December 18, 2018

Colorado Court of Appeals: Phrase “Arising Under” in Arbitration Clause Should Be Interpreted Broadly

The Colorado Court of Appeals issued its opinion in Digital Landscape Inc. v. Media Kings LLC on Thursday, September 20, 2018.

Arbitration Clause “Arising Under”Broad DefinitionAttorney Fees.

Media Kings LLC (Media) entered into a contract to provide marketing services to Transcendent Marketing, LLC (Transcendent). Media then contracted with Digital Landscape Inc. (Digital) to provide advertising services to Transcendent. The contract between Media and Digital had an arbitration clause providing that any disputes arising under the agreement would be resolved by binding arbitration. Per the contract, Media agreed to pay Digital a portion of its earnings from Transcendent in exchange for Digital’s work on the project. Media failed to pay Digital, and Transcendent proposed that Digital take over the project. Digital’s principal officer agreed, but had one of his other companies take over the work. Thus, Media was effectively cut out of its agreement with Transcendent.

Digital sued Media for breach of contract, and as relevant here, Media filed a counterclaim alleging that Digital had breached the implied covenant of good faith and fair dealing. The district court ordered the parties to arbitrate the dispute. The arbitrator awarded Digital $68,197.41. While discussing the counterclaim, the arbitrator also referred to it as addressing a breach of Digital’s duty of loyalty to Media. The arbitrator decided that Digital still owed a duty of loyalty to Media that it had breached, and she awarded Media damages on the counterclaim. Lastly, finding that there was no prevailing party, she declined to award either party attorney fees. The district court confirmed the order.

On appeal, Digital contended that the arbitrator lacked jurisdiction to consider whether Digital had breached a duty of loyalty to Media because this claim did not “arise under” the arbitration clause. The court of appeals analyzed the phrase “arising under” and concluded that it was sufficiently broad to include the duty-of-loyalty counterclaim. Further, the arbitration clause was unrestricted.

Digital further contended that the arbitrator improperly converted the counterclaim alleging breach of implied covenant of good faith and fair dealing to a different one, breach of loyalty, which Media had not raised. It alleged that the ruling on this different claim was unfair and the award to Media was therefore void. The court found as an initial matter that the arbitrator did not intend to rule on a facially different counterclaim. But even assuming that she had, the different claim was within the issues that the parties had agreed to submit. The arbitrator did not exceed her powers because the substituted counterclaim “arose under” the contract between Digital and Media. Further, the evidence and arguments were encompassed in the breach-of-the-duty-of-good-faith-and-fair-dealing claim. The district court did not err when it confirmed the arbitrator’s award.

Finally, Digital argued that the arbitrator exceeded her authority by refusing to award attorney fees because neither party had prevailed. The court concluded there was clearly no prevailing party, so the arbitrator did not have to award attorney fees.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Arbitration Agreement Need Only Substantially Comply with Statutory Notice Requirements

The Colorado Supreme Court issued its opinion in Colorow Health Care, LLC v. Fischer on Monday, June 11, 2018.

Health Care Availability Act—Statutory Construction—Alternative Dispute Resolution.

C.R.S. § 13-64-403 of the Health Care Availability Act governs arbitration agreements between patients and healthcare providers. Under C.R.S. § 13-64-403(4), such agreements must contain a certain notice to patients to help ensure that they enter the agreements voluntarily, and the notice must be emphasized by at least 10-point font and bold-faced type. The agreement here contained the notice in 12-point font, but it was not bold-faced. The court of appeals determined the statute requires strict compliance and that the agreement therefore failed for lack of bold-faced type.

The supreme court held that C.R.S. § 13-64-403 requires only substantial compliance. The court further concluded the agreement here substantially complied with the formatting requirements of C.R.S. § 13-64-403, notwithstanding its lack of bold-faced type. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Arbitration Clause in Health Insurance Contract Displaced by C.R.S. § 10-3-1116

The Colorado Court of Appeals issued its opinion in Meardon v. Freedom Life Insurance Co. of America on Thursday, March 8, 2018.

