Page 9 - November December CBA Report

Additional measures parties can implement include:
• Considering, from the outset, how to pursue a faster and less expensive process;
• Considering a mediator for issues that parties suspect will not become a problem, yet may later catch the parties off-guard;
• Seeking legal advice from a lawyer who is experienced with ADR, rather than the best litigator, as early as possible;
• Discussingwithcounselanyconflicts of interest, whether mediation is court-ordered or voluntary, dead- lines, experts, whether or not to give an opening statement, and more;12
• Preparing for an increasingly diverse workforce;13
• In challenging situations, hiring an experienced mediator to assist with strategy on resolving disputes pre-litigation.
A well-trained and highly experienced mediator can guide parties through every step of the ADR process. They can also work with you to develop appropriate pre-ADR measures.
Hawkins is chair of the ADR Center at Dinsmore.
A neutral for the American Arbitration Association (AAA) since 1992, Hawkins has been successful in mediating and arbitrating employment-related claims, commercial disputes, domestic relations, class-actions and more. He is Harvard and Pepperdine-trained on mediation and negotiation. An active mediator and arbitrator on the CBADR panel, Hawkins is also a past president of the Cincinnati Bar Association.
Prepared with assistance from summer associate Evan Yahng.
pact-of-pre-mediation-caucuses-on-efficient-and-effec- tive-mediations/?slreturn=20210614140434).
3 Flavia Pizzino, Think Before You Arbitrate – Practical Considerations to Make the Most of Arbitration, Clyde
& Co. (Jan. 18, 2021) (https://www.clydeco.com/en/ insights/2021/01/think-before-you-arbitrate-practi- cal-consideration). See also Michael Z. Green, Mediating Psychiatric Disability Accommodations for Workers in Violent Times, 50 Seton Hall l. Rev. 1351, 1388 (2020) (“a survey of both employers and employees indicated that both groups agreed that ‘litigation is unfair.’”).
4 Nina Meierding, Looking to the Future: Is There Still A Place For Proactive, Early Intervention Mediation in Our Changing Field?, Mediate.com.
5 Id.
6 Id.
7 See, e.g. John S. Kiernan, Reducing the Cost and Increasing the Efficiency of Resolving Commercial Disputes, 40 CaR- dozo l. Rev. 187, 205 (2018).
8 Hon. Richard J. Billik, Jr., The Benefits of Pre-Mediation and Post-Mediation Contact in Commercial Mediation,ADR Systems (Feb. 5, 2016) (https://www.adrsystems.com/ news/the-benefits-of-pre-mediation-and-post-media- tion-contact-in-commercial-mediation/).
9 Pizzino, supra note 4.
10 Michael Paiva, 8 Proactive Steps for Avoiding Litigation, Rodrigues Paiva, LLP (https://rplawyers.ca/8-proac- tive-steps-for-avoiding-litigation/).
11 ADR Times, A Predispute Arbitration Clause – Arbitration Agreement Explained (Mar. 17, 2021) (https://www. adrtimes.com/predispute-arbitration-clause/).
12 Reilly, supra note 2. 13 Worthy, supra note 1.
1
2
“Record-breaking caseloads (and amounts in contro- versy) have been seen across most of the arbitration institutions.” “The ICC reported 946 new arbitration cases in 2020, the highest since 2016.” Mica Nguyen Worthy, 2021 Trends in International Arbitration, Cranfill Sumner, LLP, (Apr. 23, 2021) (https://www.cshlaw.com/ resources/2021-trends-in-international-arbitration/).
“Today’s pandemic [has] interrupted the normal progression of most cases regarding when they will go on trial. As a result, mediation has assumed a more important role in the process of disposing of cases by settlement.” Thomas F. Reilly,The Impact of Pre-Media- tion Caucuses on Efficient and Effective Mediations,The Legal Intelligencer (Feb. 3, 2021, 10:38 AM) (https:// www.law.com/thelegalintelligencer/2021/02/03/the-im-
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