Facilitation, Conflict Management and Dispute Resolution
Joseph P McMahon Jr.

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617 Steele St., Denver CO  80206-3941

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Originally published in The Colorado Journal, March 17,1999--Reprinted with Permission

ALTERNATIVE DISPUTE RESOLUTION

Get Together

A Convening Is an Effective ADR Option That's Not Used Often

By Joe McMahon

One of the best concepts that alternative dispute resolution has to offer is one of the least-used ADR options. That concept, which is straightforward and simple, is the use of a convening meeting facilitated by a neutral person who is knowledgeable in ADR.

The purpose of a convening is to engage an ADR expert to assist the parties in determining whether there is an ADR process that could serve the parties' interests better than a trial or arbitration. The convening need not take a great deal of time. Rather, the parties can agree that the convening will be short, perhaps agreeing to meet with the ADR expert for only two or three hours.

By agreeing to participate in a convening, the parties commit to a specific and limited period of time in order to discuss the conflict with an experienced ADR professional. Rather than trying to arbitrate or mediate the conflict, the ADR professional facilitates a discussion among the parties and their legal counsel about whether mediation, a neutral evaluation, neutral experts or other ADR methods could assist the parties in resolving, or at least focusing, their dispute. The concept was originally developed by Chorda Conflict Management Inc., Austin, Texas, and described in an article titled "Not Necessarily Mediation: The Use of Convening Causes in Dispute Systems Design," 8 Negotiation Journal 331, 335 (October 1992).

Selecting a Neutral

The neutral selected by the parties to facilitate the convening should have the following qualifications: experience in and knowledge of the various ADR options; the ability to listen to and discern the conflicts presented; and the background and knowledge to facilitate a fast and productive group discussion about ADR options that could resolve part of or the entire dispute. Ideally, the selected neutral would have broad experience in negotiation, arbitration, mediation, neutral fact-finding and advisory opinions and early neutral evaluations. In addition to that experience, the neutral should be a person who can thoughtfully consider the conflict among the parties and explain to the parties and their counsel the various options available to resolve the dispute.

Because a convening requires a limited time commitment, there are real advantages to holding a convening promptly after a conflict arises. Even if all parties have decided to use ADR rather than litigation or arbitration, it may be too early in the conflict to know whether the case is suitable for mediation or another ADR option. A convening could permit the parties to assess and focus the conflict, receive the advice of a neutral and knowledgeable ADR professional, determine whether there is a consensus for ADR, and, if such a consensus is present, help plan the ADR option. A convening could permit the parties to assess and focus the conflict, receive the advice of a neutral and knowledgeable ADR professional, determine whether there is a consensus for ADR, and, if such a consensus is present, help plan the ADR option. By limiting the time committed to the convening (for example, an agreement to participate for a maximum of two or three hours), the costs of the convening are limited.

A party preparing for a convening should consider the following issues:

  • Goals regarding resolution of the conflict.

  • The opponent's perceived goals.

  • Interests to be addressed.

  • Conflicts driving the dispute.

  • The most appropriate attendee from the opposing side, attend the convening.

  • Information necessary to resolve the dispute; who controls it; and its location.

  • ADR options that may be helpful -- mediation, neutral expert, neutral evaluation, etc.

  • Highly confidential information that can not be disclosed at the convening.

  • Helpful information likely to be obtained from the opposing side to resolve the dispute.

  • Risks in the dispute or litigation and the best alternative to negotiated agreement -- the walk-away option.

Having properly prepared, a party way attend a convening ready to discuss and perhaps resolve whether mediation, neutral evaluation, neutral experts or other ADR methods would result in a full or partial resolution; the design of any suitable ADR process; a procedure and schedule to exchange documents and information; and the rules and schedule to conduct the agreed-upon ADR process.

An early intervention via a convening offers the potential of saving the cost, strain and management time required in more "adjudicative" approaches to ADR. Even if the dispute is not fully resolved in a convening, this process may serve to identify options for resolution as well as to focus the dispute on the principal issues of conflict -- thereby avoiding the wasted time and expense.

Limiting Risks of a Convening

The risks involved in participating in a convening are limited. Of course, to ensure against inadvertent or inappropriate disclosure of information, the parties should prepare for a convening as they would for any other settlement negotiation or mediation. Further, the convening should be held pursuant to a written agreement that ensures the actions taken and statements made during the convening will not be used adversely against any party.

For those interested in trying a convening, language suitable for a post-dispute agreement could include the following subjects, and sample provisions:

Introductory clause. This clause identifies the parties, the dispute and the general purpose of the meeting. Such as the following: "The Parties are involved in a dispute concerning [state nature of the dispute] (the Dispute). The Parties agree to attend a convening meeting (Convening), facilitated by the Mediator, to discuss the possibility of using alternate dispute resolution (ADR) methods to resolve the Dispute. The purpose of such a Convening will be to assist the Parties in determining whether an ADR process could serve the Parties' interests better than resolution in trial or appellate courts."

Location and purposes of the meeting. An example of the language is the following: "The Convening will be hold at [location] at a.m. on [date]. Each Party agrees that its representatives will attend the Convening for at least two hours, but any Party is free to withdraw from the Convening after attending for that time period. At the Convening, the Mediator will facilitate a discussion among the Parties (and their consultants, advisors and legal counsel) about whether mediation, neutral evaluation, neutral experts or other ADR methods could assist the Parties in resolving part of, or the entire Dispute. If the Parties believe that an ADR process could help bring about a resolution of the Dispute, then the Mediator will also facilitate a discussion concerning: (a) the design of the ADR process; (b) a procedure and schedule for exchange of documents and other information related to the Dispute; (c) the ground rules and a schedule for conducting the selected ADR process, and, (d) the selection and compensation of the neutral (if a neutral is to be used in the Process)."

Identity of the neutral, and neutrality. Sample language is as follows: "The convening shall be conducted before [neutral's name], (Mediator). The mediator will be neutral and impartial. Neither the parties nor the mediator knows of any circumstances that would cause reasonable doubt regarding the impartiality or neutrality of the mediator. The mediator will be compensated at the rate of [state dollar amount] per hour for time spent on the Convening."

Limiting the risks. Here, the language could state the following: "All negotiations and communications made pursuant to this agreement, or in the convening, are confidential, shall be treated as compromise and settlement negotiations for the purposes of the Federal Rules of Evidence and applicable state rules of evidence, and will not be used in litigation or arbitration for any purpose including impeachment. The parties agree that no actions taken or statements made pursuant to this agreement or in the convening will be asserted to be the basis for any claim of waiver of attorney-client or work-product privilege, or the waiver of confidentiality of business information. Any information that is otherwise discoverable or admissible will not be rendered immune from discovery or inadmissible as a result of its use in this Convening. The parties and the mediator will not disclose to third parties confidential information regarding the Convening unless compelled to do so by court order. Neither party is later bound by or limited to claims, defenses, facts or issues presented or discussed at the Convening. No subpoenas, summons, complaints, discovery requests or other process or court documents will be served upon any person, entity or its counsel at or near the site of the Convening."

This ADR process can work. If the parties have thoughtfully prepared and have selected a qualified neutral, a convening has the potential of saving time and money. Legal counsel's efforts to convene the parties in this process demonstrate commitments to effectively resolve the client's dispute while fully preserving his or her litigation rights.

Joe McMahon can be reached at: mail@jpmcmahon.com.