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Dispute Resolution
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Climbing the Ladder: The New Flexible Tools for Dispute Resolution
By David Weeks
Chair’s Column ADR Committee Keeps Busy Schedule
By Hon. Marietta Shipley
Personality Profile: Shelby Grubbs
By David Weeks
Alternative Dispute Resolution: An Overview
By Chris Marshburn
From the Files of ...
Jocelyn Wurzburg
The Tennessee ADRC has been in place almost two and one-half years.
During that time it has struggled over questions regarding training,
mediator credentials, ethics in mediation, and the role of the
advocate during mediation. Many of its decisions have been codified
in Tennessee Supreme Court Rule 31 as amended.
The commission has been focused on developing a viable mediation
presence in Tennessee courts. To that end, it approved mediation
training courses that met a specified curriculum, distributed
training information, and worked with the Tennessee Judicial Conference
to encourage referrals of cases to mediation.
As of May 15, a total of 431 mediators have been approved as Rule
31 Neutrals. Of these, 254 were approved as general civil mediators,
77 were approved as family mediators, and 100 were approved for
both general civil and family cases.
The commission recently published a brochure on mediation that
is being distributed to the court clerks. It is designed for litigants
to acquaint them with the process and to encourage them to consider
using mediation. The brochure, as well as approved training information,
will soon be available on TBALink®. We encourage you to freely
download and distribute the brochure.
Those of you who have been approved as Rule 31 mediators will
receive a notice in the fall regarding renewal. In addition to
a renewal fee of $100, we will be seeking statistical data from
you regarding the number of Rule 31 mediations you have completed.
Increased empirical data concerning the number of referrals to
mediation and the number of mediations completed is a major goal
of the commission. We need your assistance to confirm or disprove
our feeling that mediation is alive and well and growing in Tennessee.
The next step for the commission is to develop a set of protocols
for the other ADR techniques listed in Rule 31. To this end, the
commission has been meeting to discuss the extent to which the
remaining techniques require specific training or credentials.
The commission anticipates finalizing this part of the rule by
the end of the year.
A recent development in Rule 31 mediation is a pilot project in
the Western Grand Division. Justice Janice Holder, who is the
court liaison with the commission, has established a mediation
project for workers compensation cases from that division that
are pending before the Supreme Court. She recently sent a letter
to all Rule 31 mediators residing in the Western Grand Division
inviting them to participate in the pilot as volunteers. Her invitation
was enthusiastically received and the pilot is up and running.
Approximately 24 cases will be selected for mediation with a view
to resolve the cases prior to oral argument. Attorneys in the
cases will be given the list of volunteer mediators, and will
be assigned a mediator if they cannot agree on one.
Questions concerning the appropriateness of a case for mediation
will be resolved by conference call.
On Nov. 30, 1992, we assembled about 20 attorneys in the offices
of the Tennessee Bar Association (TBA) for the first meeting of
the newly reassembled committee on Alterna-tive Dispute Resolution
(ADR). The enthusiasm was similar to a revival meeting. Words
like converted, enlightened, magic, and missionary work filled
the air as each attorney relayed personal experiences either with
mediation or with training received. In October 1990, when we
assembled 20 attorneys we had hardly heard of ADR. During the
next two years we leaped forward in knowledge and experience.
Under Shelby Grubbs’ guiding hand, we sponsored a well-attended
and impressive seminar in March 1992 and by August 1992 we had
a Supreme Court Commission on ADR.
This publication marks the seminal issue of a newsletter devoted
to creating a network of people interested in ADR. If you have
personal stories, information, comments, literature, or questions
please contact the editor, David Weeks, or call me at (615) 862-5905.
The following are committees, ideas, programs and other items
that the TBA/ADR Committee is following now:
• In November 1992 there was a full-day ADR seminar in Nashville
which 60 people (mostly business and corporate attorneys) attended.
• The TBA Committee members as well as the ADR Commission members
will provide speakers for any group that is interested in an introductory
program on ADR.
