October 27, 2016
The Hugh L. Carey Center for Dispute Resolution and the Financial Industry Regulatory Authority (FINRA) hosted the eighth annual Securities Dispute Resolution Triathlon on October 15 and 16, 2016 at St. John’s new Manhattan campus.
The Triathlon presents a unique test of student ability in each of the three main ADR processes—negotiation, mediation, and arbitration—in a single competition. Students are given the roles of 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 centered on a reoccurring issue in current practice: When a Structured Product that is recommended by the brokerage firm fails, what is the allocation of responsibility between the broker who has recommended the Structured Product to (his)(her) clients and the brokerage firm?
“The student participants find that, in many actual legal cases, there is no bright line between right and wrong,” said Elayne E. Greenberg, assistant dean for dispute resolution programs, professor of legal practice, director of the Carey Center, and creator of the Triathlon. “They also begin to realize that presenting legal problems are also often business, emotional, and moral problems. The learning comes in discerning which process is best for the particular case and in figuring out the 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,” Professor Greenberg added. “Our collaboration with FINRA helps students to grasp the nuances of settlement modalities and to experiment with different advocacy styles in simulated, real world contexts.”
Besting a field of 18 teams from law schools around the country, South Texas College of Law/Houston took the overall championship, with Texas A&M in second place and American in third place. Mississippi won the arbitration round, with American taking second place and South Texas College of Law/Houston third place. The mediation round went to Texas A&M, with Maryland taking second place and Mississippi taking third place. Rutgers won the negotiation round, with Miami taking second place and Northwestern taking third place. American won the Advocate’s Choice Award, given to the team voted by the other competitors as demonstrating the highest degree of effectiveness and professionalism.
The competitors found the Triathlon an exceptional, hands-on learning opportunity, and came away with a number of valuable insights, including:
- “It’s important to understand the goals of the other side. Otherwise you will give up things that you don’t have to give up.”
- “Negotiation and mediation serve as a potential source of free discovery. It’s better to settle early to avoid the uncertainty of arbitration.”
- ”It is easier to learn about processes and strategies than implementing them.”
- ”Your client will unexpectedly change her mind several times.”
- “Never assume you know what the other side cares about.”
- “Be flexible and willing to move away from positional bargaining”
- “Some of the most confrontational,, uncomfortable or extremely personal disputes can be resolved effectively through mediation.”
- “Too much time can be wasted debating claims when you should instead get everyone to focus on settlement.”
- “Every mediator has their own particular style, which requires a lot of adaptation mid-mediation on behalf of both parties in order to most effectively pursue our own interests.”
- “Preparation is key.”
- “Negotiate. Negotiate. Negotiate.”
- “Negotiation and mediation should be more collegial, while arbitration is adversarial.”
- “Each round needed a different strategy in order to achieve the best outcome. We reached better outcomes in the rounds that were more collaborative and facilitative.”
- “The processes are actually intertwined and interdependent on each other, because the effectiveness of your strategy in prior rounds will affect your strategy in subsequent rounds.”
Next year’s Securities Dispute Resolution Triathlon will be held on October 14 and 15, 2017. For more information, please the competition website.