

Tue, 18 Jan 2022 15:53:26 GMT

Recently, a Massachusetts case circulated around the American College of Civil Trial Mediators, of which I am a member. The opinion denies a motion to dismiss by a divorce mediator who had been sued for legal malpractice arising from his drafting of a separation agreement.

While the case application in this venue and beyond divorce is unclear, it certainly has caught the attention of the mediation community and is likely to invite further debate on a topic that has often been discussed within our organization.

The reminder for all of us is the importance of memorializing a settlement agreement at the end of a successful mediation. Customarily, in Alabama, the mediator will propose a draft of the essential terms of an agreement. However, the attorneys – not the mediator – are required to draft and include all important terms of the agreement.

I often encourage parties to bring to the mediation a release for execution in the hopes that the case settles. By executing the final release on the day of the mediation, there is clarity of terms and the “closing” process is expedited, disposing of the need for post-mediation drafting of a final release.

In large or complex cases, the parties are advised to identify the various settlement terms that will be required early in the negotiation process, avoiding uncertainty at the end of negotiations.

This recent case is a good reminder that, although mediators may actively help inform both parties in negotiations, they may not give legal advice. Final decisions regarding the settlement terms are crafted by the disputing parties.

Implicit Bias

Wed, 15 Dec 2021 21:07:22 GMT

Has anyone ever told you, “This is as easy as riding a bike!”?

Last week, my wife introduced me to a YouTube video (below) about the incredible story of an engineer who taught himself, and his young son, how to ride a bike after the bike handles were reversed — such that when you turn the handlebars left, the bike would turn right, and vice versa.

Having biases is just like riding a bike … literally, you'll see. Once we form them (consciously or unconsciously), we retreat and rely on them with the same ease as riding, years after we learned how to ride. This video demonstrates just how powerful some biases can be.

In mediation, it is important to recognize your biases and take steps to control them. Some practical tips:

Step back and refocus.
Take a walk in your opponent’s shoes.
Listen attentively.

Biases are inevitable – as a mediator and as a negotiator. Managing bias becomes simpler, however, if you are prepared. Utilizing these techniques allows you to create specific strategies that you can use in your future mediations and negotiations, and you will see an impact on your effectiveness.

Feedback

Tue, 23 Nov 2021 20:08:17 GMT

An overly optimistic boy has parents who are trying to teach him to see the world more realistically. To that end, they decide to give him a large sack of horse dung for his birthday.

“What did you get?” asks his grandmother, wrinkling her nose at the smell.

“I don’t know,” cries the boy with delight, as he excitedly digs through the dung, “but I think there’s a pony in here somewhere!”

Receiving feedback can be like that. It’s not always pleasant. But there just might be a pony in there somewhere.

As I reflected on this, I was struck how mediation is an exercise of constant feedback. Each caucus has the mediator and the parties giving an analysis of each other’s position. There should be no surprise that this process is often frustrating and uncomfortable. We all should remember this when dealing with each other in mediations.

As a tangible way to improve my ability to receive feedback, I have added to my website a “Feedback” page (Contact Us > Feedback ), to be sent to participants in future mediations.

Counterintuitive

Thu, 21 Oct 2021 14:59:58 GMT

You want a mediator who can call on experience and intuition to point out the weaknesses to BOTH sides. Having a mediator who is able to negotiate both parties’ perspective, including your client’s position, is the clear choice.

An "Innocent Text"

Mon, 20 Sep 2021 20:47:04 GMT

Confidentiality is absolutely one of the most important features of mediation. If they are going to be candid with the mediator about settlement positions, strategies and other issues, litigants and their advocates must be able to trust the confidentiality of the process.

Re-Framing

Thu, 15 Jul 2021 17:43:59 GMT

I recently came across a book, which I read years ago, written by an FBI hostage negotiator named Chris Voss. In his book, Never Split the Difference: Negotiating as if Your Life Depended on It, Voss discusses how he applies what he learned in the business world to his negotiation strategies and tactics in law enforcement.

One of his key points is that humans are emotional beings who make emotional decisions and then try to rationalize those decisions.

