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MED-ARB BASEBALL STYLE
As a follow up to my last post on Med-Arb, I want to describe a new type of Med-Arb gaining popularity:  Med-Arb Baseball Style.  (Okay, I made up that name but it aptly describes this process.)
In Major League Baseball (MLB) if the team and player cannot agree on a contract price, the case goes to a neutral arbitrator and each side presents the Arbitrator with a dollar amount they believe represents a fair, final price and their justification for the price.  (Seems strange to speak of a price for a person, even if he is an awesome baseball player!)  The Arbitrator chooses one of the numbers presented and has no discretion to choose or do anything else.  Both sides have an incentive to be reasonable and give their best number.

Because this is St. Louis and we love our baseball, (and hockey too) this process has spilled over into contract disputes, particularly in the construction arena when disputes arise between general contractors and subs.  The contract (pre…

MED-ARB

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Med-Arb!  The worst nickname ever … or maybe the best nickname ever because it quickly informs the reader of the basic concept.  Never fear, I have completed numerous med-arbs (one of the few mediators who actually has) and there are good reasons to use med-arb.

So, what is this strange creature?  Med-Arb uses the same Alternative Dispute Resolution (ADR) professional to act as both mediator, and if mediation is unsuccessful, to serve as an arbitrator.  Clients love this concept, especially its efficiency.  Time is money and med-arb takes advantage of saved time in educating only one ADR professional about the dispute.  I remember in a mediation, watching the client’s surprise when he learned that his option, if mediation failed, was to start all over again with a new person acting as an arbitrator.  He commented on this terrible waste of time and wanted to hire me on the spot to arbitrate the case.  (The mediation was successful so we never went down this path)  
The big difference …

WHY WE LIKE THINGS TO REMAIN THE SAME

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Have you visited Disney World lately?  I just returned from a family vacation to the Magic Kingdom and I had such a strong sense of pleasure wandering from one favorite attraction to the next.  Flying with Peter Pan, floating on the boats of “It’s a Small World” as the song becomes stuck in my mind and walking down Main Street peeking in the windows.  I was not alone; there were plenty of other adults, unaccompanied by any kids, meandering from ride to ride.
Why?  Why do we love Disney World?  For me, it is the sameness.  I visited Disney as a kid, returned with my kids and over these 40+ years it has remained almost the same.  (Although I am quite unhappy “Mr. Toad’s Wild Ride” was replaced by “Winnie the Pooh.”) The expectations of guests are met; Cinderella’s castle was lit; the ghosts joined my car in the Haunted Mansion and Main Street was clean and freshly painted.  I relaxed, knowing what was expected of me, and felt safe with the status quo.  Don’t we usually feel comfortable w…

MEANINGFUL MEDIATIONS WITH PRO SE PARTIES

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Can you mediate with pro se parties … meaningfully?
40% of State Court litigants are pro se.  (“Pro se” means individuals or corporations who do not hire an attorney to represent them in the dispute)  20% of federal court litigants are pro se.  Staggeringly high numbers, right?
I mediate cases with pro se parties and, while some of my colleagues will not, I will.  Pro se parties want and need to participate in mediation; it is part of the larger system of justice in our country so I accept mediations directly with the parties.  However, my first comment to the pro se parties is that they should consider hiring a lawyer and I give them referrals to the State and local bar associations.  Sometimes, the party cannot afford or find a lawyer willing to take the case and yes, this usually means the case is weak.  No surprise--good cases are snapped up by good lawyers.  Other pro se parties think they do not need legal representation.  (Most times they are wrong.)
My second comment is to ex…

Mediation scores a goal at the world cup

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The US Women’s Soccer Team is fighting (and winning) two battles right now:  in France they are running and kicking a soccer ball with the most elite female players from around the world*; and in federal court in LA they are suing the US Soccer Federation for paying them less than the men’s team and providing inferior training and facilities.  Last Friday, both sides to the lawsuit announced they would use mediationto resolve the dispute.  (No mention was made of who the mediator will be, but yours truly is offering her mediator services!)  This is dramatic and so encouraging to all of us who practice mediation or just love women’s sports.  
Mediation is perfect for this unique situation.  It can move super-fast (I once mediated a construction case quickly to meet a construction/delivery schedule) or stay the lawsuit and its onerous discovery while the parties explore settlement.  In this case, discovery is an explosive issue.  The Soccer Federation had refused to turn over to the EEO…

EARLY NEUTRAL EVALUATIO

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What is this?  It has a nifty acronym (ENE) but what’s all the fuss? The attention is because the federal court in St. Louis is now using ENE in selected cases and, just as important, ENE really works. Here is the quick take:  ENE provides for a neutral to give all parties an evaluation at the beginning of an ADR session.  The evaluation can be in writing or verbal and it can be delivered jointly or separately in caucus.  Thereafter, the parties can chart their own course in reacting to the evaluation.
Most mediators make some sort of evaluation of the case and share some, or all, of that evaluation during the later stages of the mediation.  But here’s why ENE is different—the evaluation is formalized; no tiptoeing around or phrasing the evaluation in soft, equivocating language for fear of offending someone.  The neutral is tasked by the court to give an early, honest evaluation presented without apology. For the parties, it can be extremely useful to hear a neutral evaluation, espe…
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BREAKING BREAD TOGETHER
    The fascinating psychology behind mediation has given us another insight.  Sharing food from a common plate, sometimes called eating “family style” results in better and faster negotiations.  Researchers from University at Chicago and Cornell (The researchers were both women—no surprise, since women are so often responsible for meals.)  set up an experiment in which strangers were assigned to negotiate a hypothetical union-management dispute in which each round of negotiations resulted in another day of the strike costing both sides money.  This provided an incentive to conclude negotiations quickly.  
    However, before negotiations began the negotiators were invited to enjoy a snack of chips and salsa. Half of the negotiators were given one bowl of chips and salsa to share and half were given their own separate bowls.  Turns out that sharing a single bowl led the negotiators to reach a deal after only nine strike days as compared to 13 strike days for th…