ABOUT MEDIATION ARBITRATION TEAM LLC

Stephen L. Waters and Richard D. Judd, the principals of Mediation Arbitration Team LLC ("MAT"), have almost 80 years of combined experience representing both plaintiffs and defendants in a broad variety of litigated, arbitrated, and mediated cases, as well as various complex commercial transactional matters.

They have witnessed the explosive growth of alternative dispute resolution ("ADR"), which theoretically allows parties to resolve disputes speedily, economically, and justly. They have also witnessed the growth in dissatisfaction among members of the Bar and their clients with ADR, as it does not accomplish the goals of speedily, economically, and justly resolving disputes.

MAT has a revolutionary approach to ADR that addresses the existing deficiencies with the ADR process and provides effective remedies. The cornerstone of MAT is the premise that consultation on legal issues between colleagues (partners, associates, other lawyers in an office-sharing arrangement) is always beneficial. How often has each of us approached another lawyer for input on a particular legal issue or fact pattern and had a healthy exchange of ideas that led to a better-reasoned analysis? This type of consultation is often one of the easiest ways to have someone point out an issue or fact that had not otherwise been considered and which may be critical to resolution of the dispute. MAT's founders concluded that there should be an ADR format that provides for such a consultation.

FOCUS OF MAT IN ADR

The focus of MAT's ADR practice is the mediation and arbitration of all manner of business and contested probate and trust disputes. More specifically, MAT offers ADR services in any type of real estate dispute, including owners' associations; construction; oil and gas matters; corporate, partnership, and limited liability company disputes; valuation of businesses and real estate; accounting matters; any other type of dispute in which a business or its owners may be involved; contested probate matters; and environmental contamination problems.

PROBLEMS WITH ARBITRATION

Currently, many, if not most, arbitration clauses in contracts provide that disputes be resolved by arbitration conducted pursuant to the Colorado Rules of Civil Procedure or the Rules of the American Arbitration Association. The drafters of these provisions rarely give thoughtful consideration to the arbitration clause and, unfortunately, rely on this standard terminology to determine how disputes will be resolved. More often than not, such a cavalier approach to dispute resolution results in a costly and time consuming resolution of the issues.

Equally as disturbing is the situation where the parties agree upon an arbitration process only to find out that the selected group of arbitrators have few rules to govern the proceedings, pay little attention to the Rules of Civil Procedure or the Colorado Rules of Evidence, and are free to issue their opinions whenever it best suits their schedules. As a result, there is a growing dissatisfaction with the ADR process.

While it is still true that ADR will more than likely result in a more speedy resolution of issues than those that wind their way through the trial process, significant issues persist. The principals of MAT attempted to identify each of these issues and provide a solution that would remedy each of them.

The deficiencies in the current ADR environment are as follows:

1. Frequently, there are unreasonably delays in the issuance of written awards.
2. Arbitration awards, when issued, do not adequately address the factual and legal issues. In light of the ruling of the Colorado Supreme Court in Ingold v. AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116 (Colo. 2007), it is even more imperative that the factual and legal issues be adequately addressed in an arbitration award.
3. Arbitration awards frequently are designed to give something to both parties--a compromise or "split-the-baby-in-half" approach--when one of the parties should clearly have prevailed.
4. Arbitrators frequently do not follow the Colorado Rules of Evidence, admitting into evidence things that would be prohibited in a bench trial by a reasonable application of the Colorado Rules of Evidence.
5. In essence, there is no appeal from an arbitration award. If the arbitrator misses a key point or issues a compromise award, there is no recourse.

MAT SOLUTIONS TO ARBITRATION PROBLEMS

After a great deal of thought and discussion, Steve Waters and Dick Judd concluded these problems could generally be solved by creating rules specifically designed for arbitration, with specific time limits, including the time for the arbitrator to issue the award, adherence to these rules, adherence to the Colorado Rules of Evidence, and utilization of the same problem-solving approaches used in the daily practice of law.