Health Insurance Policy—Mandatory Arbitration—Conformity Clause—Federal Arbitration Act—C.R.S. § 10-3-1116(3)—McCarran-Ferguson Act—Federal Supremacy—Preemption—Reverse Preemption.

Defendants Freedom Life Insurance Company of America and Robert J. Pavese (collectively, Freedom Life) denied health insurance benefits claimed by plaintiff  Meardon under a health insurance policy (policy) issued to her by Freedom Life. The policy contained a mandatory arbitration clause to resolve disputes. The policy also contained a “conformity clause” stating that a policy provision that conflicts with the laws of the policyholder’s state is amended to conform to the minimum requirements of such laws. Freedom Life moved to compel arbitration and to dismiss the case, relying on the mandatory arbitration clause. The trial court denied the motion, relying on C.R.S. § 10-3-1116(3), which allows denied claims to be contested in court before a jury.

On appeal, Freedom Life contended that (1) C.R.S. § 10-3-1116(3) cannot be applied because it is preempted by the Federal Arbitration Act (FAA); (2) even if the FAA does not preempt the statute, the arbitration clause remains in effect for those claims that fall outside the statute; and (3) Meardon must arbitrate her claims to “exhaust her administrative remedies” under C.R.S. § 10-3-1116(3). The plain words of the statute conflict with the mandatory arbitration clause. This conflict triggered the policy’s conformity clause, the application of which invalidated the arbitration clause for those claims covered by C.R.S. § 10-3-1116(3). Further, the FAA does not preempt C.R.S. § 10-3-1116(3) because the McCarran-Ferguson Act preempts the FAA under the doctrine of reverse-preemption.

Freedom Life alternatively contended that only those claims covered by C.R.S. § 10-3-116(3) are exempted from the arbitration clause and the remaining claims must be arbitrated. Because the parties did not seek a ruling from the trial court on this specific issue, the court of appeals was unable to determine which claims are subject to the arbitration clause.

The court’s order denying arbitration of those claims covered by C.R.S. § 10-3-1116(3) was affirmed. The case was remanded for the trial court to determine which claims are covered by C.R.S. § 10-3- 1116(3) and which are subject to the policy’s arbitration clause.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Did Not Err in Confirming Arbitration Award

The Colorado Court of Appeals issued its opinion in Pacitto v. Prignano on Thursday, July 27, 2017.

Uniform Arbitration Act—Award—Motion to Vacate—Deadline—Confirmation.

The Prignanos asserted multiple claims against Pacitto, a registered representative, in a Financial Industry Regulatory Authority securities industry arbitration. Pacitto raised several counterclaims. The arbitration panel denied the Prignanos’ claims and awarded Pacitto compensatory damages, punitive damages, and fees solely against Mr. Prignano. Many months later, when Mr. Prignano had not paid the award, Pacitto filed a combined complaint and motion to confirm the arbitration award in district court. Among other things, the Prignanos filed a motion to vacate the award and an amended answer that included a counterclaim for a declaratory judgment vacating the award. The district court order confirmed the arbitration award and found that the Prignanos filed the motion to vacate well past the 91-day deadline, thus waiving their right to object to confirmation of the award.

On appeal, the Prignanos asserted that the district court erred in applying the 91-day deadline in C.R.S. § 13-22- 223(2) and in failing to extend the deadline for filing a counterclaim for one year pursuant to C.R.S. § 13-80-109, when it confirmed the award. Under the Uniform Arbitration Act (UAA), a motion to vacate an arbitration award must be filed within 91 days after the movant receives notice of the award. The parties agreed that the Prignanos filed their motion to vacate and raised their declaratory judgment counterclaim well after the 91-day period for challenging arbitration awards. The more specific limitation period of C.R.S. § 13-22 223(2) that applies only to arbitration proceedings prevails over the more general limitation period contained C.R.S. § 13-80-109, which applies to any civil suit.

The Prignanos also argued that an equitable tolling exception should be read into the UAA. The court of appeals rejected this argument, stating that the notice of the arbitration decision made them aware of their responsibility to challenge the decision in a permitted format and by a statutory deadline. They were aware of all the grounds they could assert on appeal when the arbitration concluded.