Throughout the book, there are compelling examples of how, in response to emotional decisions and “logical” rationale, asking better questions, gathering more information, and re-framing conversations can lead to better outcomes.

I can readily apply that approach to my mediation practice.

A recent case involved a routine car accident. The facts of the case were simple., the subrogation amount seemed manageable, and the plaintiff had made a good recovery. Nevertheless, the plaintiff told his lawyer that he would never settle for less than $500,000, which was far above the value of the case.

So a mediation was scheduled.

During the first mediation caucus, I asked the plaintiff to explain why he thought his case was worth so much money. I soon recognized that the plaintiff:

had misconceptions about how the settlement money would be treated (he was unaware that any money he received would be treated favorably for tax purposes); and

didn't understand his outstanding medical bills (he had unknowingly received a significant invoice from an out-of-state medical provider which, if owed, would greatly impact the amount of settlement.

After resolving these issues, the case settled – for far less than the plaintiff’s $500,000 line in the sand. This is just a simple example of the importance of re-framing the conversation to determine what is driving a person’s judgement.

My most valuable takeaway from Voss’s book is that the better you listen, the more information you’ll receive, and the better the negotiation will be.

In the book, there are several basic mediation principles that you’re likely to recognize (and are probably using already) and may give you additional ways to improve your communication and listening skills.

Value of Life

Tue, 22 Jun 2021 17:10:36 GMT

I often discuss with parties, both the accused and the victim, that the hardest aspect of talking to individuals about their personal situation is correlating that experience into dollars. Almost always, both sides in mediation will admit that there is not enough money to compensate for someone truly damaged. So, if that is true, the whole mediation process requires reframing as to what the purpose of mediation is.

Mediation is an opportunity for parties to make a decision about what the law and jury may allow someone to award them for having suffered damage or injury. That is a wholly different analysis and must be explained to both sides during the process. Mediation is the thoughtful attempt by parties in a dispute to compromise not on the value of a life but what the law or jury may, or may not, compensate you for that injury or death.

Kenneth Feinberg has authored many interesting reads, including two books, What is Life Worth? and Who Gets What?

I hope you contact me to assist you in your next dispute.

Inattention Bias

Mon, 17 May 2021 15:56:09 GMT

In their book Thinking, Fast and Slow, psychologists Daniel Kahneman and Amos Tversky provide insights into understanding decision-making and consumer behavior. One of the authors’ most enlightening experiments, the “Invisible Gorilla,” dramatically illustrates the power each of us has to focus, often ignoring other facts.

In this experiment, people were asked to watch a video of two teams playing basketball – one with white shirts versus one with black shirts. The viewers were to count the number of passes made by members of the white team while ignoring the players passes who were wearing black. The task was mind absorbing. and participants were forced to use great focus on the assignment.

Halfway through the video, a person in a gorilla costume walked on-screen, thumped his chest a few times, and then exited. ( Watch the video. )

When questioned later, 50 percent of the people viewing the video never noticed the gorilla. Not only did they not notice the gorilla; they also refused to believe that they had missed seeing it.

A psychologist at Harvard medical school took this study one step further. He took a CT chest scan and superimposed a match-box size image of a gorilla into some of the scans. He then asked very experienced radiologists skilled in spotting tumors to view the scan and state whether they spotted anything out of the ordinary. More than 80 percent of these radiologists missed the gorilla, "... despite the fact that the eye-tracking monitor showed that many of the radiologists who did not see the gorilla had actually looked right at it."

These "Invisible Gorilla" experiments explain why attention plays such a key role in ultimate resolution. If mediation is to be successful, participants should consider all available information and avoid becoming hyper-focused on their position and certain aspects of their case.

Being in an environment where one can take a step back, consider all the information available, and think creatively will lead to resolution. Conducting your mediation at a comfortable and neutral location increases the likelihood that the attorneys and the parties can properly concentrate on alternate or innovative ways to resolve their conflict and avoid “losing sight of the forest for the trees."