More specifically, the problems could be addressed as follows:

1. Decisions and awards will be issued within a specific time frame. That time frame is based on the number of days it takes to arbitrate the matter. The specific time frame is set forth in Appendix A to the MAT Rules.
2. All decisions and awards, unless the parties specifically opt out, will contain findings of fact and conclusions of law. The MAT Rules provide for each party to file a trial brief before the arbitration, outlining the significant facts and legal issues to be decided. Those legal issues will be addressed and applied to the facts to justify the award.
3. If the arbitrator addresses the issues of fact and law in a written decision, the issues will be justly decided and not result in a compromise award.
4. There is simply no reason the Colorado Rules of Evidence should not be applied in the same manner as they would be applied in a bench trial.
5. If the arbitration award adequately contains findings of fact and conclusions of law prepared by the selected arbitrator and reviewed by the consulting arbitrator, this approach will substantially diminish the likelihood that the law has been misapplied.
6. The MAT Rules provide for a limited right of appeal with a different consulting arbitrator (another set of eyes looking at the award).

THE UNIQUE FEATURE OF THE MAT APPROACH

Steve Waters and Dick Judd believe that a key ingredient to making the arbitration process speedy, economical, and just can be accomplished with a new approach--a consulting arbitrator.

It is envisioned that the selected arbitrator and the consulting arbitrator (approved by the parties to the arbitration) would work as follows:

• The arbitration will be conducted by a single arbitrator, but during the arbitration process, the selected arbitrator will consult with the consulting arbitrator on all significant legal and factual issues. No fees will be charged for the time of the consulting arbitrator.
• Prior to the arbitration, the parties will each submit an Arbitration Brief, wit distilled facts based on discovery and crystallized issues of law to be determined. The selected arbitrator and the consulting arbitrator will review the Arbitration Briefs and discuss what they believe are the issues of fact and law to be determined.
• Testimony in an arbitrated matter will conclude at 4 p.m. each day. The selected arbitrator and consulting arbitrator will then meet and discuss the testimony presented that day, the exhibits offered and admitted, and the impact of that testimony on the issues of law.
• After the conclusion of the arbitration, the selected arbitrator will draft the arbitration award. The selected arbitrator and the consulting arbitrator will meet and discuss the proposed award to ensure that all factual and legal issues raised in the arbitration have been dealt with in the arbitration award.

The benefits of the MAT approach are obvious:

1. The MAT Rules are designed for arbitration and to accomplish the arbitration speedily, economically, and with a just resolution of the dispute.
2. The consulting arbitrator is generally familiar with the case and can make interim decisions, such as those relating to contested discovery issues, in the event the selected arbitrator is unavailable.
3. Having the consulting arbitrator look at the case during critical times and discuss the issues with the selected arbitrator should significantly lessen the chance that the arbitrator misses or does not deal with an important issue of law or fact.
4. There is a limited right of appeal using a new consulting arbitrator.

THE "YOU WIN" AWARD

MAT recognizes that in some cases, the parties do not want a reasoned opinion and only want to know who won and how much. The MAT Rules also provide for this approach.

MEDIATION

Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, and explore and assess possible solutions, with a goal of reaching mutually satisfactory agreements.

No matter how carefully contracts are drafted, there can almost always be a misunderstanding by one party of what was meant by a particular contract provision.

The principals of MAT believe that their extensive experience in negotiating business transactions, as well as litigating and settling complex matters, provides the background that will assist the parties in defining and clarifying the issues, understanding the different perspectives, identifying the real interests of the parties, and permitting the parties to self-determine a mutually satisfactory settlement agreement.

Most mediations are conducted in the context of a lawsuit--one has either been filed or is threatened. The MAT principals have found that, all too often, mediators do not deal adequately with specific issues--controlling case law, admissibility of evidence, or likely jury instructions--and fail to take a stance on what the mediator thinks the outcome of addressing those will be. MAT will address these items in a way which will allow the parties to realistically evaluate their positions. The goal is to assist the parties in reaching a mutually acceptable solution based upon the mediators thoughts regarding technical legal issues.

Each party will submit a position statement, containing the facts as that party sees them, and a statement of legal authority. These will be reviewed by the selected mediator and also by the other principal and discussed before the mediation session.

ETHICAL CONSIDERATIONS

The principals of MAT are governed by the Colorado Rules of Professional Conduct and subscribe to the Code of Ethics for Arbitrators in Commercial Disputes approved by the American Bar Association House of Delegates on February 9, 2004 and the American Bar Association Model Standards of Conduct for Mediators (2005).