SERVICES BEYOND TRADITIONAL
One of the main attractions to Alternative Dispute Resolution (ADR) is that the process can be shaped to meet the needs of its users. Choosing the right process is the most critical decision when trying to achieve the best possible outcome for your case. At ARM, we pride ourselves on being innovators in the ADR field and as such we offer integrated conflict alternatives that go beyond traditional processes. Our neutrals and case management team will actively engage clients in determining which well-designed dispute resolution solution is the best option for your unique circumstances.
In its simplest form mediation is facilitated negotiation between dissenting parties. This process involves a third party neutral, a mediator, who encourages productive discourse among the participants by providing analysis, reason and persuasion. The process is usually non-binding, confidential and the parties control the ultimate outcome. The mediator will not render a decision but will communicate the weaknesses, limitations and risks to both sides in an effort to reach a mutually agreeable settlement.
Each mediator has his or her own style and the most effective mediators alter their approach to fit the unique needs and personalities of a given dispute. At ARM, our neutrals offer more than just a facilitated negotiation. These are intensely focused sessions with the objective of resolving complex matters in the most efficient and expeditious manner possible. Our neutrals are trained to drill down on the issues, identify hidden interests and analyze the risks and limitations for all sides. In order to make the most out of a given session, ARM mediators begin their work several weeks in advance with a pre-mediation phone call.
Pre-mediation phone calls are typically between the mediator and counsel with the goal of assessing the posture of the parties; identifying the obstacles to the session, evaluating the dynamics and often filling in the blanks. It is during the pre-mediation phone call that the mediator begins to shape the process to meet the needs of your case. When the process is tailored to the specific matter at hand it increases the chances for settlement and all sides come to the table better prepared.
ARM neutrals also undertake intense preparation. They do more than just read briefs. They utilize tools like lexis nexis to assist them with thorough research on current legal issues, case law and business aspects. ARM neutrals want to know more about what’s going on in the mediation than anyone else in the case. They want to hit the ground running on the day of the mediation with as much information as possible, both factually and legally.
In the event that your case does not settle during the first session, ARM mediators practice diligent, comprehensive follow-up. Our mediators make sure that the parties understand why the case didn’t settle and they set forth a game plan for moving forward. Whether it’s via telephone or second session, ARM mediators will actively be engaged in the matter until it settles or until every conceivable option has been explored.
Co-mediation involves two or more mediators working together to resolve an often complex, multi-party dispute. Unique cases call for integrated conflict alternatives. ARM suggests co-mediation in those special circumstances where the combined expertise of two or more mediators will best assist the parties in exploring the broadest range of options and solutions.
The greatest misconception about co-mediation is that the process will be more costly. However, this alternative often results in shorter, more efficient mediations. For example, a case might require the authoritative disposition of a judge, but also the technical skill of an attorney mediator with specific subject matter expertise. Other cases might have gender sensitivities; thus having a male mediator coupled with a female mediator could have a significant impact on breaking impasse. The key here is that the process can be tailored to meet the needs of the parties and the intricacies of your unique circumstances. ARM case managers will work with you to assess whether your case would benefit from this integrated conflict management tool.
Arbitration is an adjudicatory process that is used in place of litigation to resolve a dispute. The parties select an individual arbitrator, or a panel of three arbitrators, who will listen to the arguments presented by each side, study the evidence, and then render a final decision in the case. Arbitration is a creature of contract, enabling the parties to tailor the process to fit their needs. As such, arbitrations proceed according to the rules selected by the parties. It is less complex than litigation so the rules of evidence are relaxed and the process is streamlined to limit discovery. Most arbitrations are final and binding, however, parties may choose to make the decision an advisory opinion.
The original intent behind arbitration was to provide an efficient, cost-effective alternative to often costly and protracted litigation. Over time, arbitration has become more like litigation with lengthy hearings and unlimited discovery. At ARM we offer an arbitration process that is expeditious, well-managed and most importantly, fair and neutral. Our arbitration panel has the experience, training, and industry-specific knowledge to manage the process with both fairness and skill to render an award that is final and binding.
Our case management team will help you to identify an arbitrator with the substantive expertise, temperament and training for your case. They will also suggest other integrated conflict alternatives to supplement your chances for settlement as many cases settle before, during or even after the arbitration hearings.
Jury verdicts are a gamble and can be difficult if not impossible to predict. A focus group can provide great insight to the parties as they prepare for a trial or even an upcoming mediation. At ARM we can tailor the process to meet your needs so that you can participate in a “dry run” of your trial strategy. Creating a video that demonstrates the strength of your case with juror reactions can assist with either getting a larger settlement or it can persuade the other side that their case might not be as strong as they think. ARM also has one of the most technologically advanced courtrooms in Nevada (give hyperlink with all the landing page for where the tech can be seen). We can find jurors who will reflect the demographic that you are looking for, making ARM the perfect location (with direct flights from almost all major cities) for such an endeavor.
