Mediation and Arbitration in Real Estate Mediation and Arbitration in - - PowerPoint PPT Presentation

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Mediation and Arbitration in Real Estate Mediation and Arbitration in - - PowerPoint PPT Presentation

Sep 21, 2023 278 likes •563 views

Presenting a live 90 minute webinar with interactive Q&A Mediation and Arbitration in Real Estate Mediation and Arbitration in Real Estate and Construction Disputes Leveraging Alternative Dispute Resolution to Achieve Favorable Outcomes

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Presenting a live 90‐minute webinar with interactive Q&A

Mediation and Arbitration in Real Estate Mediation and Arbitration in Real Estate and Construction Disputes

Leveraging Alternative Dispute Resolution to Achieve Favorable Outcomes

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNES DAY, APRIL 6, 2011

Today’s faculty features: Adrian L. Bastianelli, III, Partner, Peckar & Abramson, Washington, D.C. Michelle M. Leetham, Of Counsel, Ogletree Deakins, S an Francisco Paul M. Lurie, Partner, Schiff Hardin, Chicago

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Mediation and Arbitration in Real Estate and Mediation and Arbitration in Real Estate and Construction Disputes

Adrian L. Bastianelli IV Michelle M. Leetham P l M L i Paul M. Lurie

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Importance of including mediation and/or arbitration in pre‐dispute commercial real arbitration in pre‐dispute commercial real estate and construction agreements

Need for consistent treatment across all l d related contracts

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Is mediation a waste of time?

  • Is it a sign of weakness in subsequent negotiations?
  • Ratify agreement to mediate
  • Learn strengths and weaknesses
  • Learn strengths and weaknesses
  • Lack of good faith
  • Create settlement environment

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Why mediation fails?

  • What is failure?
  • Lack of mediator diagnosis
  • Lack of appropriate design
  • Lack of decision makers participation
  • Lack of risk related information (too early)
  • Emotional reasons
  • Emotional reasons
  • Bad predictions: lawyers and experts
  • Gender and ethnic differences

l d

  • Client expectations not anticipated
  • The wrong mediator?

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Appropriate Design Considerations

  • Mediator interviews
  • Public session?
  • Briefs and for whom
  • Briefs and for whom
  • Get experts into collaborative mode
  • Time-long days?
  • Place: comfort of surroundings

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How important is the mediator?

  • Parties trust the mediator
  • S

ubj ect matter knowledge

  • Knowledge of mediator in negotiation psychology
  • Knowledge of mediator in negotiation psychology
  • Prepared mediator
  • Creative mediator-Getting to Y

es

  • Hard working mediator

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Overcoming impasse

  • Avoid terminating the mediation
  • Adj ourn to exchange more information
  • Empower decision makers
  • Guided Choice Arbitration
  • Framing: avoid loss
  • Apology
  • Apology
  • Mediator evaluations
  • Mediator proposal

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What am I looking for in selecting h di ? the mediator?

  • Mediator track record v. resume
  • Facilitative v. evaluative mediator
  • Trusted by other party
  • Ability to persuade
  • Optimistic
  • Hard worker
  • Do I want a retired j udge?
  • Cost

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Where to find the right mediator

  • “ Does anyone know a good mediator?

”

  • Agencies: AAA, CPR, JAMS

, Locals

  • Court programs?
  • Court programs?
  • Interviews

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Mediation Agreements

  • Disclosures-related to trust
  • Pre-dispute agreement should not include a lot of process detail
  • Incorporation of rules e g AAA
  • Incorporation of rules e.g. AAA
  • Understanding of relevancy of statutes e.g. UMA
  • Confidentiality e.g. California
  • Consolidation

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How do I get the best result?

  • Defining the “ best result”
  • Preparation
  • Bringing the right people

g g g p p

  • Understand your BATNA
  • Manage expectations

P ti d i t

  • Patience and persistence
  • Use the mediator
  • Understand the mediator’s tactics
  • What kind of negotiator gets the best results?

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Settlement Agreements

  • Never leave without one
  • Advocates prepare not mediator
  • Advocates prepare not mediator
  • Consider having each party prepare a settlement agreement before

they come to the mediation

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Arbitration

  • Unlikely if not in pre-dispute agreement

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Arbitration Clauses‐Scope

  • Avoid potential ambiguities
  • Limit on dollar amounts
  • Limit on type of dispute
  • Limit on type of dispute
  • F

AA: enforce in court of competent j urisdiction

  • Included in all proj ect contracts
  • Consolidation and j oinder
  • Naming of arbitrators in contract

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Arbitration –Administration or not

  • Anticipate selection disagreement
  • Anticipate arbitrator vacancy
  • Anticipate need for removal to protect award
  • Anticipate need for removal to protect award
  • Who handles the money?
  • Compare party appointed aka tri-partite aka ad hoc either

administered or not.

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Arbitration Rules

  • Use even if not administered
  • Expedited Rules: AAA, CPR and JAMS

.

  • Number of arbitrators
  • AAA Large Complex Rules v. S

tandard v. Expedited.

  • S

ite of arbitration Ch i f l b t ti d d l F AA RUAA

  • Choice of law: substantive and procedural e.g F

AA, RUAA

  • Avoid Federal Rules of Civil Procedure

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Selecting the arbitrator

  • AAA, ICDR, JAMS

, and CPR panels

  • Party appointed
  • Ability to manage proceeding
  • Ability to manage proceeding
  • How do I find out about an arbitrators tendencies?

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Arbitration Cost Control

  • Is there a cost problem with arbitration?
  • What can be done to overcome it?
  • S

ee College of Commercial Arbitrators Protocols www thecca net

  • S

ee College of Commercial Arbitrators Protocols www.thecca.net

  • Customization
  • Guided Choice Arbitration with mediator facilitation
  • S

electing counsel and arbitrators who are dedicated to a cost effective proceeding

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Discovery

  • Balance cost, time, and need
  • Documents
  • Depositions
  • Depositions

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H d I d h f di ? How do I reduce the cost of e‐discovery?

  • S

ee protocols of AAA (ICDR), JAMS , Int’ t Bar Assn. Chartered Inst, ICC

  • Early meet and confer sessions
  • Limit disclosure by date, timekeeper, and accessibility
  • Requirement that party requesting metadata demonstrate the

need for information outweighs expense and burden

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Cost savings in the hearings

  • The chess clock
  • Prefiled testimony
  • Proffers and stipulations
  • Proffers and stipulations
  • Expert panels

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What is the key to an effective i ? presentation?

  • Know the arbitrators
  • Limit the presentation to key documents and issues
  • What is effective cross examination?
  • What is effective cross examination?
  • S

elect experts who the arbitrators will respect

  • Prove your damages
  • Do I want a prehearing or post hearing brief?

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Avoiding Vacatur of Award

  • Arbitrator disclosures
  • Use F

AA j urisprudence

  • Reasoned awards
  • Reasoned awards
  • Electronic transcripts. Courtroom Connect, LiveNotes

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Speaker Information

Adrian L Bastianelli IV Adrian L. Bastianelli IV 202.293.8815 ext. 7118 abastianelli@pecklaw.com Michelle M. Leetham 415.536.3445 i h ll l th @ l t d ki michelle.leetham@ogletreedeakins.com Paul M. Lurie 312.258.5660 plurie@schiffhardin.com

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