• David K. Taylor, chair of the CLE subcommittee is asking everyone
who is arranging CLE for their county bar associations and the
TBA or any other organization to add an ADR component to an existing
program. Contact David Taylor at Boult, Cummings, Conners & Berry,
222 Third Ave., Nashville, TN 37219 or call him at (615) 244-2582.
• Jean Crowe, chair of the Domestic Relations Subcommittee, is
putting together a plan for court-attached mediation in contested
cases. If you have any anecdotal mediation information or wish
to be a member of her committee, contact her at 244-6610 in Nashville.
• John Phillipps is collecting information about the use of mediation
with worker’s compensation cases. If you have any experience with
these mediators, contact him at (615) 756-6600.
• Judge Walter Kurtz, Davidson County Circuit Judge, has proposed
a local rule that all contested worker’s compensation cases must
be referred for mediation before they can be set for trial.
• In Second Circuit Court, Davidson County, I have a court-attached
mediator/law clerk. Lawyers now speak of mediation as a proposed
method of resolving custody disputes, if at least to please the
judge. I refer some cases to outside mediators who have received
at least 40 hours of training. Pre-trial conferences often with
parties are essentially mediation, particularly in family law
cases. Judges in Davidson County are swapping cases for settlement
conferences.
• Judge Dewey Whittendon and John Chisolm in Bolivar and Covington
have a court order that refers all child custody disputes to outside
mediation through the mental health center.
• Newton Allen in Memphis is putting together a program for Early
Neutral Evaluation. If you have had some experience in this area,
good or bad, please contact him at (901) 523- 8211.
• Our leader, Shelby Grubbs, is everywhere publicizing mediation.
• Second Circuit, Davidson County, Williamson and Sumner Counties
began a court-encouraged or -mandated program called “Families
First — Children Cope with Divorce” for divorcing parents. This
program will be a precursor of court-encouraged or -mandated mediation
for custody disputes.
Marietta Shipley is Circuit Court Judge for the 20th Judicial
District in Nashville and chair of the TBA ADR Committee.
Shelby R. Grubbs is the chair of the Tennessee Supreme Court’s
Commission on ADR and was the first chair of the TBA-ADR Committee
when it was formed in 1990. He is also chairing the Advisory Group
for the Reduction of Cost and Delay in Litigation of the U.S.
District Court for the Eastern District of Tennessee. A native
of Chattanooga, where he runs a business and corporate litigation
practice, Shelby is past president of the Chattanooga Bar Association.
How did you first get involved with ADR?
When I first started my firm in 1981 I thought things would be
slow for a while so I started to do arbitrations for the American
Arbitration Association. A couple of years later I was asked to
write the chapter on ADR for the ABA’s corporate litigator’s book.
Doing the research, going to seminars, etc., for that book really
got me interested in the potential of ADR. Then I went to the
Harvard Law School week-long Negotiation Seminar and, later, their
Advanced Negotiation Seminar. By now it’s becoming an ever-increasing
part of my practice, both as an attorney representing clients,
and as a third party neutral brought in by others.
What types of cases do you think are best suited for ADR?
There are two major types of cases that benefit the most from
ADR techniques. The first type are cases with complex issues not
well suited for trial. The second type are cases involving parties
who wish to have, or are required to have, a continuing relationship
after their dispute is resolved.
How would you answer the argument that a good plaintiff’s lawyer
can always get more from a jury?
This is simply untrue. I would match my trial record with anyone’s.
I’m not a refugee from the trial system. I think it’s the best
system available and if, after considering everything, a lawyer
thinks a trial is best for his client then he should try the case.
However, you must evaluate all the factors before deciding to
abandon ADR, including the time-cost of money, greater costs of
litigation and uncertainty of result.
How do you sell your clients on using ADR?
The advantages are the same for either the plaintiff or defendant.
Time and money savings are potentially very great over the cost
of litigation. Given the potential cost of litigation, the cost
of using ADR is miniscule. From among the many types of ADR tools,
the parties can choose the one most comfortable for their clients.
In fact, negotiating the type of ADR approach is an excellent
way for the attorneys to open up good lines of communication.
Everyone usually wants to play hardball and litigate at the drop
of a hat, but generally as expenses and frustration mount they
become more receptive to trying ADR.
This basically holds true for personal injury cases too. Litigation
transaction costs are high for both parties and injured parties
can benefit from a quicker end to the dispute. In fact, some insurance
adjusters are now being evaluated on how frequently they make
use of ADR.
