Corporate Counsel Business Journal (CCBJ) January-February 2021 Edition
Jacqueline Silvey, general counsel with NAM (National Arbitration and Mediation), discusses the changes she's seen in alternative dispute resolution over the years, the current state of the industry, and where she sees it going post-pandemic.
CCBJ: You've served as the general counsel of NAM for almost 14 years. During your tenure there, how has alternative dispute resolution (ADR) evolved and improved?
Jacqueline Silvey: In the time that I've been with NAM, ADR has become more of a fixture in the legal landscape. I've seen a broader variety of case types moving to mediation and arbitration, and there has been an increase in the size of the cases, the number of parties and the complexity of the matters. You're not just looking at simple two-party or low-value matters anymore, but rather multiple-parties with varying claims, complex legal issues and significantly higher dollar values at stake. The types of matters that we handle now are so much more diverse than they were 14 years ago.
Also, the quality of the neutrals that are available in private ADR now is better than ever. You really have the best of the best, both in terms of ADR experience and subject-matter experience. We have former trial and appellate level state and federal court judges in addition to attorneys with deep experience in a wide variety of subject matter areas that serve on our panels throughout the United States and internationally. The growth and acceptance of ADR has contributed to the finest jurists and legal practitioners transitioning to dispute resolution as their primary occupation.
The overall increase in the sophistication of the cases over the years has also resulted in an increase in the overall sophistication of the process. This includes everything from the different sets of rules and procedures that have been created for specific case types or for industry specific ADR programs, to technological advancements in the use of videoconferencing for mediations and arbitrations, state of the art conference facilities, and knowledgeable and experienced case managers who understand the nuances that come with specialized ADR programs and procedural rules.
The ADR industry as a whole has evolved to a point that users can rely on refined administrative processes, exceptional neutral talent and a time and cost efficient way in which to resolve their disputes.
NAM has been using videoconferencing for almost 25 years.
The COVID-19 pandemic has transformed the way an ADR company like NAM does business. What specifically has changed, and how has the user experience been enhanced?
When the pandemic hit, as Courts and law firms and companies started to shut down, the need to keep cases moving to resolution was greater than ever. NAM had been offering videoconferencing as an option for its mediations and arbitrations for over 25 years so that made it pretty easy for us to transition our cases from in person to video conferencing. We offered 4 videoconferencing platforms to accommodate our clients and created new processes for the remote submission of documents and case related materials. It was incredibly important to us that our clients were able continue to process and resolve their cases the same as they did pre-pandemic.
The four videoconferencing platforms we offer our clients are: Zoom, Cisco WebEx, BlueJeans by Verizon, and Skype.
Our preferred platform is Zoom, because of its ability to provide multiple breakout rooms, which is needed for many of the mediations we handle. Our platform is HIPAA compliant and we use specific settings that are configured differently than the generally available Zoom commercial accounts. We use a branded URL that's not available to the public, which is designed to enhance security, in addition to other customized settings,
All of our neutrals are trained to use the various videoconferencing platforms and we have information technology staff available to monitor every conference in case any party needs technological assistance. All of our conference facilities comply with social-distancing guidelines, and they regularly undergo enhanced cleaning and sanitizing for situations when matters do proceed in person.
We also offer our clients hybrid options, meaning some parties can appear in person and some via videoconference. It's always been extremely important to NAM that the user experience is exceptional, and that has continued to be a top priority since COVID. We do everything we can to accommodate our clients and make them feel comfortable.
The perfect choice for a neutral is someone who is likable and is a great communicator; someone with a good reputation who is known for their settlement skills.
The talent pool in the ADR industry has grown more knowledgeable, with a better understanding of how to provide high-quality dispute resolution services. What skills and other traits should one look for when selecting a mediator?
When counsel is looking to select a mediator, I'm usually asked to provide a list of people that have a certain subject-matter experience, relative to whatever the underlying case is. But there is another consideration that is also extremely important, perhaps even more so than the mediator's subject-matter experience – and that is the mediator's negotiation and settlement skills, as well as their personality.
You want a mediator who has great communication skills, including the ability to listen – a likable and relatable individual with a good reputation. If, for example, you are going to compare the experiences of two parties – one party that had a mediator who had all the right subject-matter experience but lesser interpersonal mediation skills, and another party that had a mediator with a bit less subject-matter experience but amazing interpersonal skills – I think you're going to find that the party that selected the second mediator, the one with the better negotiating and mediating skills, will end up having the better experience. Now, of course, I'm not suggesting that you use someone who's not familiar with the subject matter at all, or that it's not an important consideration, because it is–but I am suggesting that you look for someone whose people skills – their negotiation and mediation skills – are really top-notch.
So, in my opinion, the perfect choice is someone who is the whole package… has the subject matter knowledge and is personable as well as a great communicator; and who has a good reputation and is known for their settlement skills and abilities. That's what we look for at NAM so that we can provide our clients with the highest quality neutrals in the ADR industry.
As a leader in the ADR field, NAM invests significant resources in recruiting experienced neutrals and in maintaining state-of-the-art technology. How else does NAM strive to stand out in the ADR community?
Earlier I mentioned that the size and complexity of the cases that go to mediation and arbitration has grown throughout the years. The increase in the sophistication of the cases goes hand in hand with an increase in the sophistication of NAM itself, as a company. Our administrative staff and case managers are trained to understand the differences in these case types, the various rules and procedures and nuances that are involved in administrating different types of cases. We have highly knowledgeable and experienced case managers assigned to the various departments, as well as to the different programs and initiatives that we administrate, in order to ensure that we provide our clients with top-level customer service when administrating their cases.
NAM also excels at creating and designing ADR programs and initiatives. If it's an industry-specific program, it's not uncommon for us to design an entire set of rules and procedures and documents specific to that initiative. Candidly, we believe that we are unique in this regard. In fact, there are several industries where we have established the rules, procedures, guidelines, and administrative caseflow in its entirety. This is mission critical for industries that are considering the implementation of an ADR process or for a company looking to create an ADR program. The administrative services that NAM provides far exceed just scheduling hearings and creating calendars.
We really focus on making sure that the user experience is very positive. .From our inception 30 years ago, almost 100% of our clients that start using NAM's services continue to use our services to this day. One of the core beliefs at NAM is that if you entrust us with your case, your experience with us should be a positive one. It's extremely important to us.
NAM is one of the largest ADR companies in the United States, and it maintains a global roster, including a nationwide panel of more than 2,600 top-tier neutrals that comprises judges and other legal professionals. What kinds of matters do you see trending in your organization's workload?
We have been fortunate enough to experience growth in many areas over the years, but in the commercial space, especially recently, there seems to be an uptick in contract and business-relationship disputes. Insurance coverage disputes is yet another fast-growing area. And when it comes to employment matters, the number of employment disputes continues to increase throughout the United States and internationally.
Where do you see ADR heading post-pandemic?
I think that the pandemic has definitely accelerated the growth and adoption of ADR. With the court closures and backlogs, there has been a greater need to resolve disputes another way, so there has been an increase in the use of ADR.
Parties that were new to ADR have now experienced its benefits, including the cost-effectiveness, the high quality of the neutrals, and the state-of-the-art facilities and technology that are available. So, they will likely come back. And existing clients, who were already familiar with ADR are going to continue to return too, because they've always had a positive experience and they know the benefits of ADR. So, post-pandemic, we're going to have a larger user base than we did before and I believe that parties will continue to use ADR because of its inherent advantages. The core benefits of ADR were present before the pandemic, they've helped companies resolve disputes during the pandemic, and I'm certain that the use of ADR is just going to continue to grow afterward too.