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!
With the dawn of 2013, we inaugurate a new blog feature: themed discussions on topics that help you think about your practice and your skill set. Throughout 2013, you will find multiple posts from guest writers that consider and develop a monthly topic.
January is ADR month! Our question is this: Can ADR practitioners excel without honing their trial skills?
We pose this question as the reverse of the usual comparison between trial and ADR practice. It is often observed that a trial lawyer entering an ADR proceeding without training in ADR will miss opportunities that an ADR practitioner could create for the client. True enough.
Thinking more deeply, however, the key point is whether an ADR practitioner is prepared to be an advocate in the strongest sense, using well-developed witness examination and argument skills learned and practiced in a more formal environment. The talented practitioner uses those skills effectively and adapts them appropriately to the ADR process. How are well-prepared practitioners preparing?
Let’s start this series with a definitional review of ADR, or alternative dispute resolution (that is, alternatives to trial processes). The origin of these ADR models in the early 1900′s, advancing the values of speed and cost economy, met with resistance on the grounds that constitutional due process and justice guaranteed jury trials. When Congress passed the Federal Arbitration Act in 1925, those due process grounds for resistance ended and ADR processes have multiplied, particularly in the last 20 years. The most well-established types of ADR are negotiation, mediation and arbitration. Among those three, there have evolved various hybrid processes.
Negotiation simply refers to each of two or more parties (the self and the “other”) trying to persuade the other of its position and ultimately coming together with an agreed solution to a mutual problem. Negotiation can be as informal as deciding where to go to lunch with your spouse. Counsel are typically involved for disputes or deals that are more complicated, or specialized, or of a value critical to at least one party.
Negotiation and mediation are distinguished from trial as a method of resolution in that they lie completely in the control of the parties to the dispute. No third party makes the decision – rather the parties address the facets of their differences and attempt to reach an agreement that resolves some or all of the differences at hand. Negotiation thus forms a building block for many other forms of ADR.
In mediation, the parties enlist a neutral facilitator to assist them in what remains basically a negotiated resolution. The well-trained mediator helps the parties understand the problem, the interests of each party, and possible options for resolving the disputes. Mediation from outward appearances bears little resemblance to litigation. Formal evidence and witnesses are rarely examined on a record. The agreement is confidential and is reached by the parties involved, not the mediator, who has no decision making power. Further, mediation as a mandatory court rule governing the pre-trial process may look very different from a mediation launched by the private will of the parties, which itself requires their agreement to meet and discuss their disputes.
Arbitration is the most commonly used formal ADR process. An arbitrator, unlike a mediator, is typically given the power to decide the dispute. The process is more trial-like than mediation but still less so than a traditional trial. The smart, prepared lawyer, in handling an arbitration, will use the best skills of a trial lawyer when they are called on, and yet move fluidly among the ADR processes and goals with comfortable familiarity.
All of these ADR forms require that the lawyer involved is savvy, and ready with multiple skills, not the least of which is the readiness to use strong advocacy when needed. How best to learn the tools of the strongest persuasive skills? Some reflections on this answer are exchanged in this blog throughout January – stay tuned and join the conversation.
Upcoming posts on this topic will include:
- Part 2 – Mediation and endless curiosity
- Part 3 – Negotiation and the insecurities over losing control
- Part 4 – Arbitration and the art of witness examination
- Part 5 – The ADR practitioner and the trial skill set
You can comment below or join in the conversation on today’s topic in the NITA LinkedIn Group. And be sure to check back every Wednesday to follow the ongoing conversation!
Opportunity: send us your idea of topics for a future monthly bog series!
Opportunity: let us know if you are interested in posting as a Guest Writer!