October 20, 2017
The Hugh L. Carey Center for Dispute Resolution and the Financial Industry Regulatory Authority (FINRA) hosted the annual Securities Dispute Resolution Triathlon on October 14 and 15, 2017 at St. John’s Manhattan campus.
The Triathlon stands alone as a single competition that tests law student ability in each of the three main ADR processes—negotiation, mediation, and arbitration. Students compete as advocacy lawyers, settlement counsel, and clients in a securities dispute. At the outset they try to negotiate a resolution, then they represent their clients in mediation, and finally they proceed to arbitration before a three-person panel. Professional neutrals from FINRA’s roster serve as mediators, arbitrators, and judges, giving students a realistic experience of these vital dispute resolution approaches.
This year’s fact pattern, “Shades of Gray,” centered on an emerging issue in current practice: What constitutes a brokerage firm’s adequate supervision of its graying population of brokers? Implicit in this issue is whether adequate supervision requires an ongoing assessment of a broker’s mental capacity.
“Given these novel facts and issues, the competitors came to see that presenting legal problems are often not just about the law, but also involve business, economic, psychological, and societal problems,” says Elayne E. Greenberg, assistant dean for dispute resolution programs, professor of legal practice, director of the Carey Center, and creator of the Triathlon. “For instance, they considered organizational changes that brokerages need to make to heighten their awareness of brokers who are starting to experience cognitive decline. The learning comes in discerning which dispute resolution process best addresses the multiple dimensions of a particular case, and in identifying effective ways to advocate in the three processes.”
Regardless of the career path they choose, in or outside the legal profession, law students benefit tremendously from developing the dispute resolution skills they need to be effective advocates. “After all, most legal cases do settle,” Professor Greenberg notes. “As collaborators on the Triathlon, the Carey Center and FINRA give students a unique opportunity to grasp the nuances of settlement modalities, and to experiment with different advocacy styles in simulated, real world contexts.”
Besting a field of 20 teams from law schools around the country, the Benjamin N. Cardozo School of Law took the overall championship, with the University of Mississippi School of Law coming in second place and the American University Washington College of Law taking third.
Cornell Law School won the arbitration round, with the Marshall–Wythe School of Law at the College of William & Mary placing second and Texas A&M University School of Law coming in third.
The mediation round went to Brooklyn Law School’s Team Q, with the University of Maryland Francis King Carey School of Law taking second place and William & Mary coming in third. Brooklyn Law School’s Team R won the negotiation round, with American placing second and Cardozo earning third.
University of Pittsburgh School of Law won the Advocate’s Choice Award, given to the team voted by the other competitors as demonstrating the highest degree of effectiveness and professionalism. Texas A & M took second place and Brooklyn Law School’s Team Q earned third.
The competitors found the Triathlon an exceptional, hands-on learning opportunity, and came away with a number of valuable insights, including:
- Prepare! Prepare! Prepare! Prepare! And then be ready for what you didn’t expect!
- You can’t negotiate with people who don’t want to negotiate!
- Negotiation is an art form between flexibility and adaptability!
- Always know your BATNA and never accept a bad deal for convenience.
- Humility can go a long way with a mediator!
- I have learned different ways to use the mediator effectively.
- Mediators can get through to the client and keep us on track.
- Mediators are sanity checks!
- Using external standards can be very effective.
- Remain firm even if the mediator is attempting to push you to an agreement.
- Try as much as possible to resolve your case before you go to arbitration. The arbitration outcome is much less foreseeable than in negotiation or mediation. Ditto! Ditto!
- Pick your mediator wisely so that you can avoid arbitration!
- Learn the difference in advocacy styles among the three dispute resolution processes!
- Facts and wishes don’t change the law!
Next year marks the 10th anniversary of the Securities Dispute Resolution Triathlon, which will be held on October 13 and 14, 2018. For more information, please visit the competition website.