An Advocates View of ADR by akgame

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									AN ADVOCATE’S VIEW OF ADR




                          by
                 Sheila Block
INTRODUCTION

   Advocates have always used their skills in a variety of different arenas. These days the popularity of
mediation and arbitration means that litigators may go for long periods without darkening the doors of
the courthouse. Yet trial skills are important tools in many of the engagements of today’s litigators. This
paper looks at some of the opportunities to use litigation expertise outside the courtroom.

I. MEDIATION

Whether to Mediate

   Litigators will often say if you have a strong case, don’t mediate. You are better off in court where
you can get complete vindication. Lawyers think this way. A client’s point of view, on the other hand,
would lead you to mediation wherever possible. To be sure, in some cases, where public interest is
engaged or you need a precedent or one side or the other is intransigent for irrational reasons, mediation
may not be possible. But when you can assist the client to participate in and control the resolution of his
dispute, in almost all cases that will provide a better result and a better process than a full fledged court
battle. Clients increasingly have diminishing patience for the expense and inefficiency of a court contest.

Evaluative Mediation

    Before you pick a mediator, think about the kind of mediation you want. If you want an evaluative
mediation you may wish to choose a mediator with legal expertise (or some other kind of relevant
expertise). An evaluative mediation will be a non-binding process. It may well resemble a pre-trial. The
mediator must have stature with the parties so her evaluation will count. Often the stature may come
from a previous life as a prominent and well-respected jurist. In an evaluative mediation, the focus is on
the mediator who not only evaluates the positions of the parties but structures and promotes a solution. If
this is the kind of mediation you seek, you will gravitate toward senior lawyers or retired judges to assess
the merits. You will, however, need more than that in your mediator. You must have someone who can
persuade the parties of the reasons to settle and the basis on which settlement should be agreed.

    The role of the litigator in mediations of this nature is not that dissimilar from other advocacy
engagements, although the tone of the submissions and the structure of the process is often quite
different. As for the tone, the Honourable George Adams has covered this issue thoroughly in his recent
paper, “Advocacy in a Mediation”1. He urges “courteous if not friendly advocacy”, pointing out that the
common training and professionalism of the lawyers involved in the mediation may be all that the clients
have in common at the outset. The “mode of performance aimed at inflicting pain in order to provide
their clients with vicarious pleasure” is not the order of the day at a mediation.2 Thus lawyers must
behave in a more measured way and clients must be prepared for less than adversarial representation in a


1
    2000, 23 Advocates Quarterly, page 471
2
    ibid., at page 475
                                                     -2-


mediation. Yet the same rigorous analysis of the strengths and weaknesses of the client’s case is still
required from counsel. A thorough knowledge of the good facts and bad facts on both sides of the case
will allow the advocate to showcase important points to both the mediator and the other side and point
out weaknesses of the opponent’s position. Often the mediator will invite an opening statement from
each side and, just like at trial, counsel will attempt to marshal the persuasive facts to tell the client’s
story. All of this is done in order to close the gap between the parties. These representations must be
made in a respectful way and often in an empathetic way if they are to move the other side and, in some
cases, move the mediator to recommend your side’s reasonable solution to the problem.

Facilitative Mediation

   Facilitative or problem solving mediation is based on the premise that the parties jointly share a
problem and the mediator is there to assist them to solve it by using better communication and creative
problem solving. It assumes that the parties and their representatives will behave rationally and accept
that all disputes (especially this one) can be resolved. Although emotions and feelings are expressed, the
aim of this kind of mediation is not to unearth all the underlying causes but to focus on the parties’ needs
and interests. The parties themselves must actively participate in discussions in joint sessions so each
can hear the other and understand the perspective on the conflict and the needs and aspirations for a
resolution.

   The advocate in this setting must adopt a facilitative role, not as neutral as that of the mediator yet not
as a partisan like the traditional advocate. The assistance the lawyer can give to his client is to provide
support to the client who is expressing his position and views (with the lawyer perhaps adding further
facts or providing a more eloquent expression of the feelings that the client is struggling to articulate).
The lawyer, although empathetic, is detached from the client’s experience of the conflict and this
detachment may assist in allowing him to help the client understand the other side’s perspective,
reactions and feelings.

    Some litigators among you may think this is all well and good but social work was not the profession
you entered. Let me cautiously suggest that the skills of listening, empathy, reformulating and re-
articulating are all important tools in the advocate’s arsenal. Practising them now and again in a
facilitative mediation will not hurt your advocacy skills. You may be surprised later on to find how
useful this kind of change up pitch can be in the midst of a hotly contested piece of litigation.

