As we all know, the two major components of Alternative Dispute Resolution are arbitration and mediation. Each is being affected by a major trend which could change how we approach our practice in these fields.
Arbitration Builds Muscle
In 2011, the Alternative Dispute Resolution section of the Connecticut Bar Association organized a seminar entitled “An Arbitration Grand Slam: Re-Establishing the Goals for Quicker, Cheaper, Better Protocols for Corporate and Transactional Counsel, Litigators, Arbitrators and ADR Providers.” That’s quite a title, but the theme of the seminar was simple: arbitration had become too much like litigation and everybody with a stake in the arbitration process had to try and do something about it.
The speakers reviewed concerns that arbitration had lost its most attractive features. It had become too expensive, too slow, too burdened by extensive discovery and the ever-continued hearings. Each participant was given a copy of the College of Commercial Arbitrators (CCA) study of arbitration and its 2010 booklet, “Protocols for Expeditious, Cost-Effective Commercial Arbitration.” The protocols called for a commitment by all arbitration stakeholders toward a more managed, sensible and efficient arbitration process.
Also in 2011, the American Arbitration Associaiton introduced the concept of “muscular arbitration” — offering a “leaner” model of arbitration — “trimmed of fat” and designed and administered by AAA and its arbitrators to minimize or eliminate unnecessary litigation-like efforts by counsel. This year, the AAA showcased this concept at its annual Neutrals Conference. The message was clear: Arbitrators are expected to manage their cases with an eye toward expeditious and efficient resolution.
In essence, this new model of arbitration relies on the arbitrator to assume much more responsibility for managing the arbitration process by holding a preliminary conference to set expectations and deadlines; narrowing the issues and discovery demands; and streamlining the presentation of evidence at the hearing.
This is the same effort which the Connecticut courts undertook in the early 1990s. As a former chair of the judicial education committee and a frequent instructor at our judge’s institute, I can attest to the effort we put into designing courses on effective case and trial management. As a member of the family and civil task forces during those years, I worked with judges and members of the bar to develop (what have now become routine) trial management protocols. The result was the elimination of a five-year wait for a trial.
But, of course, arbitrators have different backgrounds, perspectives and concerns than judges. Not all arbitrators are lawyers or retired judges. They don’t have the authority of a black robe and they are, after all, hired by the lawyers appearing before them. As the CCA noted, a collective commitment to better arbitration practices is needed on the part of arbitrators, administering organizations, counsel and clients. Arbitrators alone are not going to move the culture toward greater efficiency.
This collective commitment has now taken hold and, in the coming year, the trend toward a better managed, more efficient arbitration process will grow. Clients and lawyers will draft arbitration clauses that constrain the time, money, and effort spent in disputes. Counsel and parties will logically limit discovery. Even seasoned and tough litigators are willing to agree to “chess clock” arbitration hearings, where time is limited for the presentation of evidence. And arbitrators with trial management skills and experience will be in greater demand.
Mediation Gets Brainy
While the arbitration community attempts to develop more muscle, the mediation community is working to increase the opportunity for settlement by focusing on the human brain. The ADR section of the CBA has informed us of this trend by offering a course called “Your Brain on Mediation.” In it, participants learned how recent advances in neuroscience research might be used to structure a better mediation process for clients and their counsel.
Mediation and negotiation training have become very sophisticated — moving past interest based negotiations and determination of your BATNA (best alternative to a negotiated agreement).
A quick perusal of professional journals, publications and blogs dedicated to mediation reveal articles about how the human brain processes information, manages emotions, focuses attention and responds during conflict or negotiations. This information is being used by mediators to design approaches and techniques, based on psychology and neuroscience, which maximize the chance for settlement.
Mediators and lawyers participating in mediation are reacquainting themselves with information they last studied in Psychology 101. They are being urged to understand such processes as cognitive dissonance, reactive devaluation and optimistic overvaluation in order to overcome these psychological barriers to wise decision making, compromise and settlement.
Even more interesting are the latest scientific advances in neuroscience. We have learned, for instance, that a mediator’s opening statement can “prime” the participants for cooperation by activating certain parts of the brain. Or that reframing an issue can reduce stress and anxiety by reducing cortisol production and leaving the brain better able to make good and logical decisions. Neuroscientists have used PET scans to learn that fairness may be hardwired. Researchers have found that fair treatment lights up the region of the brain associated with reward, while unfair treatment lights up the area associated with disgust.
At last year’s American Bar Association Section on Dispute Resolution Spring Conference, there were at least seven course offerings dedicated to the use of neuroscientific discoveries in mediation. Among mediators, the discussion of the amygdala versus the prefrontal cortex is becoming as common as the discussion about “getting to yes.”
Those mediators and lawyers who embrace these concepts have the potential to be rewarded with much higher settlements rates; happier clients; and demand for their services.
We have only seen the beginning of the application of neuroscience to the world of alternative dispute resolution. There is much more to learn in this fascinating field and it will continue to be incorporated into our mediation practices.•