October 2007
SO YOU WANT TO HAVE A MEDIATION OR ARBITRATION PRACTICE.
BY HOWARD ROITMAN, ESQ.
Almost every attorney I know wants to get into mediation and arbitration, but it must be approached like any other business proposition. You can’t just hang a sign on the door and say “I am in the ADR business.” This kind of matriculation results in the graduate going broke pretty quickly! First, you need to learn about the business and how it is being operated by other professionals.1
The upside of the business is that when an arbitration or mediation is over, it’s over. As a neutral party you get paid and move on to the next case-- none of the “Chinese water torture” that comes from litigating, no discovery headaches, no listening to clients complaining, and no fighting about fees. The downside, of course, is the difficulty of converting the business into a livable income.
As with any other legal specialty, starting an ADR practice takes clients. Without a doubt, the best source of business is other lawyers. That’s right: your friends and colleagues. Start by telling everybody you know that you are available to arbitrate and mediate cases for them and others. If you can get people out of litigation hell-- and this means actually settling their cases-- they will send you work. It is as important to cast your net wide as it is to develop the contacts you already have.
It is a fundamental tenet of selling that you will not get any business unless you ask for it. Be aggressive. The worst a prospective client can do is say “no.” Talk to people at social gatherings, write articles, appear at seminars, and let the world know that you can solve problems. However, make sure you are capable of handling the work when it comes your way. If you get cases and you don’t resolve them, you are on your way to both embarrassment and a burning of your relationships.
It’s also fundamental to participate on panels which refer work. Some are better and more prestigious than others, and it is more difficult to become a part of some of them than others. Ultimately, your reputation, credentials and experience are the things which will get you onto a panel. Here are some leads to help you get started:
The American Bar Association (ABA) section on dispute resolution has dozens of committees to help you develop new contacts and build your ADR practice.2 Listed below, in no particular order, are 10 of them:
ADA Advocacy and Litigation Practice Committee: This committee is designed to get you started in ADR. It helps individuals develop skills as arbitrators, mediators, private judges or neutral parties.
ADR in the Construction: This is the place to go if you are interested in constructions.
ADR And The Family Function: Deals with domestic issues.
Corporate ADR: This is a forum for sharing information and networking among lawyers and neutrals for major corporations.
Entertainment ADR
Environmental And Natural Resources: A key issue for many in our state.
Healthcare in ADR: There are lots of issues, like patient billing, among doctors, hospitals, and service providers.
International: This is the place to learn something about the general agreement on tariff and trade, the North American Free Trade Agreement and other international arenas that utilize ADR.
Negotiations: This committee will help you improve your mediations; it examines the theory of negotiation in order to get better results from mediating.
Practice Development: A source for information about marketing, business development and networking.
The American Arbitration Association (AAA) is the granddaddy of all ADR organizations. AAA is over 75 years old and the genesis of almost everything in alternate dispute resolution. AAA handles elections, arbitration, class actions and mediations. AAA has 34 offices nationwide (including one in Las Vegas) and has over 8,000 neutrals. In 2004 it handled 34,000 cases.
In the ADR business contacts are everything. According to the AAA website,3 "neutrals nominated to the national roster of arbitrators and mediators of the American Arbitrations Associations are leaders in their industry or profession." In other words, your contacts can get you on the panel. Find out who is using AAA, and see if they will nominate you. Once you make yourself known, people will start asking for you. If you are requested it's likely that you'll be made available. This is really worth doing. While AAA isn’t the sole provider of big-time ADR, it still works for most major corporations, unions, government agencies, gigantic law firms, and federal government programs.
Health law is probably the fastest growing area of the law. In 1992 the American Health Lawyers Association (AHLA) created its fee dispute resolution services. AHLA neutrals offer expertise in trained dispute resolution services in areas such as medical malpractice, business disputes between and among physicians, hospitals, insurance companies, health management organizations and others in the healthcare field. (This author has even seen an AHLA dispute provision in a cab company contract).