The judgment was affirmed and the case was remanded for a calculation of Pacitto’s reasonable attorney fees and costs incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Petition to Vacate Appraisal Award Properly Denied

The Colorado Court of Appeals issued its opinion in Owners Insurance Co. v. Dakota Station II Condominium Association, Inc. on Thursday, July 27, 2017.

Appraisal Award in Insurance Dispute—Impartial Appraiser Standard.

Owners Insurance Company (Owners) issued a property damage policy to Dakota Station II Condominium Association, Inc. (Dakota). Wind and hail storms damaged buildings in the residential community owned by Dakota. The losses were combined into a single insurance claim, but there was a dispute about the total amount of damages. The parties invoked the insurance policy’s appraisal provision. Each party selected an appraiser. They submitted proposed awards of different amounts and then nominated a neutral umpire as provided in the insurance policy. The final award of about $3 million was a mix of four damage estimates from Owners’ appraiser, Burns, and two estimates form Dakota’s appraiser, Haber. Burns refused to sign the final determination of costs. Haber and the umpire agreed and signed the award, and Owners paid Dakota.

Dakota then sued Owners in federal court for breach of contract and unreasonable delay in paying insurance benefits. During discovery, Owners learned several facts about Haber that it alleged demonstrated she was not an impartial appraiser. Owners filed a petition to vacate the appraisal award under C.R.S. § 13-22-223. Following a hearing, the trial court denied the petition.

On appeal, Owners argued that the trial court erred by not analyzing the insurance policy’s appraisal dispute provision, as well as the conduct and hiring of Haber, under the Colorado Uniform Arbitration Act’s (CUAA) standards for a neutral arbitrator in C.R.S. § 13-22-211(2). The Colorado Court of Appeals found no error because the policy did not incorporate CUAA’s standards and the parties’ stipulation that CUAA applied did not specifically state whether the appraisers were to be held to the statutory standard.

Owners then argued that Haber was not an “impartial appraiser” under the insurance policy. This term was not defined in the policy and has not been construed by a Colorado appellate court. The trial court interpreted it as an appraiser who applies appraisal principles with fairness, good faith, and lack of bias. The court agreed that this was the correct reading of the policy provision and its intent. The trial court’s application of this standard was supported by the record.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Lacked Jurisdiction to Confirm Arbitration Award Where Arbitrator Died

The Colorado Court of Appeals issued its opinion in In re Marriage of Roth on Thursday, April 6, 2017.

Subject Matter Jurisdiction—Death of Arbitrator During Pendency of Arbitration.

The parties agreed to arbitrate the permanent orders issues in their dissolution of marriage. The agreement provided that the Colorado Uniform Arbitration Act (CUAA) governed the proceedings; the arbitrator would reserve jurisdiction for 20 days after issuing an award to allow the parties to seek clarification, correction, or modification of the award; and if jurisdiction was reserved on an issue, the arbitrator would hear it unless he was unavailable. The arbitrator issued an award, and both parties submitted timely requests for modification and clarification of the award. During the process of submitting these requests, the arbitrator died. Five days later, wife moved in district court to appoint a replacement arbitrator under C.R.S. § 13-22-215(5). A week later husband moved to confirm the arbitrator’s award under C.R.S. § 13-22-222. The trial court found that wife was essentially seeking to relitigate the permanent orders, and it denied her motion and granted husband’s motion to confirm the award and entered a dissolution decree incorporating the award.

On appeal, wife argued that under the CUAA, the district court lacked subject matter jurisdiction to confirm the arbitration award while the parties’ requests to modify or correct it were pending before the arbitrator. She contended that upon the death of the arbitrator, the court had subject matter jurisdiction only to appoint a replacement arbitrator. Under the CUAA, a valid and enforceable arbitration agreement divests the district court of jurisdiction on all matters submitted to arbitration pending the conclusion of the arbitration. Here, due to the timely requests for modification or correction of the award, the arbitration proceedings had not concluded at the death of the arbitrator and subject matter jurisdiction to confirm the award was not in the district court. Under the CUAA, the district court only had subject matter jurisdiction to appoint a replacement arbitrator to complete the proceedings.