Alternative Dispute Resolution, or ADR, refers to a broad range
of mechanisms and processes designed to assist parties in resolving
differences. These alternative mechanisms are not intended to
supplant court adjudication, but rather to supplement it.
ADR provides an opportunity to resolve conflicts creatively and
effectively, and to find the process that best handles a particular
dispute. It is useful for resolving many disputes that never get
to court, as well as providing a means of settling 90 to 95 percent
of the cases that are filed in court.
Types of ADR
Arbitration typically occurs in two distinct forms: (1) a private,
voluntary process where a neutral third party decision-maker,
usually with specialized subject expertise, is selected by the
disputants and renders a decision that is binding; or (2) a compulsory,
non-binding process (often called court-annexed arbitration) which
must be resorted to in some jurisdictions prior to going to court.
Each party has the opportunity to present proof and arguments
at the arbitration hearing. The hearing customarily is less formal
procedurally than court adjudication. The award may be supported
by a reasoned opinion.
In court-annexed arbitration, if the parties accept the award
as a judgment, it is entered after the specified length of time
to appeal (e.g., 30 days) has passed and the litigation is terminated.
If one of the parties rejects the award and demands a trial de
novo, nominal sanctions may be imposed on the requesting party
(e.g., cost of the already incurred arbitration fees). In some
jurisdictions, greater financial disincentives (e.g. opponent’s
trial costs, attorneys’ fees, experts’ fees) are imposed against
parties demanding a trial de novo if they do not improve upon
their position at trial, usually by a pre-determined percentage
(e.g. 10 percent), from the amount awarded in the arbitration
hearing.
Mediation is usually a private, voluntary, informal process in
which a party-selected neutral assists disputants to reach a mutually
acceptable agreement. In some jurisdictions (e.g., child custody
disputes in California) parties are required to attempt mediation
before they can go to court. During the mediation there is a wide
opportunity to present evidence and arguments and to explore the
interests of the parties. The mediator is not empowered to render
a decision.
There are three basic types of mediation:
• Rights-based mediation is most familiar to the trial lawyer.
The lawyer may be involved either as the non-partisan neutral
or as a partisan representative. The goal is to settle the dispute
with attention to the identified legal rights of the parties.
• Interest-based mediation is more freewheeling with less attention
given to the individual rights of each party, but with a focus
on the interest or compelling issue of the dispute.
• Therapeutic mediation focuses more on the problem-solving skills
of the parties involved. The mediator may emphasize the emotional
dimensions of the dispute. Often, the parties discuss ways of
handling similar conflicts in the future.
Within each of these types, a variety of styles of practice exists.
For example, some mediators prefer to meet with parties in separate
sessions or “caucuses.” This is sometimes referred to as “shuttle
mediation.”
A mediator’s style depends upon the nature of the conflict, its
setting, the experience and resources of the disputants, and the
background and training of the mediator.
Negotiation is a voluntary, usually informal, unstructured process
used by disputants to reach a mutually acceptable agreement. At
the option of the participants the process may be kept strictly
private. There is no third party facilitator; disputants may or
may not appoint individuals such as attorneys to represent them
in the negotiations. No limits are placed on the presentation
of evidence, arguments or interests. In that respect, negotiation
is similar to mediation.
The foregoing types of ADR are often blended to produce a variety
of hybrid processes. Some of the better known hybrid processes
are described below:
rivate judging involves the referral of a case by the judge or
by agreement of the parties to a party-selected neutral decisionmaker
who, under statutory authority, makes a decision which is entered
as binding in the trial court. The proceeding is usually governed
by statutory procedure and is flexible with respect to time, place
and process. Parties present their proofs and arguments to the
decision-maker, and a judgment is reached which may be appealed
through the regular appeals process.
Neutral fact-finding may be either voluntary or involuntary under
Rule 706 of the Federal Rules of Evidence. It is an informal process
whereby a neutral third party selected by the disputants or the
court investigates the question in issue and submits a report
or testifies in court. The outcome is nonbinding but the results
may be admissible in court. This process is useful in resolving
complex scientific, technical, sociological, business or economic
issues (e.g., patent infringement, securities cases, environmental
disputes, utility rate-making cases) in which the presentation
of proof on issues is extremely difficult, expensive and time-consuming.
