Law Talk with the Flock

What Is Alternative Dispute Resolution?

March 18, 2020 Jeana Goosmann, Joel Carney Season 1 Episode 5
Law Talk with the Flock
What Is Alternative Dispute Resolution?
Chapters
Law Talk with the Flock
What Is Alternative Dispute Resolution?
Mar 18, 2020 Season 1 Episode 5
Jeana Goosmann, Joel Carney

Goosmann Law Firm Omaha Litigation Attorney and Managing Partner Joel Carney and Host Jeana Goosmann discuss alternative dispute resolution - what it is and how it can be beneficial. During this episode you will learn: 

  1. What is and Difference between Mediation & Arbitration
  2. When is ADR best and why?
  3. How to find/select an arbitrator/mediator
  4. Explain what it means to be AAA panelists

Learn more about Goosmann’s litigation practice HERE.

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer.

Show Notes Transcript

Goosmann Law Firm Omaha Litigation Attorney and Managing Partner Joel Carney and Host Jeana Goosmann discuss alternative dispute resolution - what it is and how it can be beneficial. During this episode you will learn: 

  1. What is and Difference between Mediation & Arbitration
  2. When is ADR best and why?
  3. How to find/select an arbitrator/mediator
  4. Explain what it means to be AAA panelists

Learn more about Goosmann’s litigation practice HERE.

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer.

Speaker 1:

Do complex legal issues. Hold you back. Let's get energized and bring clarity to your top legal questions. This is Law Talk with the Flock by Goosmann law firm.

Jeana Goosmann:

Hello, I'm your host, Jeana Goosmann, CEO and managing partner of the Goosmann law firm, author and business leader here to help navigate you through the law, your business and leadership with Law Talk with the Flock. Today I have with me Joel Carney, managing partner of the Goosmann law firms, Omaha office and litigation attorney, and we're going to talk about alternative dispute resolution. Welcome Joel.

Joel Carney:

Thanks. Jeana. Excited to be here.

Jeana Goosmann:

What is ADR, alternative dispute resolution, that's what we're going to be talking about. Before we jump into that, let's talk a little bit about Goosmann law firm in the Omaha office. We started this up together back in 2017.

Joel Carney:

I know we're already in your three almost I guess the third year together and so it's pretty exciting to see how far it's come in a short amount of time. But we've accomplished a lot and grown a great team and it's been a fun process to do and grow a team.

Jeana Goosmann:

So what's our team like down here in Omaha?

Joel Carney:

Dynamic. It's a great group. I'm pretty proud of just to how it's come together because you know, I mean we've assembled a group of diverse practitioners that are all good at what they do. They also share our mission, which is really to protect business leaders wealth and help them, you know, win disputes and spend time on what's worth it to them. And you know, we've really done that and been very strategic and it has how we built this. We could have filled an an office just to fill the office, but what we've really done is take the time to do it right and have it kind of happen organically. And I'm really proud of how it's come together.

Jeana Goosmann:

I am too Joel and it's been a long time since we first met back in law school at Creighton over 20 years ago now, I believe. I hate to say that, but it's true. And then in those young lawyer bars is creation days and the ABA. And now all of a sudden that here we are, many years later in Omaha as sitting in the Omaha office, the Goosmann law firm, and with an amazing team. I agree. It's all about the team. And we have a team of about 25 here in the Omaha office.

Joel Carney:

Yeah, it's a great group. I think everybody likes to come to work and loves to do what they do and be passionate about doing things the right way, doing things for clients and being very focused on getting great results. And that's what it's all about at the end of the day. And then also, you know, we do things that other law firms don't do; things like this. We are thought leaders in the business realm and I think that's made us something different in Omaha that is special that I think you and I are very proud of. And I know that people like to come to work. So that's the key.

Jeana Goosmann:

One of the things we help our clients with is alternative dispute resolution, which is our topic for today. And so let's jump into that a little bit. What does ADR mean or alternative dispute resolution?