Wife further contended that the district court erred by denying her motion to appoint a replacement arbitrator. Because it is undisputed that the parties’ chosen arbitrator could not act, the district court was required to appoint a replacement arbitrator.

The district court’s judgment confirming the arbitration award was vacated, its order denying wife’s motion to appoint a replacement arbitrator was reversed, and the case was remanded to appoint a replacement arbitrator to complete the arbitration proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Arbitration Agreement Must Strictly Comply with Statute

The Colorado Court of Appeals issued its opinion in Fischer v. Colorow Health Care, LLC on Thursday, September 8, 2016.

Arbitration Agreement—Motion to Compel—C.R.S. § 13-64-403—Strict Compliance.

Colorow Health Care, LLC, and its management company, QP Health Care Services, LLC, operate a long-term healthcare facility. When Fischer (the decedent) was admitted to the facility, her daughter, acting under a power of attorney, signed an arbitration agreement. The decedent passed away while a resident of the facility. Plaintiffs Amy and Roger Fischer pleaded tort claims arising from the decedent’s death. Defendants appealed the trial court’s order denying their motions to compel arbitration.

Defendants then filed this interlocutory appeal as of right under C.R.S. § 13-22-228(1)(a), contesting the trial court’s order denying their motions to compel arbitration. C.R.S. § 13-64-403 sets out specific language that an arbitration agreement must include to comply with the Health Care Availability Act. Defendants contended that the statute requires only substantial compliance with its provisions; plaintiffs argued that the arbitration agreement had to strictly comply, and because it admittedly did not, it was invalid. The court of appeals concluded that C.R.S. § 13-64-403 calls for strict compliance, and based on the complete lack of bold-faced type in the agreement, the court agreed that the agreement was invalid.  The court further concluded that this neither creates an absurd result nor violates Colorado’s public policy favoring arbitration.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Arbitration Agreement Requiring Parties to Pay Own Costs Prohibitive to Plaintiff

The Tenth Circuit Court of Appeals issued its opinion in Nesbitt v. FCNH, Inc. on Tuesday, January 5, 2016.

Rhonda Nesbitt was a student at the Denver School of Massage Therapy (DSMT), and as such was required to provide massage therapy services to the public without compensation. Nesbitt filed a class action against DSMT’s parent companies (defendants) in April 2014, alleging that the students were effectively acting as employees in providing services to the public and, as such, were entitled to compensation under the Fair Labor Standards Act and wage and hour laws. Defendants moved the district court to stay the proceedings and compel arbitration pursuant to the arbitration agreement contained in plaintiffs’ student contract. The district court denied defendants’ motion, noting that although the agreement was not unconscionable, it effectively precluded Nesbitt from pursuing her claims because the cost of arbitration was prohibitive. The district court determined that because the arbitration agreement contained no savings clause, the entire agreement was unenforceable. Defendants filed an interlocutory appeal.

The Tenth Circuit first determined that the dispute was governed by the Federal Arbitration Act (FAA), and discussed the effective vindication exception, where plaintiffs are effectively prohibited from pursuing their claims because the prohibitive cost limits use of the arbitral forum. In this case, defendants argued that Nesbitt failed to carry her burden to show that arbitration would be prohibitively expensive. The Tenth Circuit disagreed. The Tenth Circuit found Nesbitt’s argument persuasive that the possibility of fee-shifting later in the arbitration is not the same as FLSA protection. The Tenth Circuit also rejected the defendants’ arguments that the arbitration agreement was silent as to fees and costs, noting it explicitly invoked the American Arbitration Association’s Commercial Rules, which address the allocation of fees and costs. The Tenth Circuit concluded that forcing an employee to pay for arbitration with the mere possibility of future reimbursement constituted prohibitive costs.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: District Court Not Statutorily Required to Grant De Novo Review of Arbitrator’s Decision

The Colorado Court of Appeals issued its opinion in In re Marriage of Vanderborgh on Thursday, March 25, 2016.

Parenting Time Dispute—Arbitration Agreement—De Novo Hearing—Constitutional Rights.

