Preparing for Mediation: From Selection to Presentation of Claims
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The document outlines a webinar series aimed at educating attorneys, accountants, and business professionals on alternative dispute resolution, focusing specifically on mediation and arbitration. It details the preparation needed for mediation, including mediator selection, risk analysis, and client readiness, along with discussions on how to effectively navigate the mediation process. The series emphasizes practical, accessible advice and features expert panelists with extensive backgrounds in dispute resolution.
Preparing for Mediation: From Selection to Presentation of Claims
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- 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
- 3. 3 Thank You To Our Sponsor
- 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 4
- 5. Meet the Faculty MODERATOR: Ingeuneal C. Gray– American Arbitration Association PANELISTS: Leslie A. Berkoff – Moritt Hock & Hamroff LLP Byeongsook Seo– Snell & Wilmer LLP Elizabeth J. Shampnoi– Shampnoi Dispute Resolution & Management Services, Inc. 5
- 6. About This Webinar – Preparing for Mediation: From Selection to Presentation of Claims This episode will cover how to begin the mediation process. We will review mediator selection, including interviewing, references and who may be the right fit for your specific dispute. From there we will discuss how to best prepare for the mediation. How should a risk analysis be performed? What or who should you consider having at the mediation and how to make those decisions. What is a risk analysis and when should you perform the same? How do you prepare your client for the mediation process? What about preparing or communicating with the mediator? Understanding key components of the mediation process to ensure you have done everything possible in order to achieve a negotiated resolution. How to prepare a pre-mediation statement - should it be joint, mediator’s eyes only or a combination. Evaluating whether a joint session will be productive versus starting and staying in caucus. 6
- 7. About This Series – Alternative Dispute Resolution 2022 Disputes arise in various business contexts, including contracts, torts, M&A and/or within a business divorce or separation. Understanding the ability to secure a more expeditious and potential private result is driving many companies to consider utilizing alternative means to dispute resolution. This Series will review in detail both traditional forms of alternative Dispute Resolution- Mediation and Arbitration. The Series will take participants through the preliminary steps in preparing for a mediation, including mediator selection, preparing your case, pre-mediation submissions and risk analysis. This will be followed by an in-depth discussion on the mediation process, presenting your case, understanding the process and how to work with the mediator, how to work through impasse and how to achieve a creative resolution. The series will next review the arbitration process beginning with how to prepare and file claims, picking an arbitrator (or arbitrators), preparing for the preliminary conference and the process. The final episode will go through presenting your case and claims to the arbitrator or panel, including the early stage discovery options and motions through to pre-trial statements, the arbitration hearing and post arbitration submissions and awards. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 7
- 8. Episodes in this Series #1: Preparing for Mediation: From Selection to Presentation of Claims Premiere date: March 10, 2022 #2: Conducting the Mediation Premiere date: April 7, 2022 #3: Preparing for an Arbitration Premiere date: May 5, 2022 #4: Handling the Arbitration Premiere date: June 2, 2022 8
- 9. Episode #1 Preparing for Mediation: From Selection to Presentation of Claims 9
- 10. What is Mediation? •Mediation v. litigation 10
- 11. What is Mediation? (cont’d) • Mediation v. arbitration 11
- 12. Is Mediation Appropriate For You? •Is there a mediation agreement? 12
- 13. Is Mediation Appropriate For You? • What if you don’t have a mediation agreement? 13
- 14. When Should We Mediate? •Types of disputes appropriate for mediation 14
- 15. When Should We Mediate? (cont’d) •What if we don’t think mediation will be productive? 15
- 16. Do We Have Enough Information For Mediation? • How can we get information from the other side before mediation? 16
- 17. Can We Force the Parties to Mediate? •Agreements to mediate 17
- 18. Can We Force the Parties to Mediate? (cont’d) •Court mandated mediation - Advantages v. disadvantages 18
- 19. Can We Force the Parties to Mediate? (cont’d) • Timing 19
- 20. How Do We Get the Mediation Process Started? •Request v. demand for mediation •Is there an obligation to mediate? 20
- 21. What Should You Expect From the Mediation Process? •Selecting a mediator -Good v. bad v. effective mediator 21
- 22. What Should You Expect From the Mediation Process? (cont’d) •Selecting a Mediator - Credentials - Experience - Expertise - Personality - Selection process 22
- 23. Settlement and Mediation • Should we offer settlement before mediation? - Setting “floors” and “ceilings” 23
- 24. What Should the Client Do Prior to Mediation? •What are your goals? 24
- 25. What Should the Client Do Prior to Mediation? •What are you willing to walk away with? 25
- 26. What Should the Client Do Prior to Mediation? •Information you have but your attorney may not - Personality of participants - Motivation of participants 26
- 27. What Will the Attorneys Do Before Mediation? •Mediation statement 27
- 28. What Will the Attorneys Do Before Mediation? •Confidential v. exchanged statements 28
- 29. What Will the Attorneys Do Before Mediation? •Communication with the Mediator 29
