Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance. To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/

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Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.

4. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
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5. Meet the Faculty
MODERATOR:
Steven Reingold - Saul Ewing Arnstein & Lehr, LLP
PANELISTS:
Trish Davidson - Mirick, O'Connell, DeMallie & Lougee, LLP
Timothy J. Pastore - Montgomery McCracken Walker & Rhoads LLP
Joelle Shabat – Sugar, Felsenthal, Grais & Helsinger
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6. About This Webinar – ADR & Settlement
Many cases are litigated outside of the court system through the use of alternative dispute
resolution methods such as arbitration, and the vast majority of cases settle before they reach
trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers
the basics of arbitration and mediation, presenting an effective case to a neutral third party,
and negotiating and documenting a successful settlement, either directly or with a mediator’s
assistance.
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7. About This Series – Newbie Litigator School
This webinar series is one of several series (together with the other “Newbie Litigator School”
series) that Financial Poise designed specifically for attorneys who are just starting to get
involved in civil litigation or who could use a refresher on some litigation fundamentals. The
purpose is to introduce you to different components and phases of litigation, from the basic
rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal
and post-judgment matters.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
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8. Episodes in this Series
#1: TROs and Preliminary Injunctions
Premiere date: 7/20/21
#2: ADR & Settlement
Premiere date: 8/17/21
#3: Anatomy of a Trial
Premiere date: 9/14/21
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9. Episode #2
ADR & Settlement
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10. Selecting a Mediator
• Ensure that potential mediators are familiar with the subject matter of your case.
• Understand the mediator’s approach – facilitative vs. evaluative
• Perform due diligence to see if there are potential conflicts or biases. Use Google,
LinkedIn, etc. to research past work and connections.
• Ask colleagues for any information on the mediator choices prior to selection

11. Pre-Mediation
• Work with opposing counsel and the mediator to shape the structure of the mediation
• Decide on any documents or other information to be exchanged
• Agree upon the form of any mediation statements/position statements
• Make sure persons with authority will be present at mediation
• Potential meetings with the mediator to flesh out positions of the parties, as well as
strengths and weaknesses

12. Position Statements
• Know your audience – likely more important to convince the other side of the merits of
your position than to convince the mediator
• Consider letter your client present your position statement. For certain cases, he or she
will be more persuasive than you.
• Include legal citations if helpful and requested by the mediator (retired judges might be
more likely to want law included)
• Consider sending a private position statement to the mediator as well as a “public”
statement to be seen by the other side

13. Mediator Style
• Usually fall into two categories: facilitative vs. evaluative
• Evaluative: takes more control of the mediation, willing to give more opinions on the
strengths and weaknesses of each party’s position
✓ Sometimes will offer a prediction of the likely outcome in litigation
✓ This type of mediation might occur more frequently in pretrial conferences with
judges
✓ May feel more like non-binding arbitration than mediation
✓ Offers an independent evaluation of each party’s position that may move them more
towards a settlement

14. Mediator Style (cont’d)
• Facilitative style: encourages the parties to form their own views of the merits of each
party’s position
• Mediator aids in identifying areas of dispute so parties in joint session and in caucus can
work towards finding common ground
• Leads to the parties being more in control of the mediation

15. Mediation Formats
• Mediators will often use two different formats during the mediation: joint sessions and
party caucuses
• Will often start with a joint session, then move into party caucuses
• Mediators will sometimes shuttle back and forth between party rooms to discuss
movement by one party or another
• May also bring the parties back together at various points to highlight areas of agreement

16. Arbitration Basics
• Arbitration is a process in which a dispute is submitted to an impartial outsider who makes
a decision which is usually binding on both the parties.
• It is a process where there is a hearing (fewer formalities than in a civil trial) and a
determination of a cause between parties in controversy by a person, or persons, chosen
by them or appointed under a statutory provision.
• The parties submit their disputes/issues and are bound by the award of an arbitrator in
relation to the matter which is in dispute between them.

17. Arbitration Basics (cont’d)
• Arbitrator enforces their own point of view on the contending parties and does not take into
consideration the opinions of the parties in despite.
• The award of the arbitrator is binding and rests on equity and justice, i.e., there is no scope
for compromise.
• Arbitration is best suited for the settlement of contractual rights, whereas mediation is
suited to the adjustment of disputes over interests.