Where you decide to mediate can help you avoid behavioral biases. Although a comfortable facility will not guarantee a successful resolution, there is little doubt that mediating with the right neutral, at the correct facility, greatly increases the chances of a settlement – and you seeing the gorilla in the room!

Our New Offices and Conference Rooms

Tue, 04 May 2021 17:32:01 GMT

I'm pleased to announce the opening of our new offices at 2231 20th Ave. S., Suite 202, in Birmingham .

The space plan, furnishing and decor have been crafted with the goal of providing a peaceful, comfortable environment that is conducive to productive discussions, negotiations and settlement.

See our offices and take a virtual tour!

Sanctions Reversed

Mon, 15 Mar 2021 17:16:02 GMT

“the phrase ‘full authority to settle' does not mean that the individual must be willing to settle. Nor is it 'a requirement that [the individual] must come to court willing to settle on someone else's terms. It simply means that the individuals at the settlement conference must be authorized by the parties both to explore fully settlement options and to agree at that time to any settlement terms acceptable to the parties."

Although significant costs stood, the court reversed the criminal sanctions that were imposed.

Confidentiality and control: two great reasons why the mediation process works. This case confirms why bringing the person with “authority to settle” is essential to the process.

Weakness or Strength: Zone of Potential Agreement

Mon, 15 Feb 2021 15:43:02 GMT

It is not a sign of weakness to give a well-reasoned demand or offer, it is a sign of knowing how to negotiate.

In my neighborhood this week, one person was selling a car and one was selling a house. My neighbor priced their house with a very fair number and within a day they had negotiated with a few interested parties and sold their home. My other neighbor was selling his car and advertised with a very high number. He expected he would just put a number out there, receive offers, and negotiate down. The car is still sitting in his driveway.

I’ve noticed that the cases that are the hardest to resolve often start with unrealistically high demands or unrealistically low offers. Conversely, the cases where the parties start with well-reasoned demands or well-reasoned offers, result in productive negotiation and ultimate resolution.

Someone who has their home on the market for an outrageous value does not invite interest, and someone who makes an offer at a mere fraction of a true value does not invite negotiation.

Also, when mediating, if clients hear unrealistic demands or offers, they often develop unrealistic expectations, creating another obstacle for resolution.

It may seem counterintuitive, but study after study shows that those who make reasonable, well researched demands and offers, those who are first to get into the zone of potential agreement (ZOPA), will have the best possible outcome for their client.

Listening: The Current Challenge

Fri, 15 Jan 2021 16:17:08 GMT

Masks. Zoom. Social distancing.

Listening.

A ll seasoned and successful negotiators will testify that listening to their side, the “other” side, and to a neutral third party are all crucial for a successful resolution of a dispute. Covid has made this skill more difficult.

Recently, I watched by video conference as a frustrated party was expressing their issues and anxiety while their lawyer was walking around the room.

Even when we do “live” mediations now, many are wearing masks, making hearing more difficult. The challenges of paying attention and listening are clearly compounded. Even in the best of times, I found people were unable to hear or listen in a way that would help resolution. Now it seems commonplace.

So, simple advice but effective results: Slow down. Listen. Consider what everyone is saying and make sure you show that you are listening by paying attention and by being considerate. The results will show.

2020 Wrap-Up: Changes in Mediation

Wed, 30 Dec 2020 18:44:42 GMT

1. Improve your Pre-Mediation Discussions. Spend more time on your mediation statement to give the mediator important details. What are the obstacles to settlement? What are the true strengths and weaknesses of your position? What is the status of negotiations? Conduct a pre-mediation phone call with the mediator before the mediation.

2. Flexibility. Zoom. Text. Email. Phone calls. All of these forms of communication should be implemented during the process. There are more obstacles for communication by being “remote,” so being patient and flexible will allow the process to work. Be flexible and open to different forms of moving the discussions forward.

3. Follow-Through. Make sure you use a mediator who, if the case does not settle, will follow up with the parties following the initial mediation. Give your clients an understanding that mediation is a process and often takes days or weeks to reach resolution.

Follow these three tips and you will definitely see an increase in your ability to resolve cases!

