The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

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Information about The Florida Litigator's Dispute Resolution Toolbox with Larry Watson
Education

Published on March 6, 2014

Author: UWWM

Source: slideshare.net

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

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

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

The Florida Litigators’ Dispute Resolution Toolbox Creative ADR Applications © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 3

Agenda - DR Toolbox Overview of Dispute Resolution Processes  The Continuum of Dispute Resolution Systems  Toolbox Options  © Lawrence M. Watson Upchurch Watson White & Max Mediation Group – 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 4

Dispute Resolution Processes Overview Reconciliation Systems  Consensual  Party Controlled  Mutual Accommodation of Interests & Concerns  Problem Solving Exercise Adjudication Systems  Mandated  3rd Party Controlled  Prevail in Positional Debate  Fault Finding Exercise Outcome Is Agreement Outcome Is Judgment 5

Dispute Resolution Continuum 6 © Lawrence M. Watson Upchurch Watson White & Max Mediation Group

 ADR Toolbox Options Arb-Med & Med-Arb © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 7

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

ADR Toolbox Options EARLY NEUTRAL EVALUATION © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 9

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

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

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

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

ADR Toolbox Options NON-BINDING ARBITRATION  Fla. Stat. 44.103 © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 14

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

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

ADR Toolbox Options VOLUNTARY TRIAL RESOLUTION VOLUNTARY BINDING ARBITRATION  Fla. Stat. 44.104 © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 17

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

ADR Toolbox Options MEDIATED CASE MANAGEMENT © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 19

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

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

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. © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 22

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

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

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

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

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

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

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

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

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

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

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

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

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, demystifies the legal process   MEDIATED CASE MANAGEMENT © Lawrence M. Watson Upchurch Watson White & Max Mediation Group 35

“Creative ADR Applications” Florida Bar Course # 1400502N CLE Credits General: 1.0 Please email cklasne@uww-adr.com with questions about course number, Webinar recording, etc. Thank You For Joining Us. Please contact Larry at lwatson@uww-adr with questions or comments regarding content. Upchurch Watson White & Max Mediation Group Daytona Beach  Maitland/Orlando  Jacksonville  Miami  Fort Lauderdale/Plantation  West Palm Beach 36

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