Dallas Bar Association
HEADNOTES
Focus ADR/Collaborative Law
May 2018 Volume 43 Number 5
Focus
DBA WE LEAD
ADR/Collaborative Law
Tips on Arbitration Advocacy from an Arbitrator BY MARK A. SHANK
On April 12 Session 2 of the DBA WE LEAD program was held at Mary Kay headquarters. In addition to a presentation by Monica Blacker of BAX Advisors, participants were treated to a corporate counsel panel. The panel, shown with DBA President Michael K. Hurst (left) consisted of (left to right) Stephanie Zapata Moore, Vistra Energy; Lauren Leahy, Pizza Hut U.S.; Tracey Preston, Neiman Marcus; Dena DeNooyer Stroh, NTTA, moderator; Julia Simon, Mary Kay; and Shonn Brown, program chair.
Recently, in preparation for a presentation on arbitration advocacy I interviewed several arbitrators about what advocates do right and wrong when appearing before them. Arbitrators uniformly comment that advocates often approach arbitration in the same way they approach litigation. Doing so diminishes their effectiveness and often results in wasted energy. Most of the interviewees were eager to express their views and recommendations about these issues, which I have summarized below:
Know the Rules
Focus
ADR/Collaborative Law
Priming and Reframing Mediations BY WILLIAM E. SPARKS
In a world of constant conflict, mediators are often called upon to resolve disputes. In doing so, mediators strive for neutrality and should exert no influence concerning the outcome of any dispute in which they mediate. But does that really happen? Are mediators honestly neutral or do they inadvertently affect the outcome of their mediations by priming and reframing the issues that alter the outcome of a dispute? Mediators have unique problem solving theories and styles which commonly fall into three groups: facilitative, evaluative, and transformative. Each discipline employs a process through which mediators apply skills associated with their school of knowledge as a neutral. For example, facilitative mediators employ a structured process to find a resolution. They ask questions, validate and normalize points of view, search for interests underneath positions, and assist parties to find and analyze options for resolution. They neither make recommendations nor give advice. Instead, the mediator is in charge of the process while the parties control the outcome. On the other hand, evaluative mediators employ a process similar to a settlement conference. They assist the parties in reaching a resolution by pointing out strengths and weaknesses in the dispute. They are concerned with the legal rights of the parties instead of a party’s needs or interests. By
contrast, transformative mediators employ a process by evaluating the interests and needs of the parties and engage in transforming party positions throughout the mediation process. Each of these three mediation styles have a common denominator in that they each rely upon humans as the interactive key to facilitate each style during a mediation. Therefore, underneath it all, mediators are not really neutral. Humans are fallible and each mediator comes to the dispute with cognitive biases, emotions, prejudices and beliefs that may or may not be aligned with the parties. Mediators are charged to act as if they can disregard every situation, issue and emotion yet employ complete neutrality. As different as each mediator is, each engages in learned techniques of psychology and communication, and each either consciously or subconsciously engages in the techniques of priming and reframing during the course of mediation. Priming is employed to refocus attitudes and behavior. Priming occurs when a person is exposed subconsciously to a stimulus that influences perceptions or interpretations of a person or event. Humans can be conditioned to a response or stimuli to behave or act in a certain way. Thus, words or stimuli can be used to precondition a person’s mind through the repetitive use of words or visualizations during mediation. Subliminal messages can trigger the subcontinued on page 16
Each arbitration association (such as AAA and JAMS) has a specific set of rules. These rules are often dramatically different than the Rules of Civil Procedure. Arbitrators believe that advocates who are not fully conversant with the applicable rules miss opportunities.
Prepare for the Management Conference
Typically, the arbitration process will commence with a management conference, which shapes the remainder of the case. Arbitrators comment that parties often are not fully prepared for this conference and recommend that you come to the conference with clear views as to the length of the case, what discovery will be needed, what you expect in terms of motion practice, and any other issues that should be raised. This is the time to polish up your elevator speech about the case and deliver it to the arbitrator who will decide your case. Good first impressions at the management conference help build the credibility of you as the advocate and of your case.
Discovery
Arbitrators recommend that the parties understand and are clear about what discovery they need over the course of the case and make certain that the sched-
uling order allows it. Arbitrators have broad discretion in limiting discovery, so it is imperative that you explain to the arbitrator why you need specific discovery. During the discovery process, advocates should use the arbitrator to short circuit any disputes that may occur since arbitrators are typically more accessible than judges or magistrates. Arbitrators also comment that lawyers often fail to read and follow the scheduling order once it is entered.
Motions
Motion practice is typically not favored and is much more informal in arbitration than in court practice. Arbitrators recommend that you limit motion practice and make certain that you have a clear objective prior to filing.
Pre-Hearing
Arbitrators emphasize that the final hearing is the same as a trial. Therefore, prehearing preparation is crucial. Advocates need to prepare their witnesses, organize exhibits, have a proof plan and know the documents. Since arbitrators are experienced lawyers, they are going to be interested in the elements of your claim or defense and what proof you have to support each element.
Hearing Tips
Because of the informality of the hearing, use of visual and learning aids are favored. Arbitrators appreciate you providing a witness list, a description of a witness’s role in the case, a short summary of his or her testimony, and even a picture of each witness. Chronologies, summaries, and tables are all favored by arbitrators. Arbitrators also favor what they call a “convenience notebook” where you provide the arbitrators a limited notebook containing only the documents that witness will be testifying about.
Professionalism is Persuasive
Arbitrators do not like bickering
Inside 10 Trends in the Use of Online Dispute Resolution 14 Mental Health Awareness Month 18 Negotiation Tips and Techniques at Mediation 23 The Best Darn Bar Association in the Country
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