Joel Carney:

Well ADR has been obviously since even back in our law school days. Back then it was kind of newer, right? It started to catch some traction. I think you and I both did ADR training even in law school and got certified. But really what it's designed to do is give the power back to the litigants , give them , especially in the mediation realm , they have the power to decide if the case is going to settle or not. And so that's very attractive to our clients because they know that as opposed to a random jury that you don't know who's going to be sitting on that jury, you know, if they're gonna have some bad squash that morning and have an upset stomach. They could just do something out of left field and you have to appeal and the case i sn't over. Whereas you get to a round mediation table, t here's an opportunity to tell the mediator, the story, the mediator can also talk to both sides and really get to the heart of the matter and kind of also talk turkey with these folks and explain them their risks sometimes when it's not just, when it's somebody other than your lawyer reinforcing probably what the lawyer has already told them, but now all of a sudden they're hearing it, it's very powerful way to let those folks know that boy, I can have closure. I can close the book on this and you know, actually buy a piece and get it done. The problem with mediation is a lot of times people, nobody gets their home run outcome. They have their suits of armor on their swords and their shields and they're fighting for that, you know, advocacy, they want the best outcome. But a lot of times everybody has to bend i n that mediation to get it done. And I think that is powerful. On the other hand, what arbitration does is you're giving the power to settle the case or decide the case I should say, to an arbitrator rather than a judge or a jury. But what you get with arbitration as opposed to litigation is a much quicker resolution because the arbitration r ules says, and we're both AAA American arbitration association arbitrators, gives a more prescribed, shorter window that lets people get to that solution quicker. And that obviously leads to a more cost effective, t imely outcomes.

Jeana Goosmann:

So I just going to break this down a little bit. There's a lot going on in there an alternative dispute resolution, essentially it's an alternative to going to court. Is that right?

Joel Carney:

That's exactly right.

Jeana Goosmann:

Okay. And the litigants are the people that are in the dispute, two different parties or more parties that are having the dispute and if they want an alternative to waiting to go through the court system, there's these alternatives to resolve their case.

Joel Carney:

Yes, and these aren't necessarily mutually exclusive. You can do litigation and ADR and a lot of times that's exactly what happens is that it's kind of a blend of the two, right? Because a lot of times it makes sense depending on the complexity of the litigation to actually sit down and try mediation or arbitration to try to get something done sooner rather than later. And the other thing that that does, and lawyers love it because we'll find out as you know , as lawyers and explain to our clients what the best offer is on the table right then. So we kind of understand the way that the other party sees the case and just gives a nice insight into what their approach is going to be if it does go forward and doesn't settle at mediation. So that's pretty nice.

Jeana Goosmann:

So some cases you could go straight into an arbitration, some cases you might try mediation and then if it doesn't work, either go to arbitration or go to court and others you might file the suit. And then while you're in the middle of the case, before the judge, go try a mediation or kick it over to arbitration.

Joel Carney:

Exactly. And there are certain types of matters that there's court rules that require mediation attempts before it gets to the court. So a lot of times in divorces there's a requirement or the judge has some power to either strongly suggest or force the parties to go to mediation and attempt to settle it. And it's pretty common because judges know the power and giving the power of settlement that happens in those mediations is effective and a lot of times obviously cleans up their dockets . So that makes the judges and the court happy.

Jeana Goosmann:

And you mentioned that we're both AAA arbitrators. What is the AAA?

Joel Carney:

So the American Arbitration Association goes back a long, long, long time. And it's a organization of arbitrators that are basically commissioned as panelists that are able to provide insight. Obviously to get on this panel it's not just something that they hand out.

Jeana Goosmann:

It took us a few years to get there, didn't it?

Joel Carney:

That's one of those rites of passage that you know, it really, they don't want new lawyers that don't have the experience, that haven't been through some of the battles to be able to obviously understand the complexities of the things that we deal with as arbitrators. A lot of businesses if they decided to put arbitration clauses in their contracts just for the obvious reasons we've already talked about efficiency, they have certainty, they can kind of control their costs much better. And it's, it's really, again, just a way that they can have a little bit quicker outcomes. And from a business standpoint and planning, it just makes a lot of sense.

