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“Seek first to understand…then to be understood” — Stephen Covey

Often, when prior attorney-driven negotiations have stalled, a fresh look and opinion from an expert neutral can jump-start settlement discussions.  That is frequently why attorneys engage in mediation. Other times, mediation is court ordered.

Mediation is similar to negotiation, but conducted by a neutral, who generally acts as a facilitator and refrains from offering evaluations of the merits. Mediation is a voluntary method of ADR that allows parties to craft their own solution to a dispute. Mediators cannot impose decisions on disputing parties; rather, they encourage disputing parties to find common ground and resolve their dispute on their own terms.

Colorado statutes distinguish between a “mediation” and a “settlement conference” (similar, but the neutral is empowered by statute to offer evaluation on the merits). C.R.S. §13-22-302 (2.4) and (7). Because she sometimes offers evaluations but sometimes doesn’t, Judge Barr uses the two terms interchangeably.

There has been a long-standing academic debate about settlement style–is transformative mediation “better” than evaluative? Is “facilitative” mediation the only “real” mediation? Judge Barr believes the “best” method is to use all the arrows in the quiver. She commits to engage in unbiased, thoughtful, principled and creative problem-solving techniques that develop trust in the process and promote settlement.

“Firmly delivers without alienating.”

In complex cases, parties can agree to, or the court can appoint, a Special Master (or referee) to help them move their case along. Special Masters help the parties resolve discovery disputes or help settle some of the legal issues so the trial can be more efficient.

Special Masters often decide discovery disputes. Usually, the Special Master will recommend a solution to the Court. The Judge can accept the recommendation and make it a final order of the Court.

Parties can give the Special Master as much authority as they want. This can make the process go faster. Parties can also stipulate to make a Special Master’s decision on any issue “binding” or final.

In addition to her experiences deciding such matters as a judge and arbitrator, Judge Barr has been appointed by federal and state court judges to be a Special Master in many cases. She has ruled on a number of complex discovery issues as well as other, more substantive matters.

“No problem can stand the assault of sustained thinking.”—Voltaire

Arbitration is intended to offer parties a final legal outcome that is faster, simpler, and less expensive than litigation. Disputing parties agree to submit the case to an arbitrator with legal or subject matter expertise, who presides over case presentation and issues a binding opinion, subject to limited right of court review.

Arbitration is frequently required by contract, and the public policy of the State of Colorado clearly encourages the resolution of disputes through arbitration. See, e.g., Colorado Permanente Medical v. Evans, 926 P.2d 1218 (Colo. 1996)

Although sometimes arbitration offers little cost savings over a non-jury trial, it can provide other advantages. It is commonly believed that arbiters are less likely than jurors to let sympathy dictate the outcome. More significantly, it allows the participants to select their own judge, which is not an option available in the court system. It also offers confidentiality.

BarrADR only arbitrates commercial cases. BarrADR does not arbitrate personal injury cases, employment cases or cases where there are pro se parties.

“Honest and straightforward in assessing case merits.”

When a case is complex or has gotten out of control, then the expertise and opinion of an expert can be helpful. Case evaluation is a tool that can be used independently or in conjunction with mediation or any of the collaborative processes. It takes a close look at a dispute, the issues, the positions of the parties, as well as applicable law and trial precedents, and objectively assesses the strengths and weaknesses of the case.

Case evaluations can also be helpful at the inception of a case, to assist the attorney determining whether to proceed. Some attorneys request case evaluations when their clients get “stuck” on a valuation that the attorney believes is not accurate.

Judge Barr offers an objective perspective, informed by years of experience.

As independent player in the process, she is able to offer unbiased, legally sound feedback. This can prove invaluable in assessing positions and can serve as a “reality check” for one or all parties, who for many reasons, might not have an objective view of the strengths, weaknesses or value of the case.