Tuesday, January 24, 2023

Meet D1’s Neutrals Series: JESSE HOWARD WITT


 Frascona, Joiner, Goodman & Greenstein
Location: Boulder, Colorado
Email: jesse@frascona.com
Law School: University of Denver School of Law (JD 2001)
Types of ADR services offered: Mediation, arbitration, neutral evaluation
Areas served: Colorado, California, and others as requested

Q: Describe the path you took to becoming an ADR neutral.

A: As my career has progressed, I find myself more interested in helping parties find solutions than “winning.”

Q: What percentage of your current legal practice is spent on ADR work?

A: 10%. When not serving as a neutral, I work as an advocate and represent parties in litigation.

Q: Describe your background and experience mediating and arbitrating construction cases.

A: I worked in the construction field before and during law school. Since then, I have focused on construction law over the last twenty years as an attorney. I feel this gives me a helpful perspective when mediating disputes, with an understanding of the parties’ diverging perspectives and the realities of litigation.

Q: Mediators are oftentimes described as “facilitative,” “evaluative,” or “transformative.” Do you have a style?

A: I tend to be evaluative in my assessment of the parties’ claims and defenses.

Q: What should attorneys and their clients take into consideration when selecting a mediator?

A: Seeking someone with experience in the given area of law is always a good starting point. I feel that my experience both in the construction field and as a trial attorney makes me an effective mediator of construction disputes.

Q: What are your thoughts on requiring mediation as a contractual prerequisite to litigation or arbitration?

A: I think it is prudent to include such a term to encourage resolution, but parties must be committed to the process. If either side views mediation as a perfunctory requirement, the ADR process is unlikely to be successful. I recommend that parties attempt mediation as soon as they have a clear understanding of the claims at issue.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Provide their clients with a realistic assessment of their cases’ strengths and weaknesses.

Q: Are virtual mediations as effective as in-person mediations? What are their advantages/limitations?

A: I prefer in-person sessions, but virtual mediations can be effective as well, so long as the parties commit to the process. The advantages of virtual sessions are that they can be easier to schedule and feature reