Published: July / August 2019
By: Bruce A. Blitman
While negotiation, mediation and arbitration have long been preferred ADR processes for resolving disputes, they are far from the only approaches to be considered and utilized by disputing factions. This article will provide an overview of various “alternative” ADR processes that are now being employed.
SUMMARY JURY TRIALS (SJT)
The SJT gives lawyers and their clients an advance assessment of what a jury might do in their case. It is usually a nonbinding process in which attorneys briefly present their cases to a jury, which then renders a nonbinding advisory decision. The parties are then given the opportunity to settle the case. If they are unable to reach an agreement, the parties can proceed to a full trial. Since the summary jury is usually not given an opportunity to hear directly from the witnesses in the case, the parties will not know how a jury would evaluate the credibility of their witnesses. But the SJT will provide the parties with some idea of the strengths and weaknesses of their case and thus a more reasonable understanding of the parameters of the case’s settlement range.
EARLY NEUTRAL EVALUATION (ENE)
This is a newer form of judicial, court-annexed ADR which involves early, systemic case assessment by a private attorney or retired judge, who is experienced in the subject area of the dispute. The idea is to have an objective analysis by a respected, neutral evaluator before the parties become so embroiled in the litigation process they are unable or unwilling to settle. There are no formal rules of evidence in this procedure, and there is no formal examination or cross-examination of witnesses. All communications during the session are confidential. After an opening statement from the neutral evaluator, the parties present a narrative of their case and exchange detailed information. The neutral helps the parties identify the areas of agreement, assess the strengths and weaknesses of each side’s case, and formulate a plan for conducting discovery. Ideally, the exchange of information will stimulate settlement discussions.
MAGISTRATES, SPECIAL MASTERS AND NEUTRAL EXPERTS
Magistrates assist federal district judges in conducting discovery in mass tort cases, conducting early neutral evaluation conferences, and hosting judicial settlement conferences. The parties and their attorneys can also agree to have a magistrate serve as the judge in their case. Courts have authority to appoint special masters when exceptional conditions are present in a case or because the complexity of the case requires additional assistance. Masters (or magistrates) can render accounting, preside over hearings and make findings of fact and recommendations. In cases involving complex technical or scientific issues, the court can appoint a neutral expert to study a certain issue and render an oral or written report to the court or to the parties. Such neutral experts can be especially useful to the court in cases involving patent infringement, copyright, trade secret violations, antitrust cases, or other areas within their unique expertise.
Sometimes referred to as “rent-a-judge,” the parties agree to accept the decision of a mutually approved neutral, who will preside as judge over the proceedings. This process can be used when the parties need special expertise and do not care to set precedent or may wish to avoid publicity. This process enables the parties to have their “day in court” without the customary delays of trial at a public courthouse. On the other hand, the decision of the private judges may be subject to judicial review and parties’ rights of appeal of adverse rulings may be limited or nonexistent. This ADR process has sometimes been called “rich person’s justice” by critics, who claim that it enables affluent persons and corporations to circumvent the delays and inconveniences of the traditional legal system.
An ombudsman (or “Ombuds”) is a neutral individual who hears complaints, engages in fact finding, and generally promotes the resolution of disputes through informal methods like mediation, negotiation and counseling. The concept of the ombudsman originated in Scandinavian countries, where a public official would be designated to listen to complaints from the public and attempt to respond to these complaints. In the United States, an ombudsman is frequently employed by private organizations and corporations, universities and hospitals to handle employment problems and complaints. Employees can complain to the ombudsman with the understanding that their conversations are confidential.
There are many alternatives to traditional litigation and the most commonly utilized ADR procedures of negotiation, mediation and arbitration. Counsel should consider and discuss all ADR options with your clients before selecting the ones that are most appropriate and beneficial to their circumstances.
BRUCE A. BLITMAN is certified by the Florida Supreme Court as a Circuit, Family and County Court Mediator. Since 1989, Bruce has mediated thousands of disputes throughout Florida and lectured and written extensively about the benefits of ADR. He recently relocated from Broward County to Palm Beach County and can be contacted at BABMediate@aol.com.
For additional ADR tips and resources, go to http://www.palmbeachbar.org/adr/.