DISPUTE REVIEW BOARD
At ARM we have several construction specialists on our panel available to serve on a Dispute Review Board (DRB). On large construction projects disputes will inevitably arise and in order to keep the project on track our Neutrals can be available to settle disputes on site and sometimes prevent future disputes from even happening. A DRB is generally composed of three neutral individuals who are selected by the Parties to the construction contract, usually the project owner (Owner) and the prime or general contractor (GC). The independent DRB is designated in the operative construction contracts to stay abreast of the design and construction and to attend and observe all pertinent meetings. Through this process, the DRB can quickly understand the nature and genesis of disputes that are blossoming—before they slow or stop the construction progress and depending on the authority vested in them by the contractual arrangement, render interim decisions that control until the construction is finished. This proactive onsite real-time dispute resolution will help protect working relationships, cash flows and schedule progress.
EARLY NEUTRAL EVALUATION
Early neutral evaluation is a confidential process that often occurs early in the pre-trial stage before the parties have invested significant time, resources and money. The parties will mutually agree to an ARM neutral with the requisite experience and background necessary to oversee the case. After listening to both sides about possible claims and supporting evidence, the neutral will assess the strengths and weaknesses of the case and provide assistance in finding common ground early on in the dispute. This informal process helps each side view the case from the other side’s perspective and the ARM neutral will offer an evaluation as to how the matter could be decided by a court along with best and worst alternatives as well as suggestions as to how the case could settle. The recommendations of the neutral are influential, non-binding and offered to help reach a negotiated agreement. This is an integrated conflict alternative that can save parties a lot of time and money. Many courts throughout the country settle approximately 30% of their docket by employing this technique.
APPELLATE REVIEW / CONSULTATION
A neutral third party and former Appellate Justice at ARM will review your case to determine what could happen upon appeal. The information gained may help in drafting an appellate brief and preparing for oral arguments. It may also be a means to communicate with clients regarding the likelihood of success or failure on appeal. These consultations range from a request for an opinion on whether or not to appeal, to reviewing and commenting on the briefs to preparation for the oral argument, and conducting moot arguments.
Often the parties to a dispute require discretion to avoid public disclosure of sensitive information. A private trial offers all the advantages of courtroom litigation in a private and confidential setting. It most closely resembles an actual court trial in that judgment may be appealed for errors of law or as against the weight of the evidence. The main difference is that the parties mutually agree to an individual, usually a retired judge, to sit as a “judge pro tempore” and render a decision.
Neutrals selected as private judges are appointed by a stipulation that is signed by the parties and filed with the court. The court then endorses the stipulation and the dispute is held in abeyance by the court until a decision is reached. The verdict is then entered in the court as if the trial were conducted there. Much like a normal trial, the decision of a private trial is subject to an appeal, which may also be conducted in a private setting. The parties are able to choose the presiding “judge” from ARM’s panel of neutrals.
Discovery Referees are most commonly used in complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These cases involve issues of confidentiality and privilege and tend to be document intensive. These disputes can be very time-consuming and the delays and inefficiencies of having the court supervise this process can be avoided by the appointment of a discovery referee. The Discovery Referee must take on a “hands-on” approach and actively manage the case by coordinating discovery and resolving discovery disputes so settlement discussions can be productive. The referee need not be a retired judge, but almost always a lawyer due to the nature of the appointment and the knowledge necessary to fulfill those duties.
A special master is appointed by a judge to oversee one or more aspects of litigation. They may be appointed pre-trial, during trial, or post-trial. The ultimate goal of the Special Master is to save time for judicial officers and reduce the litigation costs for the parties. They are usually tasked with overseeing discovery disputes, property distributions and allocations, as well as accounting, administering settlements and monitoring decrees. By virtue of their appointments, special masters often become temporary or quasi-judges, and in complex cases usually serve for periods ranging from many months to many years. Typically, the Special Master will recommend a solution to the Court. The Judge can accept the recommendation and make it a final order of the Court. The parties can give the Special Master as much authority as they want. This can often make the process go faster. Parties can also stipulate to make a Special Master’s decision on any issue “binding” or final.
One of the main attractions to ADR is that the process can be shaped to meet the needs of its users. Hybrid ADR Processes are often better suited to the particular circumstances of each conflict and the interests of all parties involved. A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one.
By way of example, Med/Arb is a combination of mediation and arbitration, in which the parties agree in advance that they will mediate but that, if the dispute is not resolved through mediation, they will proceed to binding arbitration. The parties generally determine in advance whether the same individual will serve as arbitrator if the dispute is not entirely resolved through mediation. Although the use of the same individual will usually be more efficient, some neutrals are reluctant to serve as mediator in a case in which they will also serve as arbitrator. Also, parties may be reluctant to share confidential information with a mediator who may later hand down a binding decision. Once the parties are familiar with a mediator, they may be in a better position to judge whether they would entrust the ultimate decision of the case to that individual.
ARM prides itself on being innovators in the field of ADR. Our case managers are available to work with you on crafting the best possible process for your case. From dispute review boards to med/arb or med/arb/med to mock trials and focus groups, ARM case managers will help you to determine which integrated conflict alternative is best suited for your case.
At ARM we not only want to provide you with your resolution roadmap, but we also strive to be your last stop in often long and protracted litigation.