By John Lande Part I described the “prison of fear” that keeps many lawyers and parties from negotiating early in a dispute. This Part describes how lawyers can initiate and conduct a “planned early negotiation” or “PEN.” Lawyers should routinely do an “early case assessment” to analyze what procedure would be most appropriate. In some cases, it is clear from the outset that the parties need to engage in all-out adversarial litigation. But in most cases, both sides would be better off by cooperatively managing the case and considering negotiation at an early stage. It can be especially important for lawyers to build confidence at the outset, when the parties may be especially afraid and distrustful. Lawyers should get to know each other by arranging a face-to-face meeting, if possible, perhaps over a meal. When they have personal connections, they are more likely to resolve problems that may arise. Lawyers can reassure their clients that they have little to lose by exploring negotiation as they can stop the process at any time. If they proceed in litigation, they generally will not have lost much since they will generally exchange information that they would provide in litigation anyway. Early in the case, lawyers can identify the information that each side needs to reasonably evaluate the matter. By voluntarily sharing information, they show that they are confident in their case and interested in negotiating a fair agreement. They can start by exchanging basic information that is clearly necessary and discoverable. After that, they can decide if specific additional information would be necessary. Lawyers often need experts’ analyses both for negotiation and litigation. When appropriate, lawyers can avoid expensive and risky “battles of the experts” by hiring joint neutral experts instead of partisan experts for each side. Lawyers can also help design multistep dispute resolution processes so that if they have problems with direct negotiation, they can use mediation and arrange for arbitration if they do not reach agreement within a specified period. If parties do adjudicate the dispute, lawyers can narrow the issues to be argued, identify expert witnesses to be called, share exhibits, and generally inform each other of their plans. Lawyers can also commit to focus their arguments on the merits of the dispute and avoid tactics that unnecessarily aggravate the conflict. This description is adapted from an article that will appear in a fall issue of Alternatives to the High Costs of Litigation, published by the CPR Institute. It is based on my book, “Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money” (ABA 2011). For more information about the book and to order it, click here. The book includes numerous practical forms on a CD for lawyers to use in their own practices. Technorati Tags: law, ADR, arbitration John Lande is Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law. He teaches courses on lawyering practice, non-binding methods of dispute resolution, and dispute system design. He began mediating professionally in 1982 in California. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He was a fellow in residence at the Program on Negotiation at Harvard Law School. Before coming to MU, he was on the faculty in the Dispute Resolution Department at Nova Southeastern University and he was Director of the Mediation Program and Assistant Professor at the University of Arkansas at Little Rock School of Law, where he supervised a child protection mediation clinic. The Legal Trends Network identifies him as a legal trendsetter. For more about his background, read the interview from the ABA Section of Dispute Resolution’s newsletter and Gini Nelson’s interview of John from her “Engaging Conflicts” blog. Professor Lande may be reached at landej@missouri.edu.

By John Lande In an all-too-common pattern in litigation, settlement comes only after the lawyers engage in adversarial posturing, the original conflict escalates, and the parties’ relationship deteriorates. It costs a lot, takes a long time, and none of the parties is happy with the settlement. Almost any disagreement can escalate the conflict and divert energy from the tasks needed to resolve disputes efficiently. Although some lawyers enjoy this process and make a good living from it, many would prefer to use a more constructive and efficient process. They know that most cases eventually will settle–but often only after a process that takes too long and costs too much–and they feel powerless to steer clients toward a more productive path. They are often trapped in a “prison of fear” that locks them into unnecessarily long and expensive litigation. They fear that the other side would interpret the mere suggestion of negotiation as a sign of weakness and an invitation to take advantage of their clients. Logically, this is absurd because people with strong cases should be interested in early settlement under favorable terms. But this fear still grips much of the legal profession. Lawyers also sometimes worry that they will lose revenue if they negotiate early in a case. Many lawyers are still afraid to suggest anything but the traditional hourly billing system, which incentivizes inefficiency. ESCAPING THE PRISON OF FEAR Lawyers sometimes do escape from their prison of fear. They help clients assess the benefits and risks of negotiation, let the other side know of their interest in negotiation–but willingness to litigate if necessary–and cooperate with the other side in a constructive planned early negotiation, or “PEN.” In PEN processes, lawyers can maintain or increase their revenue by offering creative compensation arrangements that satisfy both clients’ and lawyers’ interests. They can design fee arrangements that provide bonuses for achieving clients’ goals and resolving matters relatively quickly. Sharp lawyers can generate efficiencies, share the savings with clients, and thus increase their effective hourly rates. PEN is not appropriate in every case but when it is, it is a useful tool for lawyers to satisfy many clients and make money by using their time more efficiently. Part II will describe how to initiate and conduct planned early negotiation. This description is adapted from an article that will appear in a fall issue of Alternatives to the High Costs of Litigation, published by the CPR Institute. It is based on my book, “Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money” (ABA 2011). For more information about the book and to order it, click here. The book includes numerous practical forms on a CD for lawyers to use in their own practices. Technorati Tags: law, ADR, arbitration John Lande is Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law. He teaches courses on lawyering practice, non-binding methods of dispute resolution, and dispute system design. He began mediating professionally in 1982 in California. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He was a fellow in residence at the Program on Negotiation at Harvard Law School. Before coming to MU, he was on the faculty in the Dispute Resolution Department at Nova Southeastern University and he was Director of the Mediation Program and Assistant Professor at the University of Arkansas at Little Rock School of Law, where he supervised a child protection mediation clinic. The Legal Trends Network identifies him as a legal trendsetter. For more about his background, read the interview from the ABA Section of Dispute Resolution’s newsletter and Gini Nelson’s interview of John from her “Engaging Conflicts” blog. Professor Lande may be reached at landej@missouri.edu.