AHLA holds a seemingly endless series of courses, seminars and training programs to educate people on the process of health care arbitrations. These programs review every element of arbitrations and mediations. The application for membership on the AHLA panel can be found at the AHLA website. 4
Commercial Arbitration and Mediation Center of the Americas
Commercial Arbitration and Mediation Center of the Americas (CAMCA) is an international commercial arbitration organization.5 CAMCA was created by the four key players in the North American Free Trade Agreement in 1995. It is designed to facilitate disputes among international businesses in the NAFTA arena.
The NAFTA agreement specifically tries to resolve disputes through ADR. International businesses working in a foreign country often do not trust the local courts. Even when the courts are good, a judgment issued abroad may not be readily enforceable at home. And, of course, there are the delays and difficulties of international litigation. ADR sidesteps all of this: Las Vegas has an international trade zone and the United States is a foreign country to lots of people.
Appointment to CAMCA is by invitation only, and "international experience, integrity, superior dispute resolution skills and acceptability of the corporations involved” is required if one is to be appointed to this list. The CAMCA works with the American Arbitration Association and other international arbitration institutions to determine who is chosen for this panel, so don’t forget the AAA. Large industrial and commercial issues are being resolved by this organization on a regular basis.
The Chartered Institute of Arbitrators
The Chartered Institute of Arbitrators (CIA) is almost 90 years old and is the grand dame of international ADR.6 The CIA is based in Britain and has over ten thousand neutrals from about 90 countries. There are offices in 30 locations throughout the world.
The CIA provides educational programs and courses for neutrals, party representatives and academics. It also provides lists of ADR neutrals and programs designed for dispute resolution.
CIA fellowship is the “gold standard” for international ADR practitioners. Fellowship is the highest level one can attain in the CIA. One advances from candidate to fellow through experience and testing. The testing is rigorous, but it is a transparent process. One can apply to and advance within the CIA without being a member of an “old-boy” network. Make no mistake about it-- among the international arbitration community and the major commercial arbitration community in the United States, fellowship in the CIA is one of the highest recommendations one can have as an arbitrator.
JAMS
Everyone has heard of the Judicial Arbitration Mediation Service (JAMS).7 It’s one of the high-flyers in the ADR world. JAMS has been around for about 25 years and is beginning to grow into one of the titans in the field. It is not easy to join the JAMS panel-- you must commit full time to taking only JAMS cases. If you are willing to do this, you are probably already in high demand and very good at ADR.
Most JAMS panelists are retired judges, although some are attorneys who are renowned ADR professionals. JAMS is noted for its work in providing non-traditional ADR methods including: mediated processes, facilitated mediation, evaluated mediation, neutral evaluation, settlement conferences, mini trials, summary jury trials, non-binding arbitration, neutral expert fact-finding, and baseball arbitration.
The National Franchise Mediation Program
NFMP is about 10 years old, and does just what its name suggests: it arranges dispute resolution between and among franchisers and franchisees.8 The NMFP program is designed to deal with financial disputes over royalty agreements, franchise rights, franchise territories, renewal issues and customer complaints. Signatories to an NFMP dispute resolution clause are required to engage in formal negotiations and mediations as a prerequisite to any further action. Most recent franchise agreements generated by large franchisers have a NFMP dispute resolution clause. There are scads of franchises operating in Las Vegas, so someday this will generate a lot of work. NFMP mediation is generally administered by the CPR Institute, an administrative unit of JAMS (you do not need to be on the JAMS panel to be on the NFMP panel).
The New York Stock Exchange
The New York Stock Exchange (NYSE) ADR program resolves disputes between individual brokerage customers and between and among stock exchange members. A financial background helps but isn’t required.
The application for panel membership is not very complicated and can be found at the New York Stock Exchange website. 9 Fees paid to panelists are modest and are set by the NYSE. If you are trying to establish a broad-based ADR practice, membership on one of the New York Stock Exchange Panels is a good place to start. It’s well recognized, has interesting cases, and membership is not restricted to referrals.
