Announcements & ADR News
BEST LAWYERS 2020 PHOENIX MEDIATOR OF THE YEAR
Sherman has been named Phoenix Mediator of the Year by Best Lawyers in America for the second time in the past four years. In addition to those two designations, he was selected Phoenix Arbitration Lawyer of the Year in both 2016 and 2018.
AMERICAN COLLEGE OF CIVIL TRIAL MEDIATORS
Sherman has been inducted as a Fellow in the American College of Civil Trial Mediators
Sherman is often asked questions about mediation, arbitration and facilitation. He has assembled some of the most frequently asked questions and a composite of his answers over the years, and they are provided on the links below.
Frequently Asked Questions about Arbitration
Arbitration is a process in which the parties voluntarily consent to submit their dispute to an impartial third party or panel of third parties chosen by them, instead of going to court. Arbitration is intended to be faster and less expensive than court litigation, with the decision of the arbitrator or arbitrators being a final and binding resolution of the dispute.
No. Arbitration, like litigation, is an adversarial contest in which the parties testify and introduce evidence similar to a trial, and in which the arbitrators, like judges, are empowered to decide the dispute and render a final and enforceable decision. Mediation, on the other hand, is a collaborative process in which the parties are empowered to negotiate and agree upon their own solutions to their own problems with the help of the third party mediator, who facilitates the negotiations, but has no power to decide the dispute or impose a decision on the parties.
The three traditional reasons to choose arbitration over litigation are speed, reduced cost and finality. These benefits are obtained, in part, by reducing costly and time consuming pre-hearing discovery and motion practice; by not literally following the state or federal rules of civil procedure or evidence; and by the severe limitations on the grounds for appeal imposed by state and federal arbitration statutes. In addition to the benefits of speed, reduced cost and finality, there are many other reasons why arbitration may be preferable to litigation, such as the ability to select the decision makers, rather than submitting the dispute to randomly assigned judges and to make the process less formal, more private and confidential. For a more in depth discussion of the differences between private arbitration and court litigation, look at Sherman’s article on Mediation and Arbitration: Alternatives to Litigation and Ways to Manage Conflict, particularly pages 15 through 25. To read the article, click here or go to the “Articles” page of this website and click on the article.
Yes and no. Historically, arbitration began as an industry dispute resolution mechanism in which the arbitrators were generally industry representatives, not lawyers, and disputes were resolved by the application of the customs and usages of the particular industry and the reasonable expectations of the parties, not the literal application of law. Today, arbitration has virtually become a substitute for litigation, and, particularly in commercial disputes, most parties are represented by lawyers and most arbitrators are lawyers. There is no doubt that lawyers have brought into the arbitration process the litigation practices that tend to make arbitration more like litigation, and therefore more expensive and subject to greater delay. This is neither necessary nor inevitable.
Arbitration is based upon the voluntary consent of the parties. As a result, subject to certain statutory limitations, parties agreeing to arbitrate can define the procedural rules governing the process to insure a speedier, less expensive and final resolution, if that is what they desire. On the other hand, if they are less concerned with speed or cost and are choosing arbitration primarily for some of its other benefits (privacy, confidentiality, control over selection of the decision makers, avoidance of published opinions and precedents or finality), they can define the process to achieve those aims. It is this ability to customize the process to meet the particular objectives of the parties on a case by case basis that, more than anything else, distinguishes arbitration from litigation
Virtually any kind of dispute that is subject to resolution by a court can be arbitrated, provided all of the parties to the dispute knowingly and voluntarily agree to submit the dispute to arbitration.
The time required from submission of a dispute to arbitration to final determination is a function of the nature and size of the dispute and the wishes and agreements of the parties and their attorneys. It can be as little as 30 days or as much as several years. The goal of arbitration is to provide a process that is much quicker than going to court, and absent an agreement to the contrary among the parties, the arbitrator will try to manage the process to insure a speedy resolution. The parties, however, have the power to control that part of the process in their contractual agreements to arbitrate, by providing for reduced discovery, limited motion practice, and even a specific time limit for completion of the process. The arbitrator has experience in the ways to shorten the process while still insuring a full and fair hearing, and the parties and their attorneys should take advantage of that expertise by conferring with the arbitrator early in the process.
The arbitration process is more formal than a mediation, but generally far less formal than a court proceeding. The arbitration can be conducted anywhere that is convenient for the parties and the arbitrator. Often the arbitration takes place in a conference room at the office of the arbitrator, which the parties perceive as neutral territory, but sometimes at the offices of one of the parties or their attorneys. In some large arbitrations, particularly when there are out of town parties, attorneys, witnesses and/or arbitrators, the parties will arrange for hearing and breakout rooms in a hotel for the convenience of all of the participants.
