Trial skills will enhance your ADR skill-set. During the month of January we have focused on bridging the gap of disconnect between the two practices, and we have shown how developing great trial skills can make you better in mediation, arbitration, and negotiation.
For the final post in our Alternative Dispute Resolution series, Karen M. Lockwood, NITA’s Executive Director joined me in studio71 to answer a few final questions on the correlation between the ADR skill-set and the Trial skill-set. Karen has over 30 years of experience in the legal industry. Her specialties include construction litigation, commercial disputes, large disaster cases, antitrust, trademark and copyright, and ADR. She has been on the American Arbitration Association Commercial Panel since 2004. Karen was an Adjunct Associate Professor of Law in ADR at the American University of Washington College of Law as well as a faculty member and program director at multiple NITA trail skills programs.
We hope that this five-part series has helped you bridge the gap between trial skills and ADR, and that you have learned that trial-skills are in fact very important in the practice of ADR. We also hope that this series has helped you be less afraid of trial.
Previous January ADR Series Posts
- Part 1 - Can ADR practitioners excel without honing their trial skills?
- Part 2 - Mediation and endless curiosity
- Part 3 - Negotiation and the insecurities over losing control
- Part 4 - Arbitration and the Art of Witness Examination
Thank you for reading and weighing in on ADR this month. Next month we will be focusing on Diversity in the Courtroom in honor of National Black History Month.
If you are looking for one book to guide you through the arbitration process, look no further than the NITA classic Arbitration Advocacy, 2nd Edition.
Authors John W. Cooley and Steven Lubet have combined their experiences in the courtroom and classroom to bring you a detailed and in-depth guide to arbitration and Alternative Dispute Resolution. This comprehensive text is designed to help readers understand and master arbitration and ADR from beginning to end. Arbitration Advocacy has been written for ADR practitioners, ADR neutrals and arbitrators, CLE organizations and participants, and teachers and students.
The book takes readers through the entire arbitration process, with chapters on general description of ADR and arbitration, pre-arbitration considerations, advocacy during arbitration hearings, and effective advocacy in cyberarbitration. Chapter 5 includes adapted sections of the NITA bestseller Modern Trial Advocacy, which discuss trial advocacy principles that pertain to arbitration hearings.
In-text charts supplement the material as the reader works through the book, helping to break down the content. The 200+ page appendix includes:
- Checklists that detail key elements of chapters 2-6
- American Arbitration Advocacy rules
- Uniform and Federal Arbitration Acts
- JAMS Rules and Procedures
- Selected ABA Rules of Professional Conduct
- and much more!
This post was written by guest blogger Christina Habas.
Arbitration and the art of witness examination: If you don’t know the witness exam and oratory/argument skills, you won’t have the alacrity to use them on a moment’s notice when the chemistry of the arbitration proceeding calls for it. If you learn them as trial skills, you can create a balance by incorporating them suitably to the flexible arbitration process.
An arbitration proceeding is no less a trial than a jury trial, despite the fact that no jurors are present to act as your audience. Your audience must clearly understand the story of your case, which is presented mostly through witness examination. That “story” will vary as to each witness, and their relative connection to the facts of your case. Your organization of that information will have a direct impact on the arbitrator(s) reaching their own conclusions about the importance of the witness’ testimony. Setting up the witness’ credibility to testify as to certain facts, illustrating their personal knowledge of those facts, and communicating the entire picture of information available to that witness (good and bad) in an understandable and memorable way requires a lawyer to utilize witness examination skills.
An arbitration will sometimes take on a life of its own. The arbitrator(s) often have sophisticated understanding of the legal issues involved in a case, and may wish to intervene in the presentation of your case. This requires the lawyer to exercise effective advocacy skills in listening to the issues raised by the arbitrator(s) questions, thinking about how best to address those issues, and asking sufficiently directed questions that are designed to provide the arbitrator(s) with the information needed to find for your client. A lawyer must be able to change their presentation to address what the arbitrator(s) believe are the core issues of the arbitration.