Transformative Mediation

    Some theorists argue that there is a third type of mediation, transformative mediation, in which the
resolution of the dispute is secondary to the process of changing the parties’ attitudes towards themselves
and each other -- in other words transforming them. The parties are heard, they acknowledge each
other’s position and accept responsibility for their dispute. In the process they become empowered and
far more willing to take control of and be responsible for their actions and more respectful of the other
                                                      -3-


party through a recognition and acceptance of their opponent’s story.3 Whether this is a separate type of
mediation or merely a stage to be aspired to in all mediations if possible, the advocate plays a much less
traditional role. To accomplish the transformation, a skilled mediator is required who can induce the
parties to truly “walk in the shoes of the other side”. It is, of course, important for the advocate to
understand the other side’s case and to attempt to understand the motivation and psychology of the
opponent. This is a normal requirement for standard litigation. Yet a process in which the aim is to have
your client feel the same way as the other side feels is contrary to the practice of adversarial advocacy
and is antithetical to the role which the lawyer plays on behalf of his client. Thus the role of the advocate
at the transformative stage of a mediation may be more limited. It is not for the lawyer to pressure his
client into a settlement. That decision must be made by the client. But once made, a lawyer may be a
great help in a transformative mediation. For example if the time comes for an apology, the lawyer’s
skill in expressing that apology and setting the stage for its delivery can make a significant contribution
to the achievement of the goal of transformation. After transformation, resolution usually readily follows
and the litigator can use her skill in assisting her client to formulate a solution with the other side.

Why Do It

    In all these different roles, the advocate is filling the ultimate role of the paraclete – the advocate or
intercessor, the person called in to help. Using advocacy skills in a mediation is just another way of
filling that role. If you listen to clients, many of them will tell you that they have no appetite for
litigation. Although embroiled in conflict, they do not see as rational the process by which the solution is
unpredictable, indeterminately expensive and protracted. To assist the client in dispute resolution
(which, after all, is the role of an advocate) in ways which are faster, cheaper and leave the decision on
the resolution in the hands of the client can only enhance your status as an advocate.

Preparation for Mediation

    In preparation for mediation, you can behave very much like a litigator. You should understand the
best and worst facts of your side’s and the other side’s case. You should probe the weaknesses of each
side and see what ameliorating facts can be summoned to put your side’s weaknesses in context. You
should develop your theme and theory. You should marshal the persuasive facts, collect the relevant
documents and explore the possibilities for resolution. All of this is done in an ordinary piece of
contested litigation and will be familiar territory for the advocate. Here your skills and experience in
trial work will be very valuable for clients mediating their disputes.




3
    Debbie De Girolamo, Transformation or Illusion?: An Analysis of the Promise of Transformation and a
    Proposal for an Integrative Approach to Mediation, pages 33-34 (Faculty of Law, York University, 1996)
    [unpublished]
                                                         -4-


II. ARBITRATION

   Advocacy in the arbitration field is more closely aligned to the litigator’s traditional work. Although
arbitration may arise in many ways, there are essentially three main reasons to arbitrate:

                  (i)      you can pick your decision maker;

                  (ii)     you can choose not to make it binding;

                  (iii)    you can keep the proceedings private.

    None of these luxuries are available in a court process.

    In many arbitrations, the Rules of Civil Procedure are used. Production, discovery, rules of evidence,
examinations and motions are carried out just as though you were in a court proceeding. The only
difference is you are paying for the judge (and probably for rent on the room). Yet if the parties agree to
different procedures, arbitrators will usually allow it. In this respect some courts are not far behind.4

Picking the Arbitrator

   Sometimes the choice of arbitrator is easy -- both counsel have a similar view as to the
appropriateness of a particular retired judge or industry expert who would be ideal for the case at hand.
Other times the views on the “who” question differ widely. One counsel may want a black and white,
legalistic decision maker. The other may be looking for palm tree justice. When agreement is not
forthcoming, it is necessary to devise ways to pick the decision maker. These can be simple (agreed
names in a hat) or elaborate. One elaborate process used in a major international commercial arbitration
saw each side develop lists of ten names for each of the three arbitrators. One arbitrator was to come
from country A; the second was to come from country B and the third was to come from anywhere. Each
side dutifully developed (after much expense and research) a list of ten names for the three spots. The
names were exchanged. The hope was that there would be a match on some of the lists. Amazingly after
two rounds of this, no matches appeared. The cost behind the development of each list was significant so
instead of continuing to develop endless, non-matching lists, one side chose from the other side’s lists.