By Brett Goodman The Texas ADR Act, provides for very broad confidentiality in mediation procedures. Section 154.073 states in relevant portion that: (a) Except as provided by Subsections (c), (d), (e), and (f), a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding. (b) Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute. (c) An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure. (d) A final written agreement to which a governmental body, as defined by Section 552.003, Government Code, is a signatory that is reached as a result of a dispute resolution procedure conducted under this chapter is subject to or excepted from required disclosure in accordance with Chapter 552, Government Code. (e) If this section conflicts with other legal requirements for disclosure of communications, records, or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure. Thus, the ADR Act provides for a great deal of confidentiality except for a few excepted occasions. The broad scope is further reinforced in another provision of the Act, wherein it is declared, “Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute,” and, “Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” Given the broad nature of these provisions, a problem that arises is a lack of uniformity or certainty in their interpretation. Although the Texas confidentiality rules are not perfect, Texas has for years taken a stance against adopting the Uniform Mediation Act (UMA), which has been adopted or at least introduced or addressed in nearly half of the United States. The UMA takes quite the opposite approach in terms of confidentiality; while the Texas ADR Act begins with a presumption of confidentiality until a valid exception is raised, the UMA Section 8 says, “Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.” Of course, either act has its positive notes and drawbacks. One of the main purposes for confidentiality of mediation proceedings is that those participating in the mediation trust both the mediator and in the process itself, thereby promoting efficacy. With a more limited stance on confidentiality, the UMA may cause many to harbor more doubt in relation to mediation, thereby acting as a detriment to the underlying cause. On the other hand, the framers of the UMA have recognized the value uniformity across states could have on mediation in America, which would ease doubts in mediation from a different, horizontal choice-of-law type of angle. The problem is that the numerous exceptions and seemingly complex structure of the UMA do not make it attractive in comparison to the Texas ADR Act. Even the most recent Texas cases have shown at least a consistency within the state of Texas in following the general outline of the ADR Act provisions. In 2010, an order compelling discovery and attorney testimony were said to have violated the confidentiality requirements of the act. See In re Empire Pipeline Corp., 323 S.W.3d 308, 315 (Tex. App. — Dallas 2010, no pet.). Following a settlement agreement reached in mediation between H. Glenn Gunter and the Empire Pipeline Corporation over which there were attempts to rescind or invoke from the respective parties, Harris, attorney for Empire Pipeline, was informed that he would be required to produce various discovery documents. The court determined, “[A]ll such discovery is barred by sections 154.073(a) and 154.073(b) of the civil practice and remedies code…[and] the trial court abused its discretion by ordering the testimony and production of documents at issue.” At the very least, then, recent jurisprudence reveals courts in an uncontroversial manner adhering to the Texas ADR Act. Although the limited text concerning exceptions to the broad rule of confidentiality within the ADA Act, courts have made the right moves in interpreting the possibly enigmatic provisions. Perhaps it makes the most logical sense to consider the portions of §154.073 in order. In subsection (a), “communication relating to the subject matter of” mediation is protected as confidential. (emphasis added) So the question arising from the language is whether unrelated communication during mediation is also confidential and how this would gel with subsection (b)’s assurance of a confidential record at mediation. Taking these two provisions together, a Texas court has found no confidentiality when the material sought did not relate to the substantive issues of the mediation. See In re Daley, 29 S.W.3d 915, 918 (Tex. App. — Beaumont 2000, no pet.). In a case stemming from an automobile accident, the court required an employee of an insurance company holding the policy of one of the accident’s victims to attend mediation.The lower […]

Need CLE credits? Mark your calendars! The State Bar of Texas will host its 27th Annual Personal Injury Law Course. Topics include: • How to Try the $50,000 (& Under) Case from A-Z • Social Media: Cutting Edge Evidence Questions • Claims Against Governmental Entities • Medical Malpractice Update • New Approaches to Damages for Juries Karl Bayer will be presenting the section on mediation. The locations are as follows: LIVE: Dallas, July 6-8, 2011 LIVE: San Antonio, August 10-12, 2011 LIVE: Houston,September 14-16, 2011 LIVE: Houston, November 2-4, 2011 VIDEO: South Padre Island, October 12-14, 2011 VIDEO: Fort Worth,December 7-9, 2011 Find the brochure here. Register here.   Technorati Tags: law, ADR, arbitration