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Alternative Dispute Resolution Expands into Pre-Trial Practice: An Introduction to the Role of E-Neutrals

Allison O. Skinner, Esq.*

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.

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The full article is posted at http://cojcr.org/vol13no1/Skinner.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).