Proactive Dispute Resolution

Polsinelli PC. In California, Polsinelli LLP

PROACTIVE DISPUTE RESOLUTION STRATEGIES

Gene Commander, Esq.Ryan E. Warren, Esq.

Executive Leadership AcademyAssociated General Contractors of Colorado

February, 2015

real challenges. real answers. sm

Program Outline

1. ADR Models2. Three-legged Stool3. Mediation Models4. Administration Tips5. Mediator Selection Tips6. Procedural Tips7. Preparation Tips


When Faced With A Claim

1. Immediately develop objective summary of factual and legal issues at core ofdispute.

2. ID all critical records and information that parties can exchange or obtain fromother project participants to understand each other's key claims and defenses.

3. Establish reasonable negotiating goals and milestones.4. Identify/address foreseeable obstacles to reach the negotiating milestones.5. Determine sequence/schedule for reaching negotiating milestones and

resolution.6. At each step, engage resources as soon as possible to help with resolution -

opposing party's senior executives, your consultants, your attorneys, mediatorsand/or arbitrators.

7. Estimate costs for each negotiating milestone, then budget for those costs.8. Refine the negotiating strategy as the process evolves. Do this over and over.9. Listen carefully to and seriously consider recommendations from experienced,

well-informed neutrals (i.e., mediators) and keep open mind about theappropriate result, regardless of benefits that might be obtained by other partiesin the dispute. Lose emotion.


ADR Models

� Initial Negotiations (company execs v. attorneys)

� Mediation– Contractual Process– Nonbinding

� Arbitration– Contractual Process– Binding– Limited Appeal

� Litigation– Mechanic’s Lien Foreclosure– Declaratory Judgment

� Insurance Coverage Dispute


Don’t Lose Control and Money

+

+-CONTROL

COST

KNOWLEDGE

AttorneyInvolved

InvestigationCompleted

Arbitrator, Judge, Jury involved

Project Team Involved


Mediation Models – Creature of Contract

� Traditional– Facilitative– Evaluative

� Dispute Resolution Board� Mediation to Arbitration

– Potential Conflicts of Interest– Mediation/Last Offer Arbitration

� Benefits– Influence Over Outcome– Flexibility/Creativity– Informative– Cost-Effective– Confidentiality


Mediation Administration Tips –Creature of Contract

� Administrators– American Arbitration Association (AAA) - Nonprofit– Private – For Profit

� Denver – Judicial Arbitrator Group (JAG)� National – Judicial Arbitration and Mediation Services

(JAMS)� Individuals

� Locale � Judicial Stay� Cost Sharing – No Prevailing Party


Mediator Selection Tips

� Mediator Selection Process– AAA - Appointment– Private

� JAG - Varies� JAMS - Varies� Individuals - Selection



� Mediator Qualifications– AAA Mediation Panel Criteria

� 10 years senior level business or professional experience

�Handled at least 5 mediation cases� 24 hours of mediation skills training� Leadership, fairness and impartiality

recognized by peers�Standardized resumes at www.adr.org



� Mediator Background Check� Mediator Interview� Familiarity with Opposing Counsel or Party

– Pros�Confidence in Mediator�Persuasiveness of Mediator

– Cons�Negative Impact on Your Perceptions?


Procedural Tips

� Mediator Disclosures– AAA

� Reasonable Inquiry� Potential Conflicts� Presumptions of Bias� Timeliness� Financial Arrangements

– Private� JAG - None� JAMS – None� Individuals – Varies


Procedural Tips

� Preliminary Conference – have one!– Review Nature/Status of Dispute– Identify Interested Parties– Identify Insurance/Surety Interests

� Additional Named Insureds� Waiver of Subrogation� Reservation of Rights� Denial of Coverage

– Gain Familiarity with mediator– Influence mediator?


Procedural Tips

� Assess:– Status of Prior Settlement Negotiations– Need for Step Mediation

�Particularly Sensitive or Complex Issues/Personalities

–Stabilizers/Destabilizers�Attorneys�Parties’ Representatives� Insurance/Surety Representatives�Expert Witnesses

– Need for Statement of Claims


Procedural Tips

� Assess:– Need for Exchange of Records– Need for Confidential Settlement Statements– Need for Opening Statements

�Pros – Efficiency�Cons - Destabilizers

– Need for Joint Session– Need for Attendance

�Settlement Authority�Person(s) Most Knowledgeable


Preparation Tips

� Confirm Goals� Manage Expectations

– No Lines Drawn in the Sand– Willingness to Listen and Reconsider

Strengths/Weaknesses– Willingness to Compromise

� Interaction with Mediator – Do’s/Don’ts


Don’t Lose Control and Money

CONTROL

COSTKNOWLEDGE+

+TIME

AttorneyInvolved

InvestigationCompleted

Arbitrator, Judge, Jury involved

Project Team Involved

TIME


Contact Information

Polsinelli PCwww.polsinelli.com

1515 Wynkoop, Suite 600Denver, CO 80202

303.572.9300***

Gene Commander, [email protected]

***Ryan Warren, Esq.

[email protected]


About Polsinelli

Polsinelli, a national law firm ranked among the Am Law 100 with over 740attorneys located in 19 offices, deliberately seeks constant improvement in allthat we do. At its inception more than forty years ago, the firm established aculture of openness and entrepreneurship that still pervades today. As thefastest growing U.S. law firm for the past six years as ranked by The AmericanLawyer*, the firm’s growth has been fueled by the recruitment of like-mindedattorneys from top law firms across the country.

Polsinelli attorneys successfully build enduring client relationships by providingpractical legal counsel infused with business insight, and with a passion forassisting General Counsel and CEOs in achieving their objectives. The firmfocuses on healthcare, financial services, real estate, life sciences andtechnology, and energy and business litigation, and has depth of experience in100 service areas and 70 industries.

*The American Lawyer 2013 and 2014 reports


Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2015 Polsinelli PC. In California, Polsinelli LLP.Polsinelli is a registered mark of Polsinelli PC

Proactive Dispute Resolution

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