    At first blush you might think this suicide. Yet the party who chose ultimately won the case,
notwithstanding that it was heard before three parties proposed by the opposing side. None of the
arbitrators was told how he was picked. None knew he was the suggestion of the losing party. The fact
is, when you are proposing arbitrators who are neutral (i.e. are not representing one side or the other) you
have no real certainty as to how they will decide the case. You may believe you know their tendencies.
You will have read all of their decisions and writings in order to try and “peg” them. But ultimately you
are just guessing.




4
    If litigants before the courts agree to streamline procedures (limited examinations, limited discovery, etc.) many
    judges will allow it. So the significant distinguishing feature of arbitration is the ability to choose the judge.
                                                     -5-


    If choosing your decision maker is the primary advantage of arbitration, are you better off having the
state pay for the guessing game? Some might well argue that you are. They would point out that in
court, after a trial, you at least have a direct appeal to the Court of Appeal which, in Ontario, is a high
quality bench which inspires confidence. If you arbitrate, under the Arbitration Act, 19915 the rights of
appeal are limited. Your appeal, at the first instance, on a question of law is heard by the Superior Court.
You may in fact end up in front of one of the very judges you were trying to avoid. Only if the
agreement provides, may a party appeal to the court on a question of law or a question of mixed fact and
law. The limit of the appeal, absent a term in the arbitration agreement, is to questions of law which are
important to the matters at stake in the arbitration or will significantly affect the rights of the parties.

    Ultimately it may be that the most realistic advantage you can gain from an arbitration is to find
someone who will listen. Generally speaking, if the parties are paying the decision maker directly, the
parties will likely be listened to. It does not mean you will win. Nor is it fair to suggest you won’t be
listened to in court, but arbitrators generally do a pretty good job of hearing out both sides. As well, in
the arbitration, your client will not have its dispute and evidence about its business exposed to public
scrutiny. That may be a significant advantage.

Ground Rules

   It is possible in arbitrations (and in some court proceedings) for counsel to work to streamline
procedures. Some approaches which can be used with success in arbitrations (and consensually in court
with progressive judges) include the following:

    1. Time Limits

         If parties agree, they can limit the amount of time each side has to present its case. Counsel can
         choose to spend her time on examination in chief or cross or on objections. It’s her nickel. The
         other side is similarly constrained. This has an interesting effect on proceedings. The long,
         meandering, argumentative cross-examination is only done at the peril of the party who is willing
         to sacrifice the examination in chief (where the case is most often proved). Continual
         interruptions or lengthy in-trial motions had better be very important if counsel is spending this
         limited resource on them. The time keeping can be tricky and problems can rise if someone has
         run out of time before an important piece of evidence has been presented. However, in an
         arbitration where these procedures have been agreed to by contract, a party will be stuck with its
         choices. When you think that major issues of the day can be dealt with in the Supreme Court of
         Canada in an hour, you can see the possibility of having time limits for arbitration hearings. It
         provides an amazing discipline on counsel.

    2. Pre-filed Evidence

         One way to streamline the case (again used in some courts) is to pre-file the evidence in chief of
         witnesses. It is helpful if the witness can also be taken through the high points in a limited oral

5
    S.O., 1991, c. 17, ss. 45, 49
                                                    -6-


        examination in chief. However if all of the detailed evidence and documents are pre-filed, this
        can shorten hearing time considerably.

    3. Panels of Witnesses

        This device is useful, particularly for the examination in chief. It allows evidence to be
        presented cohesively instead of in the patchwork quilt fashion that sometimes occurs because
        several people have been involved in one event. The challenges for the cross-examiner are self-
        evident. Even if the cross-examiner is successful in pinning down one of the panel on a point, re-
        examination can often repair the damage through another panel member filling in the story.
        Again there are courts which have permitted panels of witnesses.

    4. Rules of Civil Procedure and Rules of Evidence

        It is sometimes made a term of the arbitration agreement that the Rules of Civil Procedure apply.
        This may be appropriate but do not be surprised if your opposition moves for summary judgment
        on a matter that you thought was going to be fully heard. If the Rules apply, then those
        procedures are available. Rules of evidence can be relaxed by agreement in an arbitration. It is
        not done in a court proceeding although in a typical civil case there may not be much difference
        in the reality of the hearings since often civil cases will be tried without major evidentiary
        battles.

    5. Limits on Discovery

        Both oral and documentary discovery can be limited if the parties so choose. As much of the
        discovery which occurs in a court proceeding is a significant waste of time, this can prove
        advantageous for the efficiency of the proceeding if the parties can work out a sensible
        limitation.

   Skilled and experienced litigators who are familiar with the full range of procedures and their
advantages and disadvantages can tailor arbitration procedures to suit the needs of the matter.

