Berks Barrister Summer 2018 - 15

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Berks County Bar Association's
1998 - 2018

C

ADR Program Celebrates
Twenty Years!
By Jesse L. Pleet, Esquire

ongratulations to the successful Berks County Bar
Association Alternative Dispute Resolution ("BCBA
ADR") Program! Twenty years and counting for
successfully assisting litigants resolving their disputes through our
hometown mediation and arbitration services.

Back in the mid-1990s, Frederick K. Hatt conceived the idea
of our Bar Association creating a program to resolve disputes
in litigation. In going back through the archives, one finds a
memorandum from Barbara Kittrell, Executive Director at the
time, dated November 17, 1997 addressed to Fred and distributed
to those seeking certification as members of a mediation and
arbitration panel in order to serve the Berks County legal
community.
This initial group included, alphabetically, Attorneys Jay N.
Abramowitch, John R. Badal, Daniel E. P. Bausher, Richard A.
Bausher, G. Christopher Eves, Madelyn S. Fudeman, Thomas M.
Golden, Stephen N. Gring, Frederick K. Hatt, David M. Kozloff,
Karen Feryo Longenecker, Frederick R. Mogel, Jesse L. Pleet,
Jerry R. Richwine, and John J. Speicher.

All participated in a special training session that was provided
on Saturday, December 13, 1997 in an all-day retreat facilitated
by Attorney Judy Shopp. The training included conflict resolution,
negotiation theory, communication techniques, mediation process,
civil dispute resolution advocacy, ethics, and role-playing. This
officially launched the BCBA ADR Program in 1998 upon a
marketing campaign to attract civil cases which seemed suitable
for the program.
From the outset of the program, the predominant use of the
mediation and arbitration services has been for the resolution
of personal injury, premises liability, and vehicle claims. Slowly
word began to spread among plaintiff and defense lawyers and
insurance carriers, that private mediation and arbitration through
BCBA ADR Program was a cost-effective, prompt, and easy
way to resolve claims. Eventually, real estate and construction
disputes were included. From the clients' standpoint, it was their
opportunity to be heard. Even though these proceedings were not
in court, there was a qualified neutral party trying to reconcile the
lawsuit to everyone's satisfaction.

There is something special about being able to resolve a case
with a local lawyer serving as mediator or arbitrator. Although the
mediations outnumber the arbitrations, the arbitration program
has likewise been successful. Generally, the parties select one of
the members of the panel upon agreement of all involved so that
the arbitrator schedules a hearing and makes a ruling upon the
liability and damages with no appeals.

As a way to hedge the risk, all parties have the opportunity
to enter into a separate "high-low" agreement whereby the
plaintiff agrees to accept no more than a maximum ceiling that
was privately negotiated while at the same time the defendant(s)
pledges to pay at least a minimum "floor" amount after the
arbitrator rules. If the arbitrator makes a decision falling within
the high and low parameters, that becomes the amount of the
award. Everyone is protected with this high-low side agreement.
The arbitrator is not aware of its terms. It has been a very effective
tool to bring closure to difficult claims otherwise on track for trial.
The following are testimonials from several bar members
familiar with the program.

From Frederick K. Hatt:
"Before being President, Abraham
Lincoln was a lawyer from whom
other lawyers sought advice. He often
told them that his most accomplished
cases were the cases he was able to
settle on the courthouse steps, not the
cases that he had to try to verdict. In
a writing from July of 1850, he advised: 'Discourage litigation.
Persuade your neighbors to compromise whenever you can. As a
peace-maker the lawyer has a superior opportunity....'
"Over twenty years ago, in the autumn of 1995, at a Berks
County Bar Association Civil Rules Committee Meeting,
the possibility of Berks County lawyers creating a program to
facilitate settlements of disputes first began to take shape. By
1998, with the Berks County Bar Association as its sponsor,
mediation/arbitration agreements, program rules, and training
had all been completed, and the Berks County Bar Association
Alternative Dispute Resolution Program accepted its first cases.
By the end of this year, as the Program celebrates its twentieth
year, it is on track to have handled a total of 700 mediation and
arbitration cases.

"The past and future success of the Program can be attributed
to the cooperation between the Bench and the Bar. The
willingness of the Bench to include mention of the Program on
the Certificates of Readiness for Trial and Arbitration forms, and
their recommendation of the Program to parties at conferences,
Continued on page 16
Summer 2018 | 15


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Berks Barrister Summer 2018

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