Information about federal agency ADR programs in general can be found at the ADR website.10 It contains links to federal government agency and ADR programs, speeches, congressional testimony, federal agency ADR surveys, federal agency ADR contacts, OMB acquisitions and ADR award programs, ADR resource guides and a seemingly endless array of other ADR materials.
The USPS REDRESS®11 program is designed to resolve employment dispute between the U.S. Postal Service and its employees. The panel is drawn from independent outside mediators. The following qualifications are required to join: completion of a 24-hour mediation course; completion of the Postal Service-certified training program; ten mediations as lead or co-mediator; one pro bono mediation for the postal service with a positive evaluation by the postal service; and a qualified general evaluation as a mediator. The Postal Service will conflict out any mediator who represents people with administrative disputes or litigation with the USPS.
Compensation is a flat fee for each mediation, so whether it takes 10 minutes or 10 hours to solve the problem, the pay is the same. This is an incentive for efficiency. “Have dispute, will travel” seems to be the philosophy with REDRESS. Mediators are dispatched to the location of disputes as they are called in. Mediators are expected to deal with their assigned disputes the day the dispute occurs. REDRESS is designed for real-time dispute resolution without resorting to discovery, legal process or extended case development.
The literature reports that REDRESS is an enormously successful program and it seems to be an excellent way to get your foot in the door with federal government ADR. Prior experience with federal agency mediation or arbitration is not required, unlike with most other federal agencies. Watch the USPS website to find times when there are openings on the redress panel in order to make your application.
The Environment Protection Agency (EPA) uses the National Roster of Environmental Dispute Resolution and Consensus Building Professionals to refer ADR professionals to agencies and disputants. The program is designed to address disputes concerning environmental issues, natural resources, public lands and cases involving federal agencies. Congress ordered the creation of this process in 1998 and the NREDP has been around since 2000. The NREDP roster is divided into several subsidiary lists: facilitators, mediators, consensus builders, disputes system designers, neutral evaluators, settlement judges and conflict assessors.
The EPA regularly conducts nationwide searches to recruit practitioners with the appropriate credentials to join the panel. To be considered for membership on the roster, one can file an application on the Internet.12 Parties choose their own neutral from the roster. While there is no guarantee that being on the roster will result in being chosen, it certainly boosts your credentials. If environmental law is your area, this provides both credibility and potential for government contacts.
The Equal Opportunity Employment Commission (EEOC) administers an employment ADR program called “Resolve.”13 Resolve provides mediation as an alternative to traditional grievance procedures. The Resolve program is run by the EEOC Chief Mediation Officer, who is responsible for creating and recruiting a list of qualified mediators from the Alliance for Education and the Interagency Alternative Dispute Resolution Working Group. Applications can be made through these organizations. Specialized expertise in government employment is also useful.
General ADR information on the Internet
Mediate.com and ADRWorld.com (a subsidiary of the American Arbitration Association) advertise themselves as web sites that provide continuous and accurate information on the goings-on in all areas of arbitration and mediation and in all of the dispute resolution areas. They provide surveys and federal government information, court decision statutes, primary documents and academic commentary for all 50 states. They cover labor, employment, securities, healthcare, intellectual property, and public policy.
Howard Roitman is a Las Vegas attorney practicing mediation, arbitration, estate planning and selected litigation.
[1] The best overview of ADR courses that I have seen is available for the Federal ADR network, prepared by Deborah S. Lauffer, Esq. at www.lawmemo.com/arb/res/ard.htm
2 www.abnet.org/dispute/home.html
3 www.adr.org
4 www.healthlawyers.org
5 www.sice.org/dispute/comarb_e.asp
6 www.arbitrators.org/
7 www.Jamsadr.com/
8 www.franchisemediation.org/
9 www.nyse.com/arbitration
10 www.adr.gov
11 www.usps.com/redress
12 www.ecr.gov/roster.htm
13 www.eeoc.gov/federal/adr/index.html