As your case is presented at arbitration, your ability to weave those facts and stories into your final argument that will motivate the arbitrator(s) to exercise their power on your behalf requires the lawyer to understand how decisions are made. The lawyer’s ability to clearly identify what it is that is being requested, and allow the arbitrator(s) to persuade themselves based upon the story of the case told through witnesses, is a critical skill. Although the terminology used by the lawyer during argument may differ somewhat from presentation to an audience of jurors, and the arbitrator(s)’ knowledge of the relevant law may be more refined than that of a jury, the art of presenting facts in a compelling manner that allows the arbitrator(s) to persuade themselves is a necessary skill for any lawyer contemplating arbitration.
Previous posts in this series:
- Part 1 – Can ADR practitioners excel without honing their trial skills?
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
Upcoming posts in this series:
- Part 5 – ADR in studio71
You can join in our LinkedIn discussion on the ADR topic here!
This post is written by guest bloggers Bill Jack and Behka Sitterly.
The ultimate challenge for the Spiritual Warrior is relinquishing control. – Book of Runes
Face it. Trial lawyers go to law school in large part because they are competitive control freaks. They dream of being warriors ready to do battle in courtrooms all over the country, aggressive, lightening-quick on their feet, brandishing sheafs of victory verdicts as testaments to their raw power.
Except that few graduates ever go to trial or see the inside of a courtroom, and instead become “Get Ready for Trial” lawyers buried in deposition conference rooms and discovery disputes. 95%+ of civil cases settle short of trial, thus requiring a much different set of skills that does not depend on a competitive negotiation style.
A spiritual warrior, referred to in the Book of Runes, develops a set of skills based on relinquishing control that—counter-intuitively—fosters focus and strength. These are the kinds of skills a successful negotiator needs to master.
Here are some thoughts:
- Every successful negotiator has to have the confidence and courage to know they can go to trial, acquit themselves well, and take a verdict. In this age of disappearing jury trials, that means using NITA trial advocacy programs or trying to find trial experience any place they can.
- To be successful at negotiation, the lawyer needs to be prepared to relinquish control over information sought by the other side, sometimes over the client (especially in a mediation setting), and, worst of all, over having to listen to (and hear) the other side’s viewpoints. A primary goal of negotiation is to gather information, and that requires ceding control to the other side—or at least to the mediator.
- Relinquishing control also requires moving from a competitive, aggressive style to a more collaborative, problem-solving strategy, working together with the opposition and/or the mediator to find a mutually advantageous result. Almost by definition, that cannot be done if the lawyer’s only speed is turbo Rambo. Rats. Whatever happened to win at all costs?
- The really good negotiator spends time not on the question of whether to relinquish control but when and how to do it to their client’s advantage. That is the true art of negotiation.
- Finally, the ultimate relinquishment of control in the ADR setting is realizing that a successful resolution of a dispute is not about “winning” or “losing”, it is about finding a path to resolution—making today’s lawyer a different breed of warrior, but one that is no less powerful.
Read previous posts in this series here:
- Post 1 - Introducing ADR month! written by Travis Caldwell
- Post 2 - Mediation and Endless Curiosity written by Shahrad Milanfar
Come back for the last two posts in this series:
- Post 4 - Arbitration and the Art of Witness Examination, written by Christina Habas, scheduled to be published on January, 23rd.
- Post 5 - ADR in studio71: An Interview with Karen M. Lockwood, scheduled to be published on January, 30th.
As part of our ADR series, this month’s book report will highlight a textbook that supports and educates legal professionals involved with Alternative Dispute Resolution. The Mediator’s Handbook is a NITA favorite, and a book that covers all aspects of mediation and ADR.
This book is broken down into stages, to better separate and explain the mediation process. The stages include the Initiation and Preparation Stages, the Introduction Stage, the Problem Statement Stage, the Problem Clarification Stage, the Generation and Evaluation of Alternatives Stage, and the Agreement Stage. These stages are prefaced and summarized with introductory and conclusive chapters as well. The Mediator’s Handbook also includes lengthy and convenient Appendices, which provide the reader with helpful checklists, guidelines, examples, and models of mediation-related processes.
The Mediator’s Handbook discusses the basics of mediation; communication skills; pre-conference, conference, and post-conference duties; and hybrid and non-mediation processes. Author John W. Cooley has used his years of experience as a government and private practice mediator to create a book that relates to legal professionals of all capacities, including:
- Mediators and lawyers who are involved with litigation and non-litigation disputes
- Organizers and participants of Continuing Legal Education programs
- Teachers and students of law courses on mediation, mediation advocacy, or ADR, and
- Advocates who represent clients in mediation.