2014 Track: ADR for the Litigated Case

March 28-29, 2014
21st Annual Northwest Dispute Resolution Conference

Workshops of interest to lawyers, mediators and arbitrators who use dispute resolution to settle litigated cases. 

To see the full conference workshop lineup click here to return to the 2014 Workshops page

2.7 The Anatomy of A Healthy Arbitration: A Dissection by the Masters
Presenters: Serena Lee, Vice President, San Francisco Regional Office, American Arbitration Association (AAA), San Francisco, California; Philip Cutler, Cutler Nylander & Hayton, Seattle, Washington; Julia Holden-Davis, Garvey Schubert Barer, Anchorage, Alaska

Do you know what a healthy arbitration looks like? Come to this highly interactive session and watch the detailed dissection of this “creature of contract” by a panel of leading arbitrators who will identify good choices attorneys and neutrals can make at various points of the arbitral process to ensure clients are provided with a fast, efficient, and fair arbitration. Attend this practical session if you want to avoid inflating the costs and time of your next arbitration!


2.2 Is That Ethical? A Brief Comparison of Negotiation Ethical Rules and Social Theory*

Presenter: Jeanette Nyden, J.D., President J. Nyden & Co., Inc., Seattle, Washington

Attorney mediators will examine the Rules of Professional Conduct associated with attorney-conducted negotiations and compare those rules to influential social and political theory which support six social norms to follow when negotiating agreements. Practitioners will explore the difference between proscriptive ethical standards (what lawyers cannot do) versus what influential social and legal theorists (like Ronald Dworkin) suggest people ought to do to live in a socially just society.
*1.25 Ethics CLE Credits

3.5 Keeping It Real: Authenticity in Judicial Mediations
Presenters: Hon. Ricardo Martinez, U.S. District Court, Western District of Washington, Seattle, Washington; Hon. Edward Leavy, U.S. Court of Appeals for the Ninth Circuit, San Francisco, California; Chris Goelz, Circuit Mediator, U.S. Court of Appeals for the Ninth Circuit, Seattle, Washington
In this moderated discussion, Judges Leavy and Martinez will discuss their approaches to mediation. We will explore issues including the role of authenticity in their settlement work and how being a sitting judge affects their ability to connect with parties and counsel. We will touch on ways that the litigation mind-set is affecting mediation and steps they take to help parties make constructive decisions in resolving disputes.


3.7 What’s Bad Faith Got to Do With It?
Presenter: Christopher Soelling, Christopher J. Soelling PLLC, Seattle, Washington

A frequent complaint in mediation is that the other side is negotiating in "bad faith." In this interactive discussion, we'll talk about whether behavior is really bad faith or just someone who doesn’t like the opposition’s number or bargaining style. Does it matter if one of the parties is an insurance carrier? If it appears to the mediator that bad faith exists, what can be done about it? Does a party or the mediator have the right or the duty to report bad faith to the court? Who has the power to punish bad faith, and what can that punishment be? Court rules, mediation statutes, and judicial decisions will help focus the discussion.

5.1 The Problem of Fairness in Commercial Mediation
Presenter: Fredrick D. Huebner, Arbitration/Mediation/Neutral Evaluation, Seattle, Washington

This session explores what behavioral economics and game theory tell us about ‘Fairness’ and how the parties’ quest for “fair” results can result in failed negotiations. We will discuss how to overcome misguided notions of fairness to reach economically rational results and to deal with special problems such as negotiating or refusing to negotiate with evil, the appearance of fairness, the neutrality obligation and the pro se mediation participant.


5.2 Laissez-Faire or Absolute Scrutiny: A Menu of Options for Balancing Neutrality and Fairness*
Presenter: Peter Robinson, Managing Director, Straus Institute for Dispute Resolution, and Professor of Law, Pepperdine School of Law, Malibu, California

This workshop will consider the variety of assumptions or thoughtful philosophies mediators have about ethical duties towards neutrality and fairness. These views have far reaching ramifications on mediator practice and technique. This interactive session will culminate in exploring whether the Model Standards of Practice provide surprising guidance on this foundational issue.
*1.25 Ethics CLE Credits

6.1 The Art of Negotiation: Practice Pointers for Enhancing Settlement Skills*
Presenters: Hon. Paris Kallas (ret.), JDR, Seattle, Washington; Hon. Bruce Hilyer (ret.), JDR, Seattle Washington; Kathleen Wareham, WAMS, Seattle, Washington

The session will explore the art of negotiation and how attorneys can improve their negotiation skills when settling matters for clients.
*1.25 Ethics CLE Credits

7.7 Scrivener’s Dilemma: Mediators Who Draft Settlement Agreements (WSBA Advisory Opinion 2223)*
Presenters: Leslie Grove, Attorney for Collaborative Law, Spokane, Washington; Professor Bob Collins, Director, Cardozo Law School Divorce Mediation Clinic, New York, New York; Don Desonier, Counselor at Law, Mercer Island, Washington
Moderator: Stephanie Bell, Straus Institute for Dispute Resolution, Pepperdine University school of Law, Malibu, California
Session Organizers: Leslie Grove, Attorney for Collaborative Law, Spokane, Washington, Rina Goodman, Transforming Conflict PLLC, Seattle, Washington

Washington State Bar Association Advisory Opinion #2223 cautions that by drafting Property Settlement Agreements and other documents for unrepresented parties, attorney mediators are practicing law and representing adverse parties in violation of the Rules of Professional Conduct. The panelists, who are all lawyer-mediators, will discuss the impact of this Advisory Opinion on all mediators and the general public. In particular, they will address the complex issues that are implicated, including traditional mediation training and practice, party self-determination, standards of practice, party economics, and access to justice. Bob Collins, who trains mediators all over the country, will offer a national and historical perspective. Don Desonier will trace the evolution of his own thinking on the topic throughout his career. Leslie Grove will chronicle how the interaction of rules, customs and opinion can dramatically affect both lawyer and non-lawyer mediators, their parties, and the integrity of the profession. Moderator Stephanie Bell will facilitate the discussion.
*1.25 Ethics Credits


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