I hope everyone has a safe, and FESTIVE, New Year!!! I look forward to mediating or arbitrating for you in 2021.

Confidence Bias

Mon, 09 Nov 2020 14:48:20 GMT

Not all is good news for defendants, however. Although they may statistically do better at predicting outcomes, the 24% of the time the defendants are wrong ends up being much more costly to them. Defendants who fail to do better than the plaintiff’s last demand ended up with a verdict that was on average $1.1 million more than the plaintiff’s last demand. On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial.

Every experienced and honest litigator can point to cases they won when they didn’t think they had a chance of winning. Simultaneously, they can point to times when, “if there was any justice” they would have won, but lost. There simply is no way to accurately predict with absolute certainty the outcome of a litigated case, whether decided by a judge, a jury, or an arbitrator.

In mediation, the parties who consistently acknowledge, understand and actively work to address their biases have the best results. An open mind is often the best tool any attorney has to facilitate a resolution.

Confirmation Bias

Mon, 26 Oct 2020 15:14:41 GMT

Confirmation bias is the tendency to take on a thought or idea with an absolute certainty that we are correct, often causing us to fail to think. When you come to a mediation be prepared to represent your client, argue your case, and convince me of why you will ultimately prevail. But as a mediator I’m also there to present an alternative view.

Timing Your Next Mediation

Tue, 29 Sep 2020 22:53:17 GMT

1. Emotional Considerations

Throughout the litigation process, the parties often experience a roller-coaster of emotions. Sometimes, the longer the process, the more the parties are dug in and the less open they are to compromise or influence. Emotions may cloud judgement, and could prevent one or both parties from reaching a reasonable agreement. The parties could experience strong emotions at the outset of litigation, or perhaps months or years into the process. Awareness of your clients emotional state can enhance your ability to choose the timing of mediation.

2. Availability of Information and Documents

Almost every case relies upon some outside information when trying to reach a resolution. Negotiations at mediation will proceed far more smoothly and successfully if you have the information needed to make an informed decision.

3. Reducing Cost and Length of Litigation

Finally, mediation will usually have a significant impact on the costs of litigation. The sooner you attempt mediation, and hopefully reach an agreement, the less money you will spend on attorney’s fees and any related discovery costs.

Allen Schreiber a Webinar Co-Presenter re: Online Mediation - View CLE Video

Fri, 18 Sep 2020 16:58:56 GMT

On September 17, 2020, Allen Schreiber was one of three co-presenters in a CLE webinar, "How to Get the Best Experience from Online Mediation."

Circle of Control

Mon, 14 Sep 2020 18:39:04 GMT

It is my suggestion that litigators remind their clients that, other than choosing their lawyer, mediation may be the only opportunity they have to exercise control over the resolution of their case.

One Good Tip: Preparation Is Key!

Mon, 31 Aug 2020 17:13:38 GMT

When preparing for a remote or telephonic mediation, make sure the client has the proper technology; tell the client it might take longer to conduct the process remotely; coordinate logistics with the mediator; and if necessary, try a practice mediation or arbitration.

$620,141.36 in Sanctions!

Tue, 09 Jun 2020 00:08:12 GMT

This opinion underscores the importance of attending mediations in good faith, and the necessity of communication with all counsel.

Guidance for Remote Hearings

Tue, 12 May 2020 17:48:08 GMT

AAA Guidance includes:

AAA Virtual Hearing Guide for Arbitrators and Parties

AAA Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM

AAA Order and Procedures for a Virtual Hearing via Videoconference

According to the CPR, its Model Annotated Procedural Order addresses:

Selection of Videoconferencing Platform
Preparatory Activities
Requirements During the Proceeding
Documents and Witness Examinations
Enforceability

Please call or email me if you have additional questions about virtual arbitration hearing measures and best practices.

Rapport: Mediating While Socially Distant

Wed, 29 Apr 2020 23:57:42 GMT

There Is no opportunity to “size-up” the client representatives for the opposing parties in person.

There is almost always a technological problem.