18. Arbitration Advantages
• Since it is usually established by the parties themselves, arbitration brings the dispute
settlement procedure down to the level of the parties to the dispute.
• Workers and management tend to have greater faith and confidence in a settlement
machinery which they have effectively created.
• Arbitration is more flexible than other procedures and can be adjusted to the views, desires
and experience of the parties and to the circumstances obtaining in the undertaking or
industry.
• Relatively expeditious and informal (as compared to the court process).

19. Settlement Basics
Most cases filed in the United States settle either through private efforts of the parties or
through mediation
Strategic use of settlement discussions can end a dispute before the costs outweigh the
benefits of proceeding for all parties

20. Settlement Inflection Points
• Certain stages of litigation lend themselves more to settlement than others.
• Typically, settlement opportunities arise when certain costs have been completed or not
yet spent:
✓ Following a grant/denial of a motion for preliminary injunction
✓ Following a denial of a motion to dismiss
✓ Following the close of certain phases of discovery
✓ Following summary judgment briefing

21. Preparing for Settlement
• Set expectations with your clients
• Prepare clients for what their role will be in either private settlement talks or in mediation
• Negotiate with opposing counsel what types of disclosures, documents, other information
will be exchanged ahead of any settlement discussions

22. Preparing for Settlement Discussions
• Know how to evaluate the strengths and weaknesses of your case
✓ Strong on the merits, but expensive to get to resolution?
✓ Need expert witness testimony to prove portions of your case?
✓ Recognize the difference between proving liability and proving damages. Even
where liability is near-certain, damages may be low and thus a settlement may make
sense for both sides.

23. Talking to Your Client
• Discuss with your client what their true aims are in litigation
• Make a decision tree with costs of various stages of litigation and potential outcomes
• Manage expectations about cost in terms of time and money before the case is resolved

24. Positioning Yourself in Settlement Discussions
• Evaluate your initial offer/counteroffer critically
• Attempt to expand the pie with potential non-monetary settlement offers as well as
monetary offers
• Focus on interests and not positions to give best chance at resolution
• Sell to the other side why your offer will serve their interests

25. Positioning Yourself in Settlement Discussions
(cont’d)
• Don’t reflect an unwillingness to proceed with your case if necessary
• Don’t fall in love with your position; maintain distance and skepticism
• Know when to walk away from settlement discussions
• Know when to pursue assistance from a neutral third party such as a mediator

26. Offers of Judgment
• Available in federal proceedings and in some states
• Allows defendants to attempt to settle cases early for a reasonable value
• Federal Rule of Civil Procedure 68(a): At least 14 days before the date set for trial, a
party defending against a claim may serve on an opposing party an offer to allow
judgment on specified terms, with the costs then accrued.”
• (d): “if the judgment that the offeree ultimately obtains is not more favorable than the
unaccepted offer, the offeree must pay costs incurred after the offer was made.”

27. Offers of Judgment (cont’d)
• Essentially, a defendant can make an offer of judgment to a plaintiff that, if refused, can
be used to force the plaintiff to pay costs for all litigation that occurs following refusal if
the plaintiff recovers less at trial than the offer.
• Defense counsel should ensure that both costs and attorneys’ fees are explicitly included
in the offer of judgment or risk facing an accepted judgment plus a petition for attorneys’
fees from the plaintiff

28. Joint Sessions
• Joint sessions:
✓ Allow the parties to all meet face to face and give statements regarding their
positions
✓ Puts all decision makers in one place to all hear assessments of each side’s position
✓ May allow for some venting by the parties themselves
✓ Counsel clients to avoid vitriol in their own statements so as not to poison the
mediation environment

29. Party Caucus
• Party caucus:
✓ Parties will retreat into separate rooms with counsel and discuss issues separately
with the mediator
✓ Mediator can hear the positions of each side frankly and offer their own views
✓ Mediator can also convey information to and from the other side
✓ Remember: the mediator is playing a role. Evaluate facts and persuasiveness, not
sincerity

30. Role of Insurers
• Know who your decision maker is – the insurer or the client
• Know who the other side’s decision maker is, too.
• Some insurers have final say over any settlement vs. “reasonable approval” of settlement
terms
• Some mediations conducted by judges require direct participation by insurers with full
settlement authority
• Some issues may arise if the insurer wants to settle and the party doesn’t or vice versa