The parties submitted their post-dissolution parenting time disputes to an arbitrator pursuant to their agreement in their Parenting Plan. After the third decision by an arbitrator, father moved for a de novo hearing, under CRS § 14-10-128.5(2), on his motion to modify the parenting time schedule. The court denied father’s request for a de novo hearing and confirmed the arbitrator’s decision.

On appeal, father first contended that the district court erred by denying him a de novo hearing on his request for equal parenting time during the school year because CRS § 14-10-128.5(2) mandates such a hearing whenever a party requests one. The plain language of this statute, however, gives the court discretion to grant or deny a party’s motion for a de novo hearing, and the Court of Appeals concluded that the court did not abuse that discretion.

Father next argued that CRS § 14-10-128.5(2) is unconstitutional as the district court applied it because it “allows an arbitration decision on parenting time, a constitutionally protected interest, without procedural safeguards and only discretionary review.” Father agreed to arbitrate the issue of parenting time, and his right to challenge the arbitration award under the Colorado Uniform Arbitration Act and to request (but not necessarily receive) a de novo hearing under CRS § 14-10-128.5 sufficiently protect his rights to procedural due process.

Father also argued that the parties’ child was denied equal protection because he does not have the same rights as children whose parents do not choose arbitration for parenting time disputes. The Court determined that the child’s rights were adequately protected under the dissolution statutes.

The order was affirmed and the case was remanded to determine mother’s request for appellate attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Resolve Client Conflicts Through Narrative Mediation

ADR2015Editor’s Note: This article is excerpted from materials written by C. Adam Foster of Hoban & Feola, LLC, who will present “Once Upon a Mediation: The Role of Narrative in Alternative Dispute Resolution” at CLE’s 9th Annual Colorado ADR Conference on October 7, 2015. See below for registration information.

Each person tells themselves a story about how their past experiences have shaped them as a person and how these experiences, along with their goals and values, define what is important to them in life. In other words, personal narrative gives meaning to past experiences, which define the individual’s self-image in the present and in turn circumscribes how they view their relationships with others and how they evaluate their choices moving forward. Individuals create multiple narratives in different contexts that inform how they see themselves in various social roles, for instance as professionals, spouses, parents and friends. These individual narratives stand in dialog with larger social narratives involving class, race, gender, sexual orientation, religion and many other aspects of identity. Moreover, the existence of these narratives and their effect on the construction of identity may be more or less consciously acknowledged depending on the individual and their circumstances at any given time. Regardless of whether consciously or (more often) subconsciously, each individual crafts a narrative that reaffirms his or her values and identity. Thus, “[t]he stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one’s social network, and even to cultural stories on a societal level” (Hansen, 2003). The notion of interrelated individual narrative and larger scale social discourse has been adopted into the practice of Narrative Mediation. Kure & Winslade (2010) elaborate:

In particular, narrative mediators focus on what can be coined “relational discourses,” which are local systems of meaning that shape the identities of parties in a relationship. These relational discourses map on to larger, more pervasive, discourses, or orders of discourse, but at the personal level, they are manifest through the ‘positioning ’of each of the parties in a power relation.

This idea of individual identity as a product of multiple individual and group discourses and narratives dovetails with the concept of “discursive positioning.” As Winslade (2003) writes: “As people speak, they position themselves not just in immediate relation to other person(s) in the conversation, but also in relation to utterances in other conversations.” Furthermore, discursive positioning occurs not just in relation to past conversations that the parties have had with each other, but innumerable conversations they have had with third parties.

The statement of facts is the most important portion of any legal brief because citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Judges, juries and arbitrators want to achieve a fair outcome. A properly crafted narrative creates moral tension, suggests a proper result and makes the decision maker care about the outcome. Moreover, a great deal of trial strategy focuses on advancing the client’s narrative and suppressing or disrupting the opposing party’s narrative. A compelling narrative has “integrity” in the sense that the facts fit together in a logical fashion and support the party’s message.

