Articles in the Media
Children’s Interest-Lost in Translation: Making the Case for Involving Children in Mediation of Child Custody Cases
Cassandra Adams *
INTRODUCTION
Alternative dispute resolution is a viable tool for case management.
The use of a third party neutral for resolving discovery disputes
and related pre-trial issues offers litigants an alternative for
managing the pre-trial phase of a lawsuit in an efficient manner.
Alternative dispute resolution is expanding into pre-trial practice
in response to two forces:
1) Judicial budgetary constraints; and
2) E-discovery.
Both factors require litigants to approach discovery
in a manner that meets
— Federal Rule of Civil Procedure 1—"just,
speedy and inexpensive determination of every action and proceeding" and
— Federal Rule of Civil Procedure 37—"Failure to
Make Disclosures or to Cooperate in Discovery." Utilizing alternative
dispute resolution for discovery disputes,1 primarily disputes involving electronically stored information (ESI), requires the services
of a third party referee referred to as an "e-neutral."2
An e-neutral may be called an e-mediator, special master, discovery arbitrator, discovery referee or another name specific to a particular jurisdiction for some other variation of this function.3 The e-neutral is trained and experienced in both the disciplines of alternative dispute resolution and e-discovery.4 The distinctive characteristics of each type of e-neutral fall into two categories—facilitation or decision-making. Recent private and public efforts to address e-discovery disputes around the country, discussed infra, indicate that the bench and bar recognize the need for a new approach to managing pre-trial practice. Recognizing the interplay of the different types of e-neutrals is helpful for developing local rules on this subject. Regardless of the jurisdictional approach, demand for alternative dispute resolution for procedural matters is increasing in light of the decrease in court funding and the increase in motion practices involving ESI. Alternative dispute resolution has proven successful for substantive matters;5 therefore, alternative dispute resolution should be and is successful for procedural disputes. This paper discusses the underlying need for e-neutrals, the types of e-neutrals and their respective functions, and the current use of e-neutrals.
The article is located at this link: http://www.udayton.edu/law/_resources/documents/law_review/childrens_interest.pdf
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* Allison O. Skinner is a Visiting Professor at the Thomas Goode Jones School of Law, at
Faulkner University in Montgomery, Alabama, teaching e-discovery and evidence. She is also
an Adjunct Professor at the University of Alabama School of Law in Tuscaloosa, Alabama,
teaching e-discovery and Alabama practice & procedure. In addition to her academic positions,
Allison Skinner serves as a mediator, special master and arbitrator for discovery disputes and
settlements with the Sirote & Permutt Mediation Center, a premier mediation facility in the
southeast. Allison is the co-founder and charter member of the American College of e-Neutrals
Advisory Board. She authored the Teacher's Manual (WEST 2010) for Scheindlin, Capra and
The Sedona Conference Electronic Discovery and Digital Evidence Cases and Materials
(WEST 2008), the only casebook in the country for electronic discovery. Allison is nationally
recognized for her work in the area of e-mediations. She sits on the inaugural E-Discovery
Special Master Panel for the United States District Court for the Western District of Pennsylvania.
Allison regularly lectures on e-discovery and alternative dispute resolution at national
and state levels. Prior to becoming a neutral and professor, Allison litigated complex cases in
civil courts. Allison may be reached to discuss academic scholarship at askinner@acesin.com or
askinner@sirote.com for e-neutral services.
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1 With the seemingly endless increase of computer technology in every aspect of individual
and corporate life, the "e" in e-discovery will no longer be necessary in the near future. Discovery
of electronically stored information (ESI) will become commonplace so that no distinction
between e-discovery and discovery will be required. Further, ESI disputes present themselves to
the court through a procedural discovery mechanism, ie. Fed. R. Civ. Pro. 26 or 37. Recognizing
these two points, this author uses the term "discovery" and "e-discovery" interchangeably in
some places throughout this article, but emphasizes the reference to ESI disputes for
clarification.
2 See AM. C. OF E-NEUTRALS, http://www.acesin.com (last visited Oct. 13, 2011).
3 Id.
4 Id.
5 See, e.g., REPORT OF THE MEDIATION COMM. OF THE N.Y. ST. B. ASS'N DISP. RESOL.
SECTION AND ALTERNATIVE DISP. RESOL. COMM. OF THE N.Y.C. B. ASS'N, MEDIATION:
THROUGH THE EYES OF NEW YORK LITIGATORS (2011), available at http://www.nysba.org/AM/
Template.cfm?Section=home&Template=/CM/ContentDisplay.cfm&ContentID=47291 (surveying
485 New York lawyers at the 2010 Annual Meeting of the State Bar, where ninety percent of
the lawyers interviewed had a “positive view” of the mediation process).