Like the time required for arbitration, the cost is a function of many factors, such as the nature and size of the dispute, the actions and agreements of the parties and their attorneys regarding things like discovery, motion practice, length of hearing and form of final written award. The arbitrator will charge for both the time spent in the actual arbitration hearings, and study time in connection with things like discovery disputes, determination of motions, studying pre-hearing statements and legal briefs, and post-hearing study of hearing notes and transcripts, documentary evidence and drafting the final decision, called an award. Sherman charges $3,400 per day for the actual arbitration hearings, and $425.00 per hour for study time. Although arbitrators differ as to time spent on administering the case, as distinguished from time substantively devoted to the dispute, Sherman does not charge for the administration of the case. If your case is being administered by an arbitral association or provider like the American Arbitration association, they will have filing and administrative fees and you should review those fees with them. In most cases the arbitrator, like a judge, has the authority to assign or allocate some of the fees and costs of the process against a party or parties as a part of the final award.
Many contracts already have an agreement to arbitrate (the “arbitration clause”) which includes requirements for initiating an arbitration, and you should follow those requirements. Often, they will include the designation of an arbitral provider, like the American Arbitration Association, and, if so, you should obtain a copy of their rules and also read and follow those rules. In the absence of a specific arbitration clause or designated arbitral association, contact Sherman at (602) 264-3330 or fill out the contact information on the “Contact Sherman” page of this website. Sherman or his assistant will contact you promptly to discuss the arbitration, available dates, location, information for a conflict of interest check and contact information for all of the attorneys or unrepresented parties and other relevant information to initiate the process.
Many contract already have an agreement to arbitrate (the “arbitration clause”) which includes the method for selecting the arbitrator, and you should follow that method. Often, the arbitration clause will designate an arbitral provider, like the American Arbitration Association, and, if so, you should obtain a copy of their rules and also read and follow those rules regarding selection of the arbitrator. In the absence of a selection method in the arbitration clause or a designated arbitral association, contact Sherman at (602) 264-3330 or send him a message. Sherman or his assistant will contact you promptly to discuss the arbitration and the process for selecting the arbitrator.
Frequently Asked Questions about Mediation
Mediation is a process in which a specially trained impartial third party, who has no power to impose any decision upon the parties, helps the parties reach a mutually acceptable resolution of their dispute. It is a voluntary, confidential, and non-adversarial process in which the parties are empowered to make their own decisions. Although the parties are usually accompanied by their attorneys, the parties often speak for themselves and are encouraged to participate fully in the process. Instead of evidentiary type hearings, the parties discuss their wants, needs and interests with each other in joint meetings and with the mediator in private caucuses, all in an informal setting under the supervision and management of the mediator.
No. Mediation is not just another form of litigation or arbitration, but is a quantum leap to an entirely different paradigm for conflict resolution. Whereas litigation and arbitration are adversarial contests in which third parties are empowered to determine winners and losers, mediation is a collaborative process in which the parties are empowered to negotiate and agree upon their own solutions to their own problems with the help of the mediator.
A facilitative mediator believes mediation is a process in which the parties are the ones empowered to fashion their own solution to their own problem. The mediator is an impartial third party with no power who facilitates that process, without pressure, coercion or manipulation. A facilitative mediator is more inclined to help the parties change their mind set about the conflict; assist them in focusing on their real needs and interests as opposed to their legal positions; and aid them in developing and exploring various possible solutions and making informed decisions. Although the facilitative mediator may well have reached some preliminary evaluation of the dispute and use that evaluation in managing the process, a purely facilitative mediator will not readily inject those conclusions into the process.
An evaluative mediator, on the other hand, tends to evaluate the dispute more like a judge or arbitrator. Although the evaluative mediator, like all mediators, has no authority to impose a settlement on the parties, the evaluative mediator is not bashful about letting the parties and their attorneys know how he or she evaluates the dispute and will often push the parties toward the settlement the mediator thinks is appropriate, even encouraging the parties to defer to the judgment of the mediator.
Yes! Although there is a place for both pure evaluative and pure facilitative processes in certain types of disputes and to achieve certain kinds of objectives, the real magic of mediation arises out of the blending and implementation of techniques drawn from both philosophical orientations (and even from some more extreme orientations like directive or transformative mediation) by a skilled mediator. A mediator, when asked if he or she is evaluative or facilitative should to be able to simply answer “yes!”
Virtually any kind of conflict that is subject to resolution by trial or arbitration can be mediated. Although the incredible growth and acceptance of mediation has been due in large part to its usefulness as an alternative to litigation and arbitration, the promise of mediation is much broader. Mediation can be used for the prevention, control and management of emerging conflicts before they blossom into full-blown litigable or arbitrable disputes. For example, mediators are being used to facilitate the negotiation of private and public business transactions; manage internal governance conflicts in corporation, partnerships, associations and public bodies; resolve land use disputes between public and private interests and fashion acceptable public policy; to assist families with estate planning and the succession of business interests, among others.