Attorneys must recognize that the audience is different in a bench trial, jury trial, arbitration or mediation—and attorneys should tailor this narrative to the appropriate audience while telling the story the client needs to tell. Moreover, each individual—the parties but also the attorneys and mediator, arbitrator, judge, jury, etc.—is trying to make sense of two related, but distinct, narratives: (i) a narrative regarding the facts of case and a desirable outcome; and (ii) a meta-narrative regarding who they are as a person and how case fits in with their life story.

In mediation making sure that the parties feel heard is critical. Parties want to achieve a favorable outcome but also to feel heard and validated in the process, so a good settlement accomplishes both. A party who achieves favorable financial outcome but doesn’t feel heard feels dissatisfied and may try to undermine the settlement when the opportunity arises.

Common sense dictates that it will usually be more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.

C. Adam Foster, Esq., serves as Special Counsel at Hoban and Feola, where his practice focuses on the representation of business owners and mediation of business cases. He received a B.A. in Anthropology in 1998 from the University of Colorado at Boulder and was elected to Phi Beta Kappa. Adam returned to the University of Colorado at Boulder to attend law school, where he served as the Articles Editor of the University of Colorado Law Review, won the CU-DU Cup Mock Trial Competition, and received the Legal Aid Award for Outstanding Advocate. Adam joined Hoban & Feola in September of 2010 and today focuses on representing small to medium-sized business owners—including entrepreneurs within the burgeoning cannabis and industrial hemp industries—in transactions and litigation. He also mediates cases involving business, partnership and employment disputes. He speaks Spanish fluently and volunteers regularly, providing pro bono legal referrals through the Colorado Lawyers Committee Legal Nights and Project Homeless Connect.

 

CLE Program: 9th Annual Colorado ADR Conference

This CLE presentation will take place Wednesday, October 7, 2015 at the Renaissance Hotel in Denver. Live program only – click here to register or call (303) 860-0608.

Learn to Negotiate Effectively – Gain the Edge!®

Everyone negotiates. If you are a lawyer – regardless of your practice area – your ability to negotiate effectively may be one of the most critical skills you possess.

Like any skill we possess, our negotiation techniques will grow and develop as we feed them. Our upcoming Gain the Edge!® Negotiation Strategies for Lawyers seminar with Marty Latz will help lawyers hone their skills and become more effective negotiators. The video clip above shows you just one of Marty’s tips for handling negotiations successfully.

As Marty explained to us “There’s basically a right way to negotiate, and there’s a wrong way to negotiate.” While most of us tend to wing it while negotiating, Marty will share decades of proven expert research to help you sharpen your negotiating skills by navigating away from an instinctive or intuitive mindset towards a more strategic method.

This program has something for everyone. “Everybody benefits. Negotiation is truly a life skill,” as Marty says. Whether you are a litigator, family lawyer, or real estate practitioner, negotiations come into your practice. Perhaps you are trying to close a business deal, encountering discovery disputes, trying to solve a taxation issue, or negotiating your office lease. Whatever it is that you do, this program will provide you tips for negotiating in any professional legal environment. By attending, you’ll gain tools to negotiate more successfully with all of the people you encounter: your bosses, co-workers, employees, clients, and other lawyers.

We hope you’ll join us and Marty for Gain the Edge! ® Negotiation Strategies for Lawyers. You can learn more about the topics Marty will cover by viewing the program brochure. As a bonus, each attendee will receive a copy of Marty’s book, Gain the Edge! Negotiating to Get What You Want. To reserve your spot now, click here to register online or call (303) 860-0608.

Then mark your calendar and come prepared to improve your skills and have fun at the same time. Marty’s other seminar attendees have told him that they “not only find [the information] useful, practical, and interesting but they also really enjoy themselves.”

We hope you’ll enjoy it too!

CLE Program: Gain the Edge! ® Negotiation Strategies for Lawyers

This CLE presentation will take place Friday, October 2, 2015 at the CLE offices. All class attendees will receive a copy of Marty Latz’s book, Gain the Edge! Negotiating to Get What You Want. Live program only – click here to register.

Editor’s Note: A version of this post originally appeared on the blog of the Legal Education Society of Alberta on July 28, 2015. Reprinted with permission.