The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

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

3

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
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




ADR Toolbox Options

Arb-Med & Med-Arb

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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”

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ADR Toolbox Options

EARLY NEUTRAL EVALUATION

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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

10





ENE Operation






Select evaluator; interviews, submissions
Informal hearing
Evaluation presented
Parties accept or reject evaluation
Case management or settlement negotiations

11





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,

12





Conclusion
 Informed, neutral, adjudicatory input early
in process
 Credibility of evaluator critical

 See www.adr.cand.uscourts.gov

13

ADR Toolbox Options

NON-BINDING ARBITRATION


Fla. Stat. 44.103

14





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

15




Non-Binding Arbitration

Overall

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

© Lawrence M. Watson,

16

ADR Toolbox Options

VOLUNTARY TRIAL RESOLUTION
VOLUNTARY BINDING ARBITRATION


Fla. Stat. 44.104

17


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)



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ADR Toolbox Options

MEDIATED CASE MANAGEMENT

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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

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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

21


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.


22


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


23


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.

24


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

25


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

26


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

27


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

28


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.


29


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



30


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

31


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


32


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

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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



34


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

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.

Daytona Beach  Maitland/Orlando  Jacksonville  Miami  Fort Lauderdale/Plantation  West Palm Beach
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The Florida Litigator's Dispute Resolution Toolbox with Larry Watson

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The Florida Litigator's Dispute Resolution Toolbox with Larry Watson