31. Judicial Settlement Conferences
• Judges will sometimes offer pretrial settlement conferences with parties
• This can occur either with your trial judge or with another judge
• Try to proceed with a settlement conference with a different judge than the one trying
your case to avoid prejudice in case the litigation proceeds
• In federal court, this will often occur with a magistrate judge

32. If Your Case Does Not Settle
• All is not lost – mediation or settlement discussions will have at least given you a better
idea of the other side’s views of the case
• Depending on the depth of pre-settlement information and document exchanges, you
may have additional lines of inquiry for discovery
• Can still attempt to settle prior to trial, typically at the next leverage point of the case

33. About the Faculty
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34. About The Faculty
Steven Reingold - Steven.Reingold@saul.com
Steven Reingold represents companies and their owners, executives, directors, and officers
in complex disputes involving a wide variety of different industries. Drawing on more than two
decades of experience as a litigator in cases across the country, Steven handles claims
involving contracts and loan documents and has deep experience with shareholder litigation
and partnership disputes. Clients also look to Steven for assistance with matters involving
breaches of fiduciary duty. Steven is an experienced bankruptcy litigator and regularly
represents liquidating trustees and litigation trustees, as well as other parties, in Chapter 11
cases. While Steven is a veteran in the courtroom, he is mindful that litigation is not the only
way a client may wish to resolve a dispute. He is equally experienced at bringing matters to a
conclusion through negotiation, mediation and arbitration. He also counsels clients on
avoiding and managing litigation risks that may arise in their businesses.
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35. About The Faculty
Trish Davidson - pdavidson@mirickoconnell.com
Patricia is a partner in the Probate, Trust and Fiduciary Litigation Group and the Business and General
Litigation Group. Her practice focuses on helping families resolve issues involving wills, trusts and real
estate as well as disputes involving family and closely-held businesses. In addition, she represents
individual and institutional fiduciaries, and assists them with resolving conflicts concerning their rights and
obligations.
Patricia also litigates complex business issues that arise out of breach of fiduciary duty claims, breach of
contract claims, shareholder disputes, corporate dissolutions, trade secret issues and real estate matters.
Patricia works closely with clients to manage risks and, when litigation is necessary, to implement
efficient and effective strategies. She has an extensive track record of successfully taking matters to trial,
but she also works with clients to achieve practical and expedient results when litigation is not in the
client's best interest.
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36. About The Faculty
Timothy J. Pastore - TPastore@mmwr.com
Timothy J. Pastore is Vice-Chair of Montgomery McCracken’s Litigation Department and a former military
prosecutor (USAF JAG, Captain) and Special Assistant U.S. Attorney. Tim is a trusted advisor to some of the
country’s most sophisticated companies, including industry-leading cable, telecommunications, technology, and
commercial real estate companies. Tim counsels clients in litigation/arbitration proceedings around the country
and on advisory matters, with an emphasis on home automation, electronic security and commercial real estate.
Tim’s commercial real estate experience includes commercial lease disputes, commercial mortgage
foreclosures, breach of servicing standards, partnership disputes, land use, and other sophisticated matters
involving commercial property. Tim is also lead counsel to a series of the largest electronic security companies
in the world, is a columnist in Security Business Magazine, and is a frequent speaker at security conferences
across the country.
Tim received his J.D. degree from Boston College Law School and his B.A. degree from Bucknell University.
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37. About The Faculty
Joelle Shabat- sagrawal@masseygail.com
Joelle is currently a litigation associate in Sugar Felsenthal Grais & Helsinger LLP’s Chicago office. She has represented
a variety of business entities and individuals throughout the life of a case, from inception through trial and appeal.
Throughout her practice, Joelle works to develop close relationships with her clients, guide them through every step of
litigating a case, continually evaluate their objectives, and collaborate with them to obtain positive results.
The versatility and resourcefulness Joelle has gained by litigating a wide variety of matters has brought insight that spans
across diverse industries and subjects.
With her foundation in general litigation, Joelle has experience representing clients in heavily regulated industries
including contracts, employment law, healthcare and medical devices, enforcement actions, regulatory compliance and
examinations, finance, intellectual property, and privacy. In her commercial and restructuring practice, Joelle has
experience investigating and litigating matters involving fiduciary and business tort issues, including fiduciary duty and
agency disputes; director, officer, and professional liability claims; and fraudulent and preferential conveyances.
To read more about Joelle, please visit: https://www.financialpoise.com/financial-poise-faculty/joelle-shabat/
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38. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
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39. About Financial Poise
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