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Sound Advice

This Case Can’t Be Settled
By Eric English and Frank Bedell – March 16, 2022
This program discusses the negotiation approaches that settlement counsel employ to resolve the "cases that can't be settled."  Referencing similar approaches suggested by former Secretary of State, James Baker, the program focus on six keys to "closing the deal." (15:01 min)

Don't "Reflexively" Reject the Joint Session in Mediation
By Frederick Alimonti – February 24, 2022
It has been increasingly common to bypass the mediation joint session and proceed directly to Caucus. Mediator Rick Alimonti shares some thoughts on "thinking twice" before taking the express to caucus and shares his views on the benefits of the joint session—even in the most emotional cases. (4:13 min)

My Top Three Pre-Mediation Topics
By Rick Alimonti – February 8, 2022
Mediator Rick Alimonti shares his "Top Three" issues to cover with your mediator before the mediation [even if the Mediator never asks]. (3:48 min)

How to Become a Neutral Part II
By Brain Farkas and Theo Chang – July 21, 2020
In this series on "How to Become a Neutral," the ABA Section of Litigation's Alternative Dispute Resolution Committee will intervie;w leading mediators and arbitrators about their career paths and offer guidance to those considering roles as neutrals. In this episode, Brian Farkas (Arent Fox LLP) talks with Theo Chang (ADR Office of Theo Cheng). (22:58 min)

How to Become a Neutral: A Conversation with Edna Sussman
By Edna Sussman and Brain Farkas – July 3, 2020
In this series on "How to Become a Neutral," the ABA Section of Litigation's Alternative Dispute Resolution Committee will interview leading mediators and arbitrators about their career paths and offer guidance to those considering roles as neutrals. In this episode, Brian Farkas (Arent Fox LLP) talks with Edna Sussman (Susman ADR, LLC). (21:17 min)

Understanding the Role of Settlement Counsel
By Eric English, Frank Bedell, and Pat O'Malley – February 14, 2020
In this Sound Advice, Eric English, Frank Bedell, and Pat O'Malley, settlement counsel will discuss the role of settlement counsel, how it works, and explore some of the mis-perceptions about settlement counsel. (11:30 min)

Selecting the Right Commercial Arbitrator
By Neal Eiseman – December 31, 2019
The notion that you can select the person who will decide your client's fate in arbitration is powerful and not to be taken lightly. In this Sound Advice, Neal Eiseman gives tips on what to consider and how best to make that selection. (5:39 min)

The Importance of Timing in Mediations
By Rick Mahrle – December 13, 2019
In this Sound Advice, Rick Mahrle discusses using the right timing to schedule a mediation, and then getting the timing right during the mediation. (11:51 min)

Preparing For Your First Arbitration Pre-Hearing
By Joan Stearns Johnsen
Arbitration advocacy is the same as litigation advocacy and completely different. The Pre-Hearing Conference is the first opportunity to interact with your panel. Here are some tips so that even if it is your first arbitration pre-hearing conference, the panel will not know it. (3:24 min)

Should You Take Discovery Before Mediating?
By Joan Stearns Johnsen
How much is enough? The earlier you mediate the greater the savings for your client. How can you take just enough so your settlement is rational and your client is happy. (2:35 min)

Becoming a Dispute Resolution Counselor for Your Client's Business Agreements
By Conna Weiner
This Sound Advice will provide valuable tips for how to use ADR skills to resolve disputes in business agreements.

Introducing the Equal Representation in Arbitration Pledge
By Harout J. Samra and Noiana Marigo
The Equal Representation in Arbitration Pledge is an unprecedented movement directed at improving diversity among arbitrator appointments that has taken the arbitration world by fire. In addition to the ABA's Sections of Litigation and Dispute Resolution, hundreds of organizations around the world have signed. This Sound Advice podcast will explore what the Pledge is, how it came into being, and how you can be a part of it. (09:21 min)

Integral Part Exception and Compelling Arbitration
By Stuart M. Boyarsky
Boyarsky talks on the integral part exception to section 5 of the FAA, including a discussion of the December 2015 cert petition in Golden Living Center v. Wert. (9:22 min)

Expected Impact of the Trans-Pacific Partnership
By Harout Samra
Listen as Harout Samra discusses the recent and surprising developments with regard to the T.T.P. and the sweeping changes in how investors state disputes are going to be resolved. (7:34 min)

Opportunities Through Paradoxes
By Bernie Mayer
Too often people view conflict as an either-or proposition. Professor and author Bernie Mayer describes seven key polarities that can all lead to conflict resolution—not simply a "winner" and a "loser." (11:24 min)

Jury Verdict Surveys
Longtime litigator and expert witness Bruce Rubin shares why using survey results of comparable settlement cases is not always the best way to determine the numbers.