III. SOME INNOVATIVE APPROACHES

1. Mini Trials

   There are clients who want to structure an efficient, inexpensive process. They may even be willing to
sacrifice the possibility of finding the smoking gun, hidden in the 49th box of documents. In other
words, these clients will even risk an adverse result if they can achieve significant efficiency and limit on
expense.

   Thus in even very complex cases, parties can agree to a truncated hearing. This could take the form
of a two day hearing where each side was given a maximum of five hours to put in its two major
witnesses and whatever documents it says are crucial. The opponent may be given two hours for cross-
examination. A set time would be given for argument. Clients who agree to this type of procedure
                                                    -7-


recognize that it is possible they can win or lose because of the shorter hearing. They are willing to take
that chance.

    In the U.S. a number of major corporations with intellectual property disputes have established the
National Patent Board. The idea is to facilitate quick hearings to disputes which, traditionally, can take
decades and involve multi-millions of dollars in fees. On top of that, the uncertainty of the patent
position is unsettling from the business perspective. The idea behind the board is to have a panel of
knowledgeable decision makers. Many of the patent cases before the board are resolved short of a
hearing. In a recent case that went to a hearing, the streamlined procedures had the matter resolved
within two months. The process is ideally suited for issues like construction of the patent. The
streamlined procedures which provided for limited discovery and a short hearing required counsel to
abandon his usual penchant for numerous depositions and massive documentary discovery.

   The client who told me about this particular case had lost the case which involved the construction of
a patent. He was, nevertheless, most enthusiastic about the process. He was similarly impressed with the
performance of his patent litigator who had adjusted to these differing procedures even though his usual
modus operandi was to “litigate a matter to death”.

   Here is where excellent counsel can thrive. Traditionally the top barristers at our bar have been
capable of handling many different types of proceedings, from preliminary hearings in front of Provincial
Court judges to appellate arguments in the Supreme Court of Canada on major constitutional cases and
everything else in between. This takes a flexibility of style and approach which the top counsel have
always displayed. The kind of flexibility required for some of the innovative approaches in ADR are in
keeping with this tradition and should be embraced.

2. Med/Arb

    Mediation followed by arbitration, if the mediation proves unsuccessful, is a technique that has been
in use for some time. Many arbitrators (particularly of the retired judge variety) express discomfort at
Med/Arb. This is understandable since the knowledge gained as a mediator can affect the approach taken
on the arbitration. In fact it is contrary to one’s notions of a neutral, uninfluenced decision maker to have
had him sit with the parties while each bares his soul during mediation. The prospect of impeding
arbitration tends to limit the disclosure during (and prospects of success for) the mediation. Yet there are
some mediators who are skilled at this form of ADR and, in the right case, it may provide an efficient
way of resolving the problem. One hopes mediation will result in a settlement, but if not, at least there
will be closure when followed by an arbitration.

   In this type of proceeding counsel truly must be light on her feet since she will switch from mediation
advocacy to the more traditional contested proceeding advocacy, sometimes at the same session.

3. Arb/Med

   More innovative is the use of arbitration followed by mediation. The parties go through arbitration.
Each hears the case of the other side. Each reflects on the strength and weaknesses of both sides’ case.
                                                       -8-


Before the decision is reached the parties mediate. The idea behind this is obvious. They will be in a
more realistic frame of mind to forge a solution on their own since they have seen the best and worst of
both sides of the case.

   A variant on this process is to have the arbitrator read both versions of the decision in an arbitration,
one for the plaintiff, the other for the defendant. The parties can then see how either side could be
successful. This generally puts parties in a frame of mind to find their own resolution.6

The Second Court System

   As parties turn increasingly to ADR the question arises as to whether we are losing the precedents of
the common law. Arbitration awards are private. We do not have a body of law being developed from
the many disputes that are decided by private adjudicators. Some express the concern that we are losing
precedents as we turn to private resolution.

   There are still many cases in the court system. Important matters of statutory interpretation,
administrative law, public policy issues and class actions provide the court system with ample
opportunity to articulate and develop the law. The use of alternative dispute resolution can be seen as
just another way of settling cases. In the same way as a settled case does not provide a precedent, so can
we regard the cases decided in this “second court system”.

    There are many challenges for lawyers practising in both the courts and in arbitration and mediation
settings. The essential skills of litigating can be used and honed in these settings and as clients turn
increasingly to them, litigators have adapted and will continue to adapt to the requirements of successful
lawyering in these differing arenas.




6
    Allan Stitt told me of this technique used by Richard Jackman, an Ottawa mediator.

								
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