There is DEFINITELY less opportunity to build a relationship with the client over the course of the mediation.

The remote process can be as effective as in-person mediation with preparation. One important suggestion I have for preparing for a telephone or virtual mediation is to invest more time than you otherwise would to build a relationship with your client going into the process. You will not have this opportunity during a remote mediation, and you will need to have the client’s trust if you need him or her to make a significant concession – which often becomes necessary in order to reach a deal. You can start building rapport by making contact with your client in advance. Reach out in advance to let the client know you are beginning to think about their case and to discuss the process and the information needed.

With proper planning and a conscious effort to build some rapport, remote mediation can be very successful.

Three Tips for a Successful Mediation

Thu, 23 Apr 2020 23:44:57 GMT

A few effective and basic tips can help you in preparing for the process: eliminate surprises, update your damages, and make a demand well before the mediation.

Key Tips for Successful Videoconferencing

Tue, 14 Apr 2020 17:41:19 GMT

CLOSE TABS - Close down all distractions. I repeat: minimize open tabs, close down your email alerts, and put your phone on silent.

MUTE - Mute as a habit. Get used to muting when in a gathering so you can cough, clear your throat, and avoid unexpected background noise like a blaring siren. This advice extends to your video as well, if you need to do something, and you are just listening, better to mute the video than to distract the audience.

Video conferencing is the present and the future. How we perform, how attentive we are to the small details, including our nonverbals matter.

Best Practices for Zoom Mediations

Wed, 08 Apr 2020 17:56:28 GMT

Use a unique and private meeting number for each conference.

Require participants to use a password to enter the meeting.

Warn participants to keep their meeting link and password secure.

Lock the meeting once all participants have joined using the “lock” function available to the meeting host.

Advise participants against accessing the meeting via a public network i.e. coffee shop etc.

Use the Zoom waiting room feature.

Although not a perfect system, I believe these steps can allow for a confidential and secure process to conduct a mediation/arbitration or business meeting. If you are still unsure about using this platform, just call me and we can discuss your conflict resolution options while navigating through this unique time.

ODR: Online Dispute Resolution

Tue, 24 Mar 2020 17:31:26 GMT

A few other tips:

Make sure the participants take a break from other work or distractions and “reserve the time” as needed for the mediation.

To ensure the confidentiality of the process Do not allow the participants to be in a place (Starbucks, the library, McDonald’s, etc.) where others are congregated.

Be in an interruption-free zone!

Have a cell number or contact information of the host mediator in case of technological failures or hiccups!

20/20: A Clear Vision for Conflict Resolution in the Next Century

Wed, 18 Mar 2020 18:02:57 GMT

Telephonic mediations and/or video conferencing performed via short phone calls and text messages throughout the day

A streamlined process which saves you valuable time

Initial caucuses up to one hour provide a cost effective alternative

A proven process already widely used in other countries

Keys to Successful Email Negotiation

Tue, 18 Feb 2020 17:36:54 GMT

LESS IS MORE - keep your email to less than five sentences.

SET UP THE EMAIL - do not catch the other side off guard. Start off by mitigating the negatives first.

LAND IT - take the time to soften the tone!

ALWAYS END ON A POSITIVE NOTE - the last impression is the lasting impression.

Derek Gaunt wrote an article which is super helpful. I highly recommend the article and his blog.

Simple Ways to Improve Your Mediation Statement

Tue, 21 Jan 2020 23:53:10 GMT

What are the obstacles to resolution - i.e., what will the OTHER SIDE say or think about your case?
What do YOU perceive to be the obstacles to resolution?
Status of settlement discussions.

I read this great article with excellent points!

Hopefully by including these suggestions in your report it will help you attain a successful result.

Framing, Process and Empathy

Thu, 24 Oct 2019 23:38:09 GMT

Framing . Malhotra explains how important it is to present a proposal in an objective manner (i.e., one that is attractive to the other side).

Process . Using mediation statements and caucuses to move the parties from opening gridlock to resolution.

Empathy . Understanding the different perspectives of the other party. It is imperative for the mediator to assist the parties in seeing the conflict from the other party’s point of view, motivations, interests and constraints.