Arbitration and Mediation in Securities and Commodities Cases
As fewer cases go to trial, more lawyers are developing their skills of ADR.  Louis Burke explains how securities and commodition

Unilateral Arbitration Provisions
Though arbitration agreements are now fairly common, unilateral arbitration provisions are not.  Listen to Neal Eiseman explain the difference and how, if possible, to obtain an unilateral arbitration agreement for your clients.

Arbitration Panels: Choose Wisely!
Bound to arbitrate?  Before you begin, listen to Rob Remington, 22 year veteran of numerous arbitrations and mediations, and a partner at the Cleveland firm of Hahn Loeser and Parks, LLP, review the risks and benefits of sole vs. panel arbitrations, the value of expanded arbitrator discovery, and the strict rules for arbitration appeals.

Lawyering with Planned Early Negotiations
Hear law professor and author John Lande outline the advantages of working closely with opposing counsel––before and during a trial.  Despite attorney fears of appearing weak this type of strategy often serves both the attorneys and their clients. (11:28 min) 

Settlement Counsel—It Just Makes Sense
Hear Eric English and Paul Genender as they describe the use of settlement counsel during trials.  Although they are not always needed, hiring settlement counsel can make life easier for the trial counsel and may help your client achieve their desired outcome. (11:28 min)

Timing Discovery and Motion Practice to Make Mediation Work
It is said that timing is everything. Matthew Bakota outlines how that is especially true as you prepare a mediation.

Improve the Outcome of Your Next Arbitration
Increase the likelihood of a positive outcome to your next arbitration by listening to former Chair of the ABA Section of Litigation, Louise LaMothe, a practicing arbitrator and mediator in Santa Barbara, California, as she highlights key differences between litigation and arbitration.

Challenges of Entering the Field of International Arbitrations
Hear Harout Samra of DLA Piper as he shares how life changes when moving from working on litigation to international arbitration. Is it better or worse? Hear some of the differences, and decide for yourself. (8:45 min)

Keeping Your Cool with Difficult Adversaries
Facing a difficult and unprofessional adversary?  Don’t lose your cool!  Listen as Paulette Brown, partner at Edwards Angell Palmer & Dodge LLP in Madison, New Jersey, and seasoned employment and labor law attorney gives practical advice for how to remain in control and professional when those around you are not!

United States Supreme Court 2010 Round-up: 5 New Cases Concerning Federal Practice
Hear New York attorney Greg Joseph, an expert in Federal Practice, analyze five decisions issued in 2010 by the United States Supreme Court concerning Federal Practice, including issues regarding:  arbitration clauses:  Rent-a-Center West, Inc. v. Jackson and Stolt-Nielsen, S.A. v.  Animal Feeds Int’l Corp.; statutes of limitations:Merck & Co. v. Reynolds; Federal Rule of Civil Procedure 15c(1)C)(ii)’s relation back doctrine:  Krupski v. Costa Croiere, S.p.A.; and  the determination of corporate citizenship for purposes of establishing federal diversity jurisdiction: Hertz Corp. v. Friend.

Mediation Opening Statements: Strategies for Success
As more and more cases go to mediation, your client’s success depends on your ability to perform in a setting that is distinctly different from the courtroom.  Listen to Lorna Schofield, Chair of the ABA Section of Litigation, who has both served as a Mediator in the Southern District of New York, and who has represented clients in mediation, as she advises on whether and how to give an opening statement in the mediation of a matter.  Chair Schofield addresses the differences between opening statements at trial and in mediation settings, emphasizing how to make the most of the mediation opportunity. 

