PUBLIC COMMENTARY TO DATE

WSBA ADR Deskbook Table of Contents Commentary

*With comments as of 02-10-2010

WSBA ADR DESKBOOK DRAFT TABLE OF CONTENTS

INTRODUCTION- THE EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION AS A SUBSTITUTE FOR THE CIVIL JUSTICE SYSTEM

THE PRE-EMINENT FORMS OF ALTERNATIVE DISPUTE RESOLUTION

  1. DIRECT NEGOTIATION
  1. MEDIATION
  1. ARBITRATION

MEDIATION BEST PRACTICES

A. WHAT WORKS AND WHAT DOESN’T?

B. MEDIATOR SELECTION

C. EFFECTIVELY MANAGING THE MEDIATION PROCESS

D. EFFECTIVE ADVOCACY AT MEDIATION

ED.

ETHICAL CHALLENGES FOR MEDIATORS AND ATTORNEYS

F. *ETHICAL CHALLENGES FOR ATTORNEYS

*( One thought: the chapter on “ethical challenges” includes ethics of both mediators and attorneys. I suggest we consider separating those two, as quite different rules apply.)

Julia Gold

STATUTORY AND JUDICIAL REGULATION OF MEDIATION

  1. INFLUENCE OF THE UNIFORM MEDIATION ACT, RCW 7.07
  1. IMPACT OF WESTERN DISTRICT OF WASHINGTON LOCAL RULE 39.1
  1. TRUST & ESTATE DISPUTE RESOLUTION ACT (TEDRA)
  1. *JUDICIAL SETTLEMENT CONFERENCING

(I would recommend adding a section on Judicial Settlement Conferencing, not because it’s “new,” but because I believe it is critical to address the difference between it and mediation in your mediation chapters. And while experienced mediators of course know all about it, young lawyers will not have experience in it.) Melinda Branscomb

*INTEREST-BASED MEDIATION

*RIGHTS-BASED MEDIATION

(Second, I would recommend having two mediation chapters, “Interest-based Mediation” and “Rights-based Mediation.” As you know, these are so different as not to be the same process. While there are not bright lines, as you know, the former usually includes more open sessions, sometimes being conducted primarily in open session, punctuated only by discrete caucuses as the need arises. Typically it is used by mediators taking a facilitative rather than directive or evaluative role.

The latter usually occurs as shuttle negotiation, with few or no face to face sessions. The mediator typically carries offers back and forth between rooms, and not infrequently also serves in a more directive role regarding the merits. )

Melinda Branscomb

FAMILY LAW MEDIATION

MEDIATING CONSTRUCTION CLAIMS

*MEDIATING CLASS ACTIONS

(I hope you will also address class actions and arbitration in some section, as the law is evolving there.) Faith Ireland

ARBITRATION BEST PRACTICES

  1. EFFECTIVE ARBITRATION MANAGEMENT

B. ARBITRATOR SELECTION

C. UNIFORM ARBITRATION ACT, RCW 7.04A.

D. FEATURES OF THE FEDERAL ARBITRATION ACT

E. IMPORTANCE OF RULES IN ARBITRATION

G. COMMON ETHICAL CONCERNS IN ARBITRATION

MANDATORY ARBITRATION IN WASHINGTON

ARBITRATING CONSTRUCTION CLAIMS

UNINSURED/UNDERINSURED MOTORIST ARBITRATION

ARBITRATION OF HEALTH CARE ACTIONS, RCW 7.70A

LABOR ARBITRATION

ENFORCEMENT OF ARBITRATION AWARDS

*Appendices

([A] ttorneys love forms and sample documents –perhaps include a sample set of submissions to an arbitrator and to a mediator, on CD accompanying the book?)

Margaret Morgan, WSBA

Additional comments:
I am a little confused reading the Table of Contents. I am still having a hard time figuring out just who is the target market of this Deskbook. Is it for the mediation professional or the consumer of ADR services?
An example: The following is a selection of 4 sections that appear in sequence.
  • What works and what doesn’t seems to be pointed towards the consumer, but may go either way.
  • Mediation Selection is definitely for the consumer.
  • Effectively managing the mediation process seems to pointed at the mediation professional.
  • Effective advocacy is clearly aimed at the consumer.
There are several other areas where this same issue occurs. An example is the heading for “Mediating Construction Claims” This would appear to be for the mediator. If it was for the consumer it might read “Advocating Construction Claims.”If this section is for both mediators and consumers, maybe it should be “Construction Claim Mediation”
There is a new type of mediation/arbitration called Binding Mediation. I was just asked to do one in a construction setting and it was very interesting. The type of mediation was agreed to in the contract through CDR. I agreed to take on the task. It was interesting and this particular case had a lot to do with the final resolution. Should there be a new heading between mediation and arbitration?
Are there any other hybrids out there?
Just a quick review.
-Sherman Knight
WSBA ADR DESKBOOK DRAFT TABLE OF CONTENTS
INTRODUCTION- THE EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION AS A SUBSTITUTE FOR THE CIVIL JUSTICE SYSTEM
I. THE PRE-EMINENT FORMS OF ALTERNATIVE DISPUTE RESOLUTION
  1. DIRECT NEGOTIATION
B. Judge assisted settlement conference
  1. MEDIATION
  2. ARBITRATION
II. MEDIATION BEST PRACTICES
  1. WHAT WORKS AND WHAT DOESN’T?[How does this differ from E? B and D seem to imply this chapter is about advocates. If it is about both the advocate and the mediator, it needs to be made clear]
  2. MEDIATOR SELECTION
  3. EFFECTIVELY MANAGING THE MEDIATION PROCESS
  4. EFFECTIVE ADVOCACY AT MEDIATION
  5. ETHICAL CHALLENGES FOR MEDIATORS AND ATTORNEYS
III. STATUTORY AND JUDICIAL REGULATION OF MEDIATION
  1. INFLUENCE OF THE UNIFORM MEDIATION ACT, RCW 7.07
  2. IMPACT OF WESTERN DISTRICT OF WASHINGTON LOCAL RULE 39.1
  3. TRUST & ESTATE DISPUTE RESOLUTION ACT (TEDRA)
FAMILY LAW MEDIATION
MEDIATING CONSTRUCTION CLAIMS
MEDIATING CLASS ACTIONS
ENFORCEMENT OF SETTLEMENTS
IV. ARBITRATION BEST PRACTICES[Again, is this about the arbitrator or the advocate? It needs to be made clear, probably by having separate chapters or at least subchapters here and with mediation best practices]
  1. EFFECTIVE ARBITRATION MANAGEMENT
B. ARBITRATOR SELECTION
C. UNIFORM ARBITRATION ACT, RCW 7.04A.
D. FEATURES OF THE FEDERAL ARBITRATION ACT
E. IMPORTANCE OF RULES IN ARBITRATION
  1. COMMON ETHICAL CONCERNS IN ARBITRATION
MANDATORY ARBITRATION IN WASHINGTON
ARBITRATING CONSTRUCTION CLAIMS
UNINSURED/UNDERINSURED MOTORIST ARBITRATION
ARBITRATION OF HEALTH CARE ACTIONS, RCW 7.70A
LABOR ARBITRATION
ENFORCEMENT OF ARBITRATION AWARDS
The headings should have Roman numerals so one can refer to, e.g. II D, rather than Mediation Best Practices D.
-Lish Whitson
My overall comment is that there’s quite a bit omitted here. What about all of the various forms of mediation and dispute resolution models practiced by lawyers?
-Rina M. Goodman