Last week, I spent a few days in Key Largo with my family—looking out over waters that once gave many a sailor fits. During the trip, I also led a panel for the International Academy of Mediators on novel alternatives to slow, tedious, zero-sum negotiations.
At sea and in mediations, anchors have a purpose. 𝐁𝐮𝐭 𝐭𝐡𝐞𝐲 𝐜𝐚𝐧 𝐚𝐥𝐬𝐨 𝐡𝐚𝐯𝐞 𝐮𝐧𝐢𝐧𝐭𝐞𝐧𝐝𝐞𝐝 𝐚𝐧𝐝 𝐮𝐧𝐝𝐞𝐬𝐢𝐫𝐚𝐛𝐥𝐞 𝐜𝐨𝐧𝐬𝐞𝐪𝐮𝐞𝐧𝐜𝐞𝐬.
Thisafternoon, I spoke on a panel at the Delaware State Bar Association's (DSBA)Best Practices in the Court of Chancery seminar, along with Chancellor McCormick, Lakshmi Muthu, and Wade Houston. Our “Discovery, Case Management & The Courtroom” panel addressed a range of topics. Hereare eight points from our panel.
In 2014, I wrote an article for the 𝘋𝘦𝘭𝘢𝘸𝘢𝘳𝘦 𝘓𝘢𝘸 𝘙𝘦𝘷𝘪𝘦𝘸 (link below) about the use of neutrals to assist courts and litigants with discovery, including facilitators.
At the time, use of discovery magistrates was common. It would take another four years for the first reported use of a discovery facilitator in Delaware, when I was appointed in 𝘈𝘬𝘰𝘳𝘯, 𝘐𝘯𝘤. 𝘷. 𝘍𝘳𝘦𝘴𝘦𝘯𝘪𝘶𝘴 𝘒𝘢𝘣𝘪. As the Court later observed:
Over a twelve-year period, Coach John Wooden’s talent-rich UCLA basketball teams won an unprecedented ten national championships. Despite having multiple Hall of Fame players, Wooden was known for a methodical approach to one task before anyone stepped on the court—putting on socks.
Wooden knew that the demands of the hardwood made his players prone to blisters. Injured feet put his talent advantage on the bench. Rushing past that simple process meant Kareem Abdul-Jabbar’s skyhook might never get off the ground.
Many arbitrations arise under the broad scope of the Federal Arbitration Act. One frequently disputed issue in FAA arbitrations is third-party discovery. For parties familiar with broad discovery in litigation, Section 7 can come as a surprise.
Under Section 7 of the FAA, an arbitrator “𝐦𝐚𝐲 𝐬𝐮𝐦𝐦𝐨𝐧 𝐢𝐧 𝐰𝐫𝐢𝐭𝐢𝐧𝐠 𝐚𝐧𝐲 𝐩𝐞𝐫𝐬𝐨𝐧 𝐭𝐨 𝐚𝐭𝐭𝐞𝐧𝐝 𝐛𝐞𝐟𝐨𝐫𝐞 𝐭𝐡𝐞𝐦 . . . 𝐚𝐬 𝐚 𝐰𝐢𝐭𝐧𝐞𝐬𝐬 𝐚𝐧𝐝 𝐢𝐧 𝐚 𝐩𝐫𝐨𝐩𝐞𝐫 𝐜𝐚𝐬𝐞 𝐭𝐨 𝐛𝐫𝐢𝐧𝐠 𝐰𝐢𝐭𝐡 𝐡𝐢𝐦 𝐨𝐫 𝐭𝐡𝐞𝐦 𝐚𝐧𝐲 𝐛𝐨𝐨𝐤, 𝐫𝐞𝐜𝐨𝐫𝐝, 𝐝𝐨𝐜𝐮𝐦𝐞𝐧𝐭, 𝐨𝐫 𝐩𝐚𝐩𝐞𝐫 which may be deemed material as evidence in the case.”
“𝘛𝘩𝘪𝘴 𝘤𝘢𝘴𝘦 𝘴𝘩𝘰𝘶𝘭𝘥 𝘴𝘦𝘵𝘵𝘭𝘦.” It’s a common refrain when mediation is broached. And it raises the obvious question: 𝘸𝘩𝘺 𝘩𝘢𝘴𝘯’𝘵 𝘪𝘵?
“Should settle” disputes often look like one of these:
• 𝑬𝒂𝒓𝒍𝒚, when business principals see that a protracted adversarial process makes little sense
• 𝑳𝒂𝒕𝒆𝒓, after extensive discovery clarifies strengths and weaknesses
• 𝑽𝒆𝒓𝒚 𝒍𝒂𝒕𝒆, on the figurative courthouse steps, when the window for resolution is closing