No, as a general rule. The lay perception, shared by some attorneys, is that substantive expertise is important. Most practicing mediators would disagree. Mediators are primarily conflict managers, who bring a new way of thinking, a process, and skill in the management of that process to the table. The parties are often experts themselves; they have retained their own outside experts; and the last thing they generally need is another expert with preconceived notions and biases. If anything, too much substantive expertise by the mediator can get in the way of the kind of free “out of the box” thinking and creative problem solving that are the mediator’s stock in trade.
While there is no hard and fast rule, generally the earlier the better. With regard to the typical litigable dispute, there is a common assumption, particularly among trial attorneys, that it is necessary to substantially complete discovery, and maybe even file dispositive motions, before going to mediation. Experience indicates otherwise. Most litigable disputes, particularly those of a commercial or business nature, are, in the final analysis, really just business problems requiring a solution. Although the analysis based on legal research and fact discovery is critical to the litigation posture and positional bargaining, the dispute will probably be resolved based upon the underlying needs and interests of the parties. Generally, that can be done in the early stages of the conflict, before enormous financial and emotional capital are expended. Some mediators have observed little difference in the settlement rate between cases mediated at the earliest stages of the conflict and those mediated shortly before trial. There is potentially great benefit to the parties in mediating early and little downside. If it turns out that further fact discovery or legal research is necessary, the mediation can be recessed and resumed later. In fact, in those cases the early mediation often narrows and focuses the real issues and leads to earlier settlements.
Yes. Although Arizona has one of the strongest confidentiality statutes in the country, providing that the mediation process is confidential, and all communications, oral and written, made during, or created for or used in connection with, or acts occurring during, a mediation are confidential and may not be discovered or admitted into evidence, many mediators require all of the participants additionally agree to the confidentiality of the process and provide a confidentiality agreement to be signed by all participants.
Although it is sometimes possible to complete a mediation in a half day, most mediations of commercial disputes between two parties, or even three parties, take a full day, but conclude by 5:00 or 6:00 p.m. Sometimes, however, if progress is being made, but resolution has not been reached by late afternoon, it is best to continue into the evening and not lose the momentum. Therefore it is good if the parties and their attorneys can arrange their schedules to be able to go as late as necessary to reach a resolution. If additional time is required, the parties can all agree on a mutually acceptable date to reconvene, and the mediator will often hold the next day available in case a second contiguous day would be helpful.
With large complex multi-party mediations, and most mediations in the public sector, it is often necessary to spread the process out over days, or even weeks and months. In those cases, the mediator will work with all of the parties and their attorneys to schedule joint sessions and separate caucuses in the most efficient way for all participants.
The mediation hearing proceeds more smoothly if the parties each submit a pre-mediation memorandum. Usually each party submits its own pre-mediation memorandum, and the memoranda are not exchanged and are deemed by the mediator to be confidential in all respects. If the parties wish to exchange their memoranda, however, the mediator often will request a separate confidential supplement from each party, so that they each have the opportunity to provide the mediator any information they feel would be helpful that they do not wish share with the other side at that time. The memoranda need not be formal pleadings, and may even be in letter form. It is helpful, however, if all relevant contracts, documents, disclosure statements, dispositive motions, substantive court orders and other documents that would be helpful to the mediator are attached to the pre-mediation memoranda so that the mediator can be as fully familiar with the dispute as possible before the mediation actually begins.
The mediation process is informal, and the mediation can take place anywhere that is convenient for the parties and the mediator. Often the mediation takes place at the office of the mediator, but sometimes at the offices of one of the parties or their attorneys. In large complex multi-party mediations, the parties will sometimes arrange for conference rooms in a public facility, like at a local hotel. Although the mediation format is extraordinarily flexible, the mediator customarily meet at times together with all parties and counsel, and at other times caucus separately with each party and their counsel. During caucusing it is best if there is a comfortable place where the other parties and their counsel can meet with each other. Accordingly, if the parties decide to arrange for the location themselves, they should be certain to arrange for both a joint meeting room and caucus rooms or other area for the other parties and counsel to meet.
While there is no arbitrary “right” formula for the conduct of mediation, experience has shown that the likelihood of a successful resolution is greatly increased when the parties themselves participate actively in the process. As a result, in addition to counsel, each party should have a representative present with full settlement authority, and the party representatives should be prepared for the likelihood that they will often speak on their own behalf and participate fully in the discussions. Although in-house counsel are always welcome, experience has also demonstrated that the process works best when each corporate or institutional party also has at least one representative from the business side present and participating instead of or in addition to in-house counsel.
