Hot Topics in ADR
Judge Richard Klein and Charles Forer, Co-Chairs of the ADR Committee of the State Civil Litigation Section, moderated “Tips from the Top: Hot Topics in ADR” [Alternative Dispute Resolution] on November 17, 2022. Attorneys Denise Mandi, Co-Chair of the Section; Ronald Kovler; and Kevin Harden, Jr. served as panelists.
“Arbitration is the process where one or more decision makers decides a case … 99% of the time, a binding decision. If the parties want, it can be a non-binding decision. On the other hand, mediation is a process by which one mediator facilitates and helps the parties themselves reach a mutually acceptable settlement.” (Forer)
When determining whether ADR is an option, “the first thing I always do is think about the pros and cons of a jury trial and then compare them to what is a more predictable process … It is important to look at every case and ask ‘what am I looking for in the outcome of this case and what is more or less likely to happen in that forum?’” (Harden)
As for choosing arbitration over mediation when ADR is the best forum, “I try to get from Point A to Point B as quickly and predictably as possible. Typically, if the other side wants to mediate the case, I’m usually okay with that …. From my perspective, it’s all about cost, predictability and finality, and, also, date certain at the end of the day.” (Kovler)
Judge Klein, asked the panel: “Everybody says ‘I want an arbitrator that’s going to be fair and down the middle.’ I think you want an arbitrator that’s going to be somewhat biased in your favor,” adding “not my quote!” (Judge Klein) Ms. Mandi respectfully disagreed. “I want the matter to resolve in a way that we can walk away from it feeling … that our arguments were respectfully listened to and thoughtfully considered; and, at the end of the day, that this is what the arbitrator felt was the right decision based upon the law and the facts.” (Mandi)
When preparing for an arbitration, “best practice is to try to get an agreement on every issue you can and memorialize that in writing – make it simple. If there are any unresolved issues, put those in writing as well.” (Kovler) “Arbitrators will frequently reference what rules they typically apply in advance … follow up on it immediately … don’t end up fighting about the rules right before you’re about to walk into the arbitration.” (Harden)
With mediation, “I think it’s human nature to see all the strengths of your case and try to downplay the negatives. I think my job [as a mediator] is to talk about all the bad things in your case …. How do you feel about a mediator tearing into your case?” (Judge Klein)
All panelists agreed that specific critiques should be shared privately, adding: “I like it when a mediator says bad things about my case so my client can hear what that mediator has to say … especially if what the mediator is saying is valid.” (Kovler)
“I know a mediator who tends to ruffle your feathers, privately … sometimes you get a little blistered, but it’s effective.” (Mandi)
“The best mediators are the people who can tear your case apart or tear the other side’s case apart based on information you provided to them without letting the cat out of the bag … someone that tears apart your case is also someone that has the ability and skill set to explain to the other side the things that will happen to their case should this matter go before a jury.” (Harden)
When representing clients in mediation, “rule #1 is prepare.” (Judge Klein)
Reprinted with permission from the March 2023 edition of the Philadelphia Bar Reporter © 2023 Philadelphia Bar Association. All rights reserved. Further duplication without permission is prohibited (contact (215) 238-6300 or reporter@philabar.org).
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