Modern adr: a whoLe new worLd
Mediation & arbitration Section Co-Chairs: LaraTibbals – TibbalsMediation, LLC & ChristineDerr – Harris, Hunt & Derr, P. A.
do it on your terms and in your own time. Make adr work for you.
After almost twenty years in the litigation world, I can tell you I find myself being more of a desk-chair therapist than a real-life Jack McCoy or Atticus Finch. In fact, several years ago, I changed my occupation description on social media from“ attorney” to“ problem solver” because when clients called me that was my primary objective. I was no longer looking at whether or not this was a good opportunity for a trial, I was looking at how to get my clients into a better situation than the one they were in. After eight years of being a Certified Mediator and an arbitrator, along with continuing to litigate, I have discovered that there are a number of ways to get there, and“ alternative dispute resolution” or“ ADR” offers a myriad of options. Now, leaving litigation to open my own ADR firm, I am embracing a new style of ADR.
Mediation is not just about the numbers anymore. Both mediators and attorneys, in all types of cases, are focusing more on people and solutions than on dollars. The HCBA has published three versions of The Florida Mediation Best Practices Handbook, which
collects input from attorneys, mediators, judges, legal assistants, adjusters, and others regarding what makes or breaks a mediation experience. In the latest edition, the word“ empathy” is mentioned FIVE times. Also mentioned are active listening and the use of humor. The bottom line is, people want mediators with humanity because problem solving is about connecting with people— not just calculating numbers.
Beyond traditional mediation, I have found there are almost unlimited ways to creatively use ADR in our practices. Obviously, pre-suit mediation is always an option, and I think a great one. I wholeheartedly suggest an exchange of information and documents akin to a true goodfaith initial disclosure ahead of time, so everyone can really assess where they stand in advance of the mediation.
Additionally, there is also voluntary arbitration. Clients can sign arbitration agreements after a dispute arises, and those agreements can say virtually whatever they want. Binding or non-binding, on the papers, just oral argument, witness testimony, virtual or in person, one arbitrator or more, prevailing party fees and costs or not, confidentiality, tolling agreements— there is not much you cannot do. I generally dislike wholesale arbitration clauses and agreements because traditional arbitration is expensive and often turns into a mini-trial. But locally you have many private arbitrators with no“ filing fees” who will arbitrate your dispute with or without a court order. Use us, don’ t wait to be forced into it after a year or two of litigation. Do it on your terms and in your own time. Make ADR work for you.
I welcome you, lawyers and professional neutrals, to a whole new world of ADR. A world where you are encouraged to be human, thoughtful, and creative. A world of problem solving. I hope you will embrace it with me. n
Author: Mandi Clay – Ace Dispute Resolution, LLC
Join the Mediation & Arbitration Section today. Visit your Member Profile at www. hillsbar. com.
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