Most two party, or even three party, mediations require approximately six hours of preparation time, which Sherman bills at $425.00 per hour. If the parties and their attorneys anticipate that the materials they will be providing will require more than six hours, they should advise Sherman as early as possible so that he can allow sufficient preparation time. Anticipating one day of mediation at $3,400.00 per day, and approximately eight hours of preparation time, at $425.00 per hour, the typical two or three party mediation will cost $6,800.00. Generally the parties split the cost equally.
Contact Sherman at (602) 264-3330 or send him a message. Sherman or his assistant will contact you promptly to discuss the mediation, available dates, location, information for a conflict of interest check and contact information for all of the attorneys or unrepresented parties. Upon determining that no conflict of interest exists and after agreeing upon a date and any other necessary matters, Sherman will send a written engagement letter to all attorneys and unrepresented parties confirming his engagement and the date, time, location and general terms and conditions for the conduct of the mediation.
Frequently Asked Questions about Facilitation
Facilitation is a process in which a specially trained impartial third party, who has no decision making authority whatsoever, assists members of a group to improve their effectiveness and make better decisions by focusing on the process of the group dynamics and interaction among its members.
Although facilitation and mediation have much in common, and we sometimes tend to use the words facilitation and mediation interchangeably, group facilitation is a distinct process. Mediation, particularly of litigable disputes, tends to focus on an assessments of the merits of the case and the legal positions of the parties in connection with a particular conflict or dispute, while group facilitation, which generally does not involve any particular dispute, but, rather, general group dynamics and often dysfunctional behavior, emphasizes intervention to help the group identify and solve problems and make effective decisions. The goal of facilitation is to assist the group not only with the present meeting and issue, but going forward to make better and more effective decisions on its own without the need for continuing intervention of a facilitator.
Virtually any kind of group expected make decisions and undertake action, including private corporations, partnerships, businesses, organizations and sub-groups within those larger groups, and public agencies, governmental bodies, committees within those bodies, and the electorate at large can benefit from facilitation. In the public sector, particularly, the use of facilitation is rapidly expanding. It is the intersection of political science and dispute resolution, frequently called deliberative democracy. Deliberative democracy recognizes the desire on the part of large populations to be more involved in the formulation of public policy and the decision making process, especially on those matters that will most directly impact their daily lives. Deliberative democracy seeks to enhance public policy and decision making by encouraging reasoned argument and dialogue among those citizens who will be directly impacted by the policy or decision under consideration and the elected and appointed officials charged with making those policies of decisions. Its goals include identifying all of the stakeholders and providing some level of comparable attention to the ordinary and least powerful among the citizenry as is given to the well financed and organized interest groups and lobbyists.
No. The facilitator’s expertise is in the process, not the content. The facilitator assists the group in better structuring how it interacts and makes decisions, through the application of various tools and techniques often called interventions, but the content of the meetings of the group, meaning the subjects or issues under discussion and the actual decisions made, belong to the groups. The facilitator will gather information to fully understand the group culture, and its needs, goals, and any requirements or limitations on its actions, but the facilitator need not have any expertise in the subject matter of the group’s activities.
The time required for successful group facilitation is a function of the nature and size of the group, the objectives and goals of the facilitation, and the extent to which the group is or has become dysfunctional. Facilitation requires extensive preparation by the facilitator prior to the actual group meetings, with the help of the group, to fully understand the culture and goals of the group; to determine who all of the stakeholders are and their appropriate representation; to agree upon the goals and expectations of the facilitation and the resources the group will be expected to commit to the process; and to the design of the right process to fit the group. After the preparation is complete, the facilitator will be in a better position to estimate how long the actual meeting process might take. Sometimes, after extensive preparation, the actual meeting process can be completed in one session, whether one day or several consecutive days, as in a group retreat. Often, however, particularly with large groups having a complex group dynamic and serious substantive issues to decide, and generally with facilitations in the public sector, it is necessary to spread the meeting process out over days, or even weeks and months. In those cases, the facilitator will work with all of the parties to schedule sessions in the most efficient way for all participants.
The facilitation can be conducted anywhere that is convenient for the parties and the facilitator. Sometimes the facilitation takes place in a conference room at the office of the facilitator, but more often it takes place at the normal meeting site of the group, so that the group is in its customary environment. For really large group facilitations, particularly in the public sector where there are numerous stakeholders, the public body or agency generally sponsors the facilitation and often arranges a public meeting room or auditorium at a mutually convenient location.
Like the time required for facilitation, the cost is a function of many factors, such as the nature and size of the group, the objectives and goals of the facilitation, the extent to which the group is or has become dysfunctional, the amount of preparation that will be required to improve the chances of success, and the number and length of the sessions that will be required. The facilitator will charge for both the time spent in the actual meetings and the preparation time, usually on an hourly basis. Sometimes, particularly after the scope of the process has been determined, it is possible to negotiate a flat fee for the process. Sherman customarily charges $425.00 per hour for both the time in the actual meetings and the preparation time.