July Arbitration News

Thomas P. Valenti, P.C.
July, 2007- Vol 1, Issue 7
In This Issue
Building a Consensus
Mediation of Medical Malpractice
Electronic Negotiations
Mediation Expected to Build Consensus over Seattle Bridge

Washington state has hired two Colorado mediators to overcome roadblocks to replacing the Evergreen Point Bridge, which is vulnerable to severe storms and earthquakes. The project, which lacks full funding and a design, raises complex environmental, transportation, health and community issues and involves federal, state and local jurisdictions. A state law enacted in May requires mediation for the project, resulting in a mediation contract worth nearly $500,000. A mediation progress report is required by August 1, and the mediators must submit a final plan to the governor and legislature in December.

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Illinois Court Requires Mediation of Medical Malpractice
A  new rule adopted by Illinois's Third Judicial Circuit Court requires early mediation by parties in medical malpractice disputes. The court committee consulted with doctors and attorneys in its drafting, and the rule has found modest approval from both lawyers and the medical community. Doctors are hopeful the rule will minimize cases filed in anger by parties without real understanding of the facts, while a leading attorney notes the benefit of conducting early mediation, before major investments of time and effort by the parties.
Why Mediation Works

We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.

The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes.

Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.

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Conducting Electronic Negotiations
Computers have made it efficient and practical to conduct bargaining interactions electronically. Parties introduce themselves through e-mail exchanges, and send bargaining proposals back and forth as attached electronic files. This is an especially economical way to deal with parties located in other states or in other countries. Before individuals become overly enamored with electronic negotiating, however, some cautionary considerations should be appreciated.
 
Bargaining involves personal interactions. It is difficult to have good personal interactions conducted entirely in writing. It is so much easier to establish critical rapport through in-person or telephone exchanges during which the parties talk directly to one another. Professors Leigh Thompson and Janice Nadler of Northwestern University have conducted several interesting studies in this regard. They divided students into pairs and instructed them to conduct negotiation exercises entirely through e-mail exchanges. Half of the participants were given a five-minute schmoozing telephone call during which they could discuss their personal lives, their school experiences, and similar topics. They could not talk about their negotiation exercise. When negotiators who got the preliminary schmoozing phone call worked on their exercises through e-mail exchanges, they behaved more cooperatively, reached more agreements, and achieved more efficient arrangements than the participants who had no preliminary phone calls.
 
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For questions, comments, etc., contact me at 312.832.7720 or by clicking here.
 
Thomas Valenti, P.C.
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