These disputes differ from other types of litigation because they
require empirical investigation and analysis outside the range
of most people’s experience. Using a neutral expert will promote
a fast and fair settlement without the strategic posturing that
sometimes characterizes the litigation process.
An Ombudsman is a third party selected by an institution (such
as a university, hospital, or governmental agency) to investigate
complaints or grievances by its constituents, clients or employees.
It is a voluntary, private, and informal process. The report issued
is usually nonbinding.
Mini-trial is a private, consensual proceeding where counsel for
each party to a dispute makes an abbreviated presentation of his
or her best case before the top official with settlement authority
for each side and usually, also, a neutral third party advisor.
At the conclusion of this exchange (which usually lasts a day
or two) the principals attempt to settle the underlying dispute.
If they are unable to do so, the advisor renders a nonbinding
opinion regarding the probable litigated resolution of specific
legal, factual and evidentiary issues as well as the probable
overall court outcome of the dispute. Armed with this additional
data, the disputants enter into further confidential settlement
negotiations in an attempt to reach a mutually acceptable agreement.
Summary jury trial is the jury equivalent of a mini-trial. It
takes place in a courtroom with a presiding judge or magistrate
and a mock six-member jury impaneled by the court from the regular
list. Counsel for each party makes his or her best expedited presentation.
Presentations are limited to evidence admissible at trial. The
jury’s advisory verdict gives the parties a reliable basis upon
which to build a mutually acceptable settlement. After the summary
jury trial (immediately following the procedure or within several
weeks), the presiding judicial officer will meet with the parties
and counsel to encourage settlement.
Moderated settlement conference (MSC) is a forum for case evaluation
and structured settlement negotiations between litigants and their
attorneys. It can be initiated by counsel or by the court on its
own motion to develop and present issues essential to a fair and
unbiased evaluation of the case. Counsel present their best cases
before a panel of impartial third parties, usually lawyers, who
evaluate the case and render an advisory nonbinding opinion for
use by the parties in settlement negotiations.
Although the formal rules of evidence applicable to civil cases
govern conduct in the MSC, the panel moderator may relax the rules
as appropriate. Statements and exhibits used in the conference
are considered part of the compromise and settlement discussions
and are inadmissible at any later court proceedings between the
same parties. Generally, the only information requested by the
court from the panel is whether the parties reached a settlement
agreement.
What Role is There for Lawyers in ADR?
awyers have a significant and professional role in ADR proceedings.
Their role is often determined by the nature of the dispute. For
example, in some neighborhood disputes lawyers may not be needed.
In more complex cases, as in adjudication, a lawyer will act as
a legal advisor to the disputants or as the dispute resolver.
Lawyers may also have a role as advisors to the neutral dispute-resolver.
There are three phases in which a lawyer/advisor can participate:
in the pre-ADR referral process, during the ongoing ADR process,
and in the review process after the parties have reached a tentative
agreement.
In the preliminary stages, a lawyer who is well-versed with various
ADR alternatives can help the parties identify the most effective
process for their particular dispute.
In the court of the ADR proceeding, a lawyer can often participate
as an advocate. In an arbitration hearing, a mini-trial, a summary
jury trial, or private judging, counsel for each party uses his
or her professional expertise and represents his or her client
during the process by presenting the arguments and evidence. Likewise,
a lawyer can be an advocate for a client involved in mediation.
Parties to mediation are encouraged to seek separate and independent
counsel; however, the lawyer usually will not attend the mediation
sessions with the client. In this case, the lawyer performs the
role of legal advisor to the client.
During the review phase following a mediation, a reviewing attorney
may fill one or more of the following roles: educator, drafter
of the agreement, investigator and drafter, and/or reviewer of
the drafted agreement.
awyers can also take the role of neutral dispute-resolvers. Lawyers
traditionally have often served as arbitrators. They can also
serve as mini-trial presiders or as mediators. In that event,
the neutral lawyer must not act as an advocate for either party,
but he or she can offer impartial legal information and can draft
the proposed agreement. Disputants, however, should usually seek
legal advice from independent counsel.
