The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

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The Florida Litigators’ Dispute Resolution Toolbox: Creative ADR Applications are proud to cosponsor today’s Webinar: 1

description

Upchurch Watson White and Max Partner Larry Watson reviewed a wide variety of creative dispute resolution processes available to Florida litigators -- custom resolution tools to fit any litigation problem -- during a lunchtime Webinar on Tuesday, Feb. 18, 2014. Breaking down dispute resolution processes into an understandable and logical continuum of events and characteristics, the presentation covered variations of adjudication proceedings, reconciliation proceedings and blends of the two. Dispute review boards, early neutral evaluation, non-binding arbitration, voluntary trial resolution as well as variations of arbitration and mediation can be custom fitted to replace, supplement or enhance litigation. This program, which was free of charge, covered the full ADR menu, and attendees earned 1.0 general CLE credit, certified by The Florida Bar. those who still want to earn the credit can download the full presentation at http://www.uww-adr.com/webinar/downloadable-webinar/the-florida-litigators-dispute-resolution-toolbox-creative-adr-applications

Transcript of The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

Page 1: The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

The Florida Litigators’

Dispute Resolution Toolbox:

Creative ADR Applications

are proud to cosponsor today’s Webinar:

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Page 2: The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

Our moderator, Sandy Upchurch

Mediation Counsel

Upchurch Watson White & Max

supchurch@ uww-adr.com

uww-adr.com

Our presenter, Lawrence M. Watson

Principal/Founder Upchurch Watson White & Max

lwatson@ uww-adr.com

uww-adr.com

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 2

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Creative ADR Applications

The Florida Litigators’ Dispute Resolution

Toolbox

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 3

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Agenda - DR Toolbox

Overview of Dispute Resolution Processes

The Continuum of Dispute Resolution Systems

Toolbox Options

– Med/Arb and Arb/Med

– Early Neutral Evaluation

– Non-binding Arbitration (Fla. Stat. 44.103)

– Binding Arb./Voluntary Trial Resolution (Fla.Stat. 44.104)

– Mediated Case Management

© Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 4

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Dispute Resolution Processes Overview

Reconciliation Systems

Consensual

Party Controlled

Mutual Accommodation of Interests & Concerns

Problem Solving Exercise

Outcome Is Agreement

Adjudication Systems

Mandated

3rd Party Controlled

Prevail in Positional Debate

Fault Finding Exercise

Outcome Is Judgment

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© Lawrence M. Watson Upchurch Watson White & Max Mediation Group

Dispute Resolution Continuum

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Arb-Med & Med-Arb

ADR Toolbox Options

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group

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ADR Toolbox Options: Med-Arb & Arb-Med

Med-Arb

– When to decide to use the process?

– What do you want the decision to be?

Arb-Med

– “Cigar Box” arbitration

– Decision should be an “award”

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 8

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EARLY NEUTRAL EVALUATION

ADR Toolbox Options

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 9

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ADR Toolbox Options: Early Neutral Evaluation

Pre-Trial procedure

Case presentation to “Neutral Evaluator”

Obtain non-binding neutral evaluation of claim/defenses – leading to . . .

Potential case management benefits

Potential facilitated settlement process

Fed. District Court, N. Dist. California © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 10

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ADR Toolbox Options: Early Neutral Evaluation

ENE Operation

Select evaluator; interviews, submissions

Informal hearing

Evaluation presented

Parties accept or reject evaluation

Case management or settlement negotiations

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 11

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ADR Toolbox Options: Early Neutral Evaluation

ENE Ground Rules

Confidential

All procedural rights preserved

Case remains on trial schedule

Timing for ENE – (early rather than late)

90 days after case management conference

60-90 days after court referral © Lawrence M. Watson,

Upchurch Watson White & Max Mediation Group 12

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ADR Toolbox Options: Early Neutral Evaluation

Conclusion

Informed, neutral, adjudicatory input early in process

Credibility of evaluator critical

See www.adr.cand.uscourts.gov

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 13

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NON-BINDING ARBITRATION

ADR Toolbox Options

Fla. Stat. 44.103

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 14

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ADR Toolbox Options: Non-Binding Arbitration

Agreed by parties or ordered by Court (§44.103)

Parties can control process – do control outcome

When Parties agree on NBA they can control;

– Procedure; choice of arbitrator; timing; hearing formality

When court orders NBA:

– FRCP apply; court picks arbitrator; 30 days; hearing formality

– Award “final” unless motion for trial de novo filed

– 25% Rule or pay legal fees and costs

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 15

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ADR Toolbox Options: Non-Binding Arbitration

Overall

Non-binding arbitration allows “peek over the fence” at possible outcome of adjudication

Evaluation tool © Lawrence M. Watson,

Upchurch Watson White & Max Mediation Group 16

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VOLUNTARY TRIAL RESOLUTION VOLUNTARY BINDING ARBITRATION

ADR Toolbox Options

Fla. Stat. 44.104

17 © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group

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ADR Toolbox Options: Binding Arbitration - VTR