- 31. About The Faculty Leslie A. Berkoff– lberkoff@moritthock.com LESLIE A. BERKOFF is a Partner with the firm where she serves as Chair of the firm's Dispute Resolution Practice Group and is the former Co-Chair of the firm's Creditors' Rights and Restructuring Department. Ms. Berkoff splits her practice between these two Practice Groups. In the restructuring space, she concentrates her practice in chapter 11 cases, bankruptcy litigation and corporate workouts, where she represents a variety of corporate debtors, trustees, creditors and creditor committees both nationally and locally. Ms. Berkoff is an experienced commercial litigator. Ms. Berkoff's Dispute Resolution practice has her frequently serving as an ad hoc and panel mediator; she is on the Mediation Panel for the Eastern and Southern Districts of the United States Bankruptcy Courts in New York, the United States Bankruptcy Courts in Delaware and the Eastern District of Pennsylvania, as well as the Commercial Mediation Panel for Nassau County. Ms. Berkoff is a trained arbitrator and serves on the American Arbitration Association’s National Roster of Commercial Arbitrators and Mediators, the AAA-ICDR International Panel and is a member of the AAA-ICDR Council. Ms. Berkoff also serves as a member of the Second Circuit United States Court of Appeals Pro Bono Appellate Mediation Panel and as a Special Master in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department Mediation Program. Ms. Berkoff is the past Co-Chair of the American Bankruptcy Institute's (ABI) Mediation Committee and is a contributing editor of the quarterly column Mediation Matters. She has also served as Co-Editor and contributing author of the ABI's Bankruptcy Mediation Manual. Ms. Berkoff also serves as the American Bar Association ("ABA") Business Law Section's representative on the Dispute Resolution Advisory Council, and is the Chair of the Dispute Resolution Committee, the Vice Chair of Programming for the Business Bankruptcy Committee of the Business Law Section and the Vice Chair of the Bankruptcy Study & Policy Committee. She is a contributing editor for the ABA publication Business Law Today on Dispute Resolution. Ms. Berkoff speaks and writes frequently on topics concerning both Dispute Resolution and Bankruptcy. Prior to joining Moritt Hock & Hamroff LLP, Ms. Berkoff served as a law clerk to the Honorable Jerome Feller, United States Bankruptcy Judge in the Eastern District of New York, from 1991 to 1993 and to the Honorable Allyne R. Ross, Federal Magistrate Judge in the Eastern District of New York, from 1990 to 1991. 31
- 32. About The Faculty Ingeuneal C. Gray– GrayI@adr.org Ingeuneal C. Gray is the Vice President of the Houston regional office for the American Arbitration Association (AAA). In that role, she interacts with the AAA’s clients who file commercial cases and the panelists who serve as arbitrators and mediators in the city of Houston and the states of Louisiana and Mississippi. Ms. Gray is an Attorney-Arbitrator-Mediator with over 20 years of legal experience. Before joining the AAA she ran ICG Law Firm, PLLC from 2007 to 2015, which focused on business development, transactions and compliance as well as conflict prevention and alternative dispute resolution in the areas of government contracts, commercial, construction, and employment-law related matters. Ms. Gray received her JD degree from Southern Methodist University School of Law and her BA degree from the University of Houston. Ms. Gray proudly serves as Co-Chair of the AAA’s Diversity and Inclusion Committee. She is a member of the distinguished College of the State Bar of Texas as well as an active member on multiple committees with the American Bar Association, the Texas Bar Association and the Houston Bar Association. 32
- 33. About The Faculty Byeongsook Seo – bseo@swlaw.com Byeongsook Seo is business litigator. He represents individual clients in complex intellectual property and commercial matters. Byeongsook's clients have sought his guidance in disputes related to failed business ventures and disputes among business partners, shareholders and directors. He has defended many officers and directors from lawsuits arising out of their business dealings. He also represents investors in disputes arising out of their private investments. Many of his cases have involved hearings regarding extraordinary remedies such as injunctions and receiverships. Byeongsook is experienced in all aspects of litigation, including trials and appeals, injunction hearings, receivership hearings and arbitrations. He has been recognized by the Best Lawyers in America, Commercial Litigation, Colorado Super Lawyers, and 5280 Denver’s Top Lawyers. Byeongsook is active in the community, serving as board member and past president of the APABA Foundation and as a member of the Judicial Nominating Commission for the 2nd Judicial District. He earned his J.D. from the University of Denver Sturm College of Law and his B.S. in Engineering Mechanics from the United States Air Force Academy. 33
- 34. About The Faculty Elizabeth J. Shampnoi – elizabeth@shampnoiadr.com Elizabeth J. Shampnoi is an attorney, consulting expert, independent mediator, arbitrator and trainer based in New York City with 20 years of experience in the field of alternative dispute resolution. Ms. Shampnoi’s focus on alternative dispute resolution began early in her career when she served as the District Vice President of the New York region of the American Arbitration Association. In that role, Ms. Shampnoi was responsible for overseeing case management; mediator and arbitrator recruitment, training and development; and working with in-counsel counsel and law firms to develop and implement dispute avoidance and dispute resolution programs, including internal employment dispute resolution plans. Following her tenure at the American Arbitration Association, Ms. Shampnoi joined a litigation boutique where she represented a diverse range of organizations and individuals before state and federal courts, administrative agencies, and arbitration forums. Ms. Shampnoi also served as settlement counsel. Ms. Shampnoi has also served as in-house counsel providing legal advice surrounding employment disputes and commercial matters with an emphasis on early, internal dispute resolution and cost-effective and strategic dispute management. In her consulting practice, Ms. Shampnoi serves as an arbitration and mediation consulting expert working with advocates to help guide them through the dispute resolution process using strategies for successes. In her dispute resolution practice, she has successfully mediated over 500 commercial and employment disputes involving all areas of discrimination, sexual harassment, wage and hour, contract, real estate and partnership matters. She has also served as a sole arbitrator and as part of a tribunal in similar matters. Mr. Shampnoi’s success as a neutral is rooted in the breadth of her experience, ability to build rapport and temperament. Her balanced perspective, broad experience and insight gained from serving as a business executive, advocate, in-house counsel in a wide variety of settings has been the catalyst for her success. 34
- 35. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 35
- 37. About Financial Poise 37 DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. It’s websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/