Powerful Speech
JoAnne A. Epps
Temple University Beasley School of Law
Philadelphia, PA

Secrets of Opening Statements
Paul Mark Sandler
Shapiro Sher Guinot & Sandler
Baltimore, MD

Psychology for Lawyers
Authors Jean Sternlight and Jennifer Robbennolt explain how, through various psychology techniques, you can become a more successful attorney and negotiator.

_Disclaimer:

_{The information on “Sound Advice” is for discussion purposes only and does not reflect the opinions of the ABA. The information is not legal advice nor a substitute for legal counsel.}

Roundtables

Everything You Wanted to Know About Arbitration (But Were Afraid to Ask): Final Hearing and Post-Hearing Matters—Part 4
Hear from a panel of experts as they provide essentials for your Final Hearing Toolkit so you can succeed in your final hearing. Topics will include preparing for the final hearing, evidentiary matters, post-arbitration briefing and Final Awards. (58:16 min)

Save Your Clients Money: Advice from the Arbitration Providers
Hear from those most familiar with their organization's rules and procedures about less well-known ways you can streamline your arbitrations and save your clients money. There are those who believe arbitration is too expensive, but are you taking advantage of innovations and strategies that the administrators have added to help you streamline your arbitral process? What can litigators (and those drafting contracts) you before and during arbitration to shorten reduce fees costs? Hear from the experts on practical tips and both time and cost-saving opportunities. (1:00:52 hr)

Highlights of the September 1, 2022 Changes to the American Arbitration Association Commercial Arbitration Rules
On September 1, 2022, the American Arbitration Association adopted changes to its commercial arbitration rules. These changes will likely impact your arbitration practice in significant ways. Among other changes, the AAA has adopted its first ever commercial rule for the consolidation of existing arbitrations or the joinder of additional parties, strengthened its confidentiality provisions, as well as expanded the authority of arbitrators to determine the method of proceedings. Please join us for a discussion of these rules and their implications for your practice. (58:36 min)

Practice Tips for Litigators Following the Supreme Court's Decision in ZF Automotive v. Luxshare (142 S.Ct. 2078 (2022)
In June of 2022, the Supreme Court held that only a governmental or intergovernmental adjudicative body constitutes a "foreign or international tribunal" under Section 1782. While this ruling resolves a circuit split in the US, is the matter now over? What do litigators need to know about possible defenses and workarounds? Should there be any modifications to arbitration clauses given the unavailability of Section 1782, and what are the differences between international commercial arbitrations, ad hoc arbitrations, and ICSID arbitrations going forward? Join us to learn important practice tips on adapting your arbitration practice. (58:50 min)

Beyond the Basics: Using Mediation More Effectively to Resolve Disputes Earlier
Mediation has been part of most civil cases for the past 30 years. However, in some cases, parties and attorneys treat mediation as simply a box to be checked on the way to court or arbitration. Traditional mediation practice is that the parties exchange mediation statements a few days before the mediation session. The mediator has little or no contact with the parties or attorneys before the mediation session. The parties show up for a one or two-day session and attempt to settle. Often, at the mediation session, the parties and mediator learn that additional information about damages, insurance coverage, or other topics is needed to allow settlement. The mediation is impassed or postponed until later. Such mediations are expensive and often disappointing to parties. A survey of 300 construction lawyers provides insights into making mediation more effective in resolving disputes quickly while maintaining relationships by engaging the mediator earlier in the process so the mediator can discuss potential roadblocks to settlement with the parties before the mediation session. Then, the mediator can assist the parties in exchanging necessary information. Even if the parties are in litigation or arbitration, using a mediated case management agreement can assist in focusing and managing discovery, leading to quicker case resolution either through settlement or trial. This panel of experienced trial attorneys and mediators describes methods and techniques for using mediation more effectively. (57:12 min)

Behind the Headlines: Leggett et al v. Wells Fargo, Vacating a FINRA Arbitration Award
A Georgia state court recently granted a motion to vacate a FINRA arbitration award. While motions to vacate are infrequently granted, this judge overturned the arbitration award on multiple grounds, finding (i) the arbitrator selection process violated the FAA, section 10(a)(4); (ii) the arbitrators’ refusal to postpone the hearing violated the FAA, section 10(a)(3); (III) the arbitrators’ refusal to hear relevant, non-cumulative evidence violated the FAA, section 10(a)(3); (iv) the award was procured by fraud in violation of the FAA, section 10(a)(1); and (v) the arbitrators violated the FAA, section 10(a)(3) by imposing costs and hearing session fees against the investors. Our speakers will break the award down, discussing the court’s reasoning for each ground upon which it vacated the award. (59:16 min)