Jeana Goosmann:

And then I know as AAA arbitrators too , I serve on the commercial litigation panel and I believe you do as well. And they have different panels for different attorneys or arbitrators with different areas of expertise. And that's a little different than just going to court where you might get a judge that in their past was a criminal attorney and now they're deciding your commercial case, right?

Joel Carney:

Exactly. There's also a consumer panel but the people that are serving as arbitrators, t hat's the other thing that's great about arbitration is cause the parties to the arbitration can look at the panels, can look at our resumes, our CVS and see what our backgrounds are and if they can agree on somebody that's appropriate, it happens. Boom. It's obviously r eally easy. If they can't, there's a process in place that allows them to make their first, second choices, third choices. And if they still can't agree, then the t riple a will step in and say, okay, they'll look at it and they'll pick the right party. T here will be the best arbitrator for their case.

Jeana Goosmann:

So unlike in court where you don't get to pick your judge, they actually pick the arbitrator.

Joel Carney:

Yeah. It's really, you know, court is really can be just kind of a crap shoot a little bit in terms of you roll the dice and you'd never know what you're going to get. Whereas a lot of times the arbitrator is the perfect person that's versed in this, maybe did that same practice as a practitioner him or herself back in the day and just makes a lot of sense.

Jeana Goosmann:

And one other thing I wanted to focus on was are these things binding? So mediation, let's talk about that first. Is the mediation binding and what does binding mean?

Joel Carney:

Binding means it's final . It's , it's really kind of a final order. There's no right to appeal. So mediation, the fact is if you, if the parties come to a meeting of the minds, there's a mediation agreement said it is binding for all intents and purposes, sometimes things can go haywire and some people have buyer's remorse or regret and they try to withdraw from that settlement. But it is tough to get out of a mediation settlement agreement after you've made that decision and you know, have gotten it done.

Jeana Goosmann:

Mediation is also voluntary, right? As far as a process. Like if you don't come to an agreement that day, you can walk away and oftentimes you do walk away, right?

Joel Carney:

Yeah. Yes you do. I mean it's very common to walk away. The cool thing about mediation is even if you walked away and walked out of the office, it's not uncommon for that case to settle at mediation the next week because the mediator takes pride in having a 90% plus settlement rate. You know, they want to show parties that they're good at getting deals. Cause that's the key to being a great mediator is getting people to the center and getting things done. And so there's a sense of pride if you can keep your batting average, if you will , really high in settled cases.

Jeana Goosmann:

And if you need to bring it back for a second day, a mediation, that's always possible too, right?

Joel Carney:

Oh yes. Especially on those bigger cases, it's exactly right. And a lot of times, you know, eight hours isn't enough. Especially if you've got multiple parties and you know, we've done mediations where you've got 5,000 parties and some of those really complex commercial litigation.

Jeana Goosmann:

The bigger the dollar amount, the harder the case.

Joel Carney:

It's true. It's just and the more parties the more, obviously complications.

Jeana Goosmann:

Lawyers want to be heard.

Joel Carney:

We all want a chance to have our chance to tell our our clients, you know, we were tasked with that. That's our goal and we have to tell the story. And if we don't, if we're not heard, we're not serving our client.

Jeana Goosmann:

And then how about arbitration? Do you just get to walk out of arbitration?

Joel Carney:

No. Arbitration is binding also. There's, again, t here's certain exceptions to every rule, right? But really for the part it is f inal. Again, you're buying a quicker end settlement to the case.

Jeana Goosmann:

Well, thanks Joel for all the insight and talking with me today about alternative dispute resolution. Enjoyed having you on the Law Talk with the Flock and I really appreciate your insight. Have a great day everyone, and go make it worth it.

Speaker 1:

Thanks for joining us for Law Talk with the Flock by Goosmann law firm. We hope you feel energized and ready to soar past your goals. Become a flock fan and subscribe to our podcast for weekly episodes. Learn more at goosmannlaw .com.