If you need help with resolving a case, give me a call. I would love to assist you in getting your difficult case to resolution.

Who Should Participate in the Mediation?

Tue, 01 Oct 2019 23:30:54 GMT

Having the necessary people at mediation (either in person or by some other means previously agreed to) will have a significant impact on whether the session is successful. See also: A View from the Middle of the Table: A Mediator’s Practical Observations and Recommendations (John E. Bulman)

Allen Schreiber on Mediation and Arbitration

The Real State of the Litigation Backlog in the Southeast

The Real State of the Litigation Backlog in the Southeast

What the Backlog Actually Looks Like

The Hidden Cost of Delay

Strategic Implications for Lawyers

Why Mediation Is Moving Earlier

The Opportunity in the Current Environment

What Great Trial Lawyers Do Differently in Mediation

Habits that consistently lead to resolution

They Prepare for Resolution, Not Just Argument

They Know Their Case—and Its Weaknesses

They Prepare Their Clients for the Process

They Use the Mediator as a Resource

They Manage the Tone of the Negotiation

Final Thought

Why “We’ll See What the Judge Does” Is Often the Most Expensive Strategy

But in reality, it is often one of the most expensive decisions a client can make .

The Illusion of Certainty

The Cost of Waiting

The Risk of Binary Outcomes

A Better Question

The Mediator’s Role

Mediating Multi-Party and Multi-Insurer Cases Without Chaos

How to structure complex mediations for clarity, momentum, and resolution.

Complexity Changes the Dynamics of Negotiation

Sequencing Matters More Than Numbers

Managing Competing Interests

The Role of the Mediator as Process Manager

Preparation Is Critical

Final Thought

The Economics of ADR: Cost Comparisons Clients Actually Care About

﻿

Why mediation and arbitration often make financial sense long before trial

The True Cost of Litigation

Mediation: The Most Cost-Efficient Resolution Tool

Arbitration: Efficiency with Finality

The Value of Certainty

ADR as a Strategic Business Decision

Final Thought

Preparing Expert Witnesses for Mediation (Not Trial)

Why expert presentations should change in ADR

Mediation Is About Risk Evaluation, Not Persuasion

Clarity Is More Valuable Than Technical Detail

The Goal Is to Inform the Negotiation, Not Dominate It

Preparing Experts for the Mediation Environment

The Mediator’s Role in Expert Discussions

﻿

Settlement Authority: Why Cases Stall at the Table

And how lawyers can prevent it.

Authority Is About Decision-Making Power, Not Just Numbers

Why Authority Breakdowns Happen

The Cost of Limited Authority

Preparing for Authority Before Mediation

The Mediator’s Role in Authority Development

Using Mediation to Preserve Business Relationships

ADR as a business tool, not just dispute resolution

Conflict Does Not Always Mean the Relationship Is Over

Mediation Allows Solutions Courts Cannot Provide

Preserving Reputation and Confidentiality

The Human Element of Business Disputes

When to Consider Mediation for Relationship Preservation

Final Thought

The Psychology of Settlement

Why cases resolve based on people, not just law

Settlement Is a Decision About Risk, Not Right and Wrong

Emotion Is Always in the Room (Even When We Pretend It Isn’t)

Anchoring and Expectations Matter More Than Math

The Best Lawyers Prepare Clients for the Experience, Not Just the Argument

Trends in Verdicts and Settlement Values in Alabama

﻿ 1. Higher Verdicts in Plaintiff-Friendly Venues—But With Caveats

2. Insurers Are Reassessing Settlement Posture Early

3. Wrongful Death and Catastrophic Injury Cases Remain Unpredictable

4. Employment and Business Disputes Settling Sooner

What This Means for Your Practice

Designing the Mediation Process to Fit the Case (Not the Other Way Around)

Why Process Design Matters

Key Questions That Should Shape the Process

Examples of Custom Process Design

The Mediator’s Real Value

1. Higher Verdicts in Plaintiff-Friendly Venues—But With Caveats

How It Happens