[Source: Alternative Dispute Resolution: An ADR Primer. American
Bar Association, 1989.]
Chris Marshburn is an attorney in Memphis, Tennessee.
A popular process of Alternative Dispute Resolution is mediation,
especially where an ongoing relationship between the disputants
is necessary after the dispute is resolved. Mediation is well
suited for divorcing parties who want to draft the terms of a
marital dissolution agreement (MDA), proceed only on the grounds
of irreconcilable differences and thus avoid an emotionally and
financially wrenching contested divorce. By making their own decisions
about their children, support, and property division, the parties
will “own” those decisions. Ninety-five percent of mediated MDAs
are complied with, according to Academy of Family Mediators surveys.
Here is an example of how mediation works:
John was leaving Jane for Susie, his secretary, and he was willing
to pay for it. He changed jobs; vacated a half million dollar
house and would pay generous support including alimony — much
more than the guideline’s amount for child support — and college
for the kids.
Still, Jane wanted to deny visitation. Her rationale was, “He’s
destroyed our family. Why should he get to enjoy it now?”
Ultimately, the parties mediated child support by actually examining
every line item of their budgets together, ascertaining the validity
of each amount allocated. Jane and the children were to remain
in the house until she remarried, then it was to be sold with
Jane getting a portion of the proceeds. Some alimony was contingent
on death only or until sometime beyond the 18th birthday of the
youngest daughter — thuse allowing John to send more money at
66 cents on the dollar rather than 100 cents on the dollar. Some
alimony ceased upon remarriage. (Their mediator’s standard practice
is to take the parties to a financial planner to construct the
support system in conformity with good tax planning.)
But Jane still needed convincing that, despite his behavior toward
her, (1) John was a loving father, (2) the kids needed to be with
him, (3) fathers that don’t get to feel like fathers resist paying
on time, and (4) she needed a break from the kids and he was the
best and cheapest babysitter in town.
So, once convinced and advised by her attorney that she was getting
a sweetheart deal, what issue required the most effort from the
mediator? Susie, of course. “All right, he could see the kids,
but never, never, never with her around!” With that restriction,
all bets were off the table. John decided that he would take his
chances in court.
Their attorneys advised them that in their particular court she
could probably win the restriction she wanted, but would lose
the deal offered. What to do? The mediator suggested that the
parties go back to their marital therapist to ascertain the impact
of Susie on the kids. John and Jane decided that they would only
return to the therapist if the mediator went along, because previous
therapy sessions ended in screaming matches — behavior not tolerated
by the mediator. (“A hundred dollars an hour isn’t enough for
me to listen to this abuse and is a poor use of my time and your
money.”)
The therapist was wonderful. She noted that the children would
observe that mother and father had differing views of the appropriateness
of pre-marital relationships, and other moral or religious decisions,
and the children would eventually reach their own conclusions
about it when they were older. She suggested that in this time
of great change, it would be helpful if John waited about five
or six months before introducing Susie into the picture. The children
needed time to learn that their father wasn’t divorcing them.
Most importantly, neither Susie, nor anything else, would be as
harmful to the children as a 24-month contested divorce. (Judith
Wallerstein, the noted child phsychologist, reports that children
of contesting divorce disputants often wish they were dead. “If
I weren’t here they wouldn’t be fighting.”)
A detailed, 22-page Memorandum of Understanding, which is not
a contract, was drafted by the mediator and listed all the decisions
made by the parties. Its purpose was to help the attorneys in
the drafting of the seven-page marital dissolution agreement.
The memo included all carpool arrangements, who would pay auto
insurance when the kids got old enough to drive, the rationale
for each decision made, an agreement to mediate future disputes
prior to resorting to litigation, and when and how Susie would
enter the scene.
This couple came back to mediation five times post decree. John
and Susie married, so step-parenting issues arose. Through mediation
it was decided that Jane’s new husband could move into John’s
house until it was sold. (After all, considerable alimony would
cease if Jane went ahead and married.) Later, Jane bought the
house. At each session, the mediator asked how parenting was going.
And each time the answer was “no problems, we do that well.”