Voluntary Binding Arbitration

– “Certified” Arbitrator (§44.106)

– Fla. R.C.P. 1.830 – hearing procedures

– Appeal to Circuit Court (limited basis)

Voluntary Trial Resolution

– 5 year Fla. Bar attorney

– Normal trial procedures

– Appeal to DCA (no factual issues)

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 18

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MEDIATED CASE MANAGEMENT

ADR Toolbox Options

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 19

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ADR Toolbox Options: Mediated Case Management

Complex, multi-issue, multi-party litigation

Cost-effective, efficient case management

Set aside “process debates”

Focus on substantive issues

Gather information necessary

– Enable settlement early, not late

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 20

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ADR Toolbox Options: Mediated Case Management

Dual Track Program

Adjudication and reconciliation programs run concurrently.

Prioritize litigation (adjudication) tasks, to get data for settlement (reconciliation) first.

– Mediate the conduct of the lawsuit

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 21

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ADR Toolbox Options: Mediated Case Management

Overview Early in case - counsel and parties select and

meet with mediator.

Mediator/Parties negotiate overall accords on how the lawsuit will be run.

Objective is to establish a “charter” that can be converted to a stipulated Case Management Order.

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ADR Toolbox Options: Mediated Case Management

Charter

Conduct of litigation controlled by facilitated agreement

Periodic case management meetings

Chaired by Mediator

– Facilitates /Records CM agreements

– Mediates partial/final settlements

– Reports to Court

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 23

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ADR Toolbox Options: Mediated Case Management

Charter (cont.)

Confidentiality -

– All communications under “umbrella of mediation confidentiality”, except

– Commitments regarding MCM proceedings. Discovery taken under oath.

Termination - opt out at any time; notice to Court and other parties.

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 24

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ADR Toolbox Options: Mediated Case Management

Charter (cont.)

Case Management Agreements – become stipulated case management orders – Deviations after agreement only with permission of

parties or Court

Court enforces Case Management Agreements

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 25

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ADR Toolbox Options: Mediated Case Management

Operation

Initial Mediation session

Focus on Issue refinement – what are we really arguing about?

Develop “Working Statement of Key Issues” – Substantive Factual Issues

– Substantive Legal Issues © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 26

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ADR Toolbox Options: Mediated Case Management

Operation (cont.) Prioritize the key issues - FACT and LAW

What do we really need to know to settle key issues?

– Important things to know - Key issues of fact

– Important things to know - Key issues of law

Devise plan to develop necessary data on key issues

Cooperative, focused, orderly, cost effective procedures

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 27

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Obtain data on key issues of fact; – Define and schedule mutually agreeable joint

discovery or investigative program.

Focus on getting only the factual information required to settle first

Come back later for the rest © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 28

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Fact issue program choices – Voluntary document exchange.

– “Rifle-shot” Rule 30(b)(6) depositions

– Cooperative audits, cost validation

– Joint site visits, testing, inspections

– Joint expert workshops.

– Joint informal witness interviews. © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 29

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Obtain data on Key issue of law

– Define and schedule a mutually agreeable joint adjudicative program

Focus on getting only legal input required to settle – first

Establish critical “rules of the road” for adjudication process

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 30

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Legal issue – program choices – Exchange briefs and mediate

– Private judge hearing (binding or nonbinding)

– Coordinated hearing with Special Master

– Coordinated hearing with Court

Use the mediator to orchestrate program choices © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 31

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Use Mediator as intermediary between court and parties – an envoy to court – Preserve confidentiality

– Scripted message in neutral terms

– Focus on coordinating case resolution efforts

– Insure meaningful judicial input; data needed

– Create three-way team © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 32

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ADR Toolbox Options: Mediated Case Management

Operation (cont.)

Reconciliation Track – Set target date for global mediation

Universal goal “End Date’

– Set periodic “mini-mediations” with specific disputes and specific parties “Balcony, Windows & Doors Day”

Final or Contingent

Chip away at overall dispute © Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 33

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ADR Toolbox Options: Mediated Case Management

Conclusion

Everything done in MCM needs to be done to prepare for trial.

MCM prioritizes trial preparation activities to focus first on data needed to settle.

Gives settlement a chance to happen early.

WIN-WIN process

© Lawrence M. Watson Upchurch Watson White & Max Mediation Group 34

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ADR Toolbox Options: Mediated Case Management

Conclusion

Requires professionalism from bar; flexibility from bench

Cooperative not adversarial mindset

Cost effective, elegant, minimal waste

Clients love the process – in the loop, de-mystifies the legal process

MEDIATED CASE MANAGEMENT

© Lawrence M. Watson

Upchurch Watson White & Max Mediation Group 35

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“Creative ADR Applications”

Florida Bar Course # 1400502N

CLE Credits General: 1.0

Thank You For Joining Us.

Upchurch Watson White & Max Mediation Group

Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm Beach

Please email [email protected] with questions about course number, Webinar recording, etc.

Please contact Larry at lwatson@uww-adr with questions or comments regarding content.

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