Mass Arbitration Filings: How Are Arbitral Institutions Handling Them?
The mass filing of multiple individual arbitration demands—as a work around to class action waivers in employment and consumer contracts—has become a hot topic in the wake of Abernathy v. DoorDash, 438 F. Supp. 3d 1062 (N.D. Calif. 2020). Our panel, including representatives from the American Arbitration Association, JAMS, and CPR, will discuss how arbitral institutions are handling the issue and what the future may hold for this practice. (58:45 min)

Virtual ADR is the Reality: Share What You've Learned, Learn What You Need
Covid-19 kicked off a revolution in virtual mediation and arbitration that won’t stop soon and in many ways is here to stay. The Section of Litigation’s ADR and Commercial and Business Litigation Committees want to help practitioners share best practices and learn from each other. Join mediator Jeff Kichaven, arbitrator and mediator Conna Weiner, and litigator, arbitrator and mediator Marc Zucker as they co-host a bi-monthly series of Zoom roundtables with related Section of Litigation Committees to help you get up to speed and learn from your colleagues. Our conversations will focus on both general and area-specific challenges and questions. (1:01:35 hr)

The CASE Act: What You Need to Know About the New Copyright Small Claims Board
The Copyright Alternative Small-Claims Enforcement Act (CASE Act) creates a new tribunal: the Copyright Claims Board. The Board will be housed inside the Copyright Office with three appointed officers presiding over copyright disputes, and should start hearing claims by December 27, 2021. This new process may help resolve relatively small copyright disputes in an efficient manner. However, as of now the exact workings of the Board and its usefulness are open questions. This presentation will answer some questions and raise more about: how the Board will operate; what authority the Board has to award damages and other relief; and whether the Board is even constitutionally permissible. (1:25:06 hr)

Mediation: In the Land of Zoom
Virtual Mediation: What are the overall trends and conditions. Also, what remains the same and how has video conferencing with the lack of physical presence changed the process. (1:00:44 hr)

A Practitioner's Guide to Running a Zoom Arbitration
Social distancing is the new reality, and that means more arbitration hearings are going virtual. Sure, we all know how to host a casual Zoom conference with a client, colleagues, or friends, but how do you run an entire hearing—with multiple parties, witnesses, and exhibits—remotely? Our panel of experts will walk you through a demonstration (using Zoom, of course) and give you practical tips for running a Zoom hearing smoothly and efficiently, including how to: control participants; manage breakout rooms; handle witness; manage exhibits and demonstratives, including witness annotations and creating new exhibits on the fly; use of multiple screens; security; and other helpful tips. (55:22 min)

New Techniques in AI that Save Your Clients Time and Money
Keyword search, the most widely used method of e-discovery, has built in flaws and weaknesses. It’s cumbersome, imprecise, expensive—and limited. New, more robust machine learning allows parties to power through document collection with incredible speed, efficiency, and validity saving your clients time and money. This program will introduce you to the newest technologies as well as how to employ these technologies early and effectively. (58:34 min)

How to Teach Your Arbitrator
By Harold Coleman Jr and Joan Stearns Johnsen
How should you present your case to your arbitrator or arbitration panel? Will you reach them best by using demonstrative exhibits or with a riveting opening or closing? Should you use a different approach? The latest research has identified differences in our brains, which influence how we process information and learn. We explore this research and provide practical tips to account for the way different people absorb and process information cognitively. (1:00:13 min.)

How to Work with an Expert in Mediation: Practice Tips from the Mediator, Expert, and Lawyer
By Alternative Dispute Resolution and Securities Litigation Committees
We know that in complex commercial litigation choosing the correct expert is an essential step in putting your case together. What happens when you mediate the resolution of your case? Under what circumstances should you bring your expert to the mediation? This practical Roundtable will explore the various ways of using your expert in connection with mediating the settlement of your case. Join us for a lively discussion between seasoned litigators, an expert and a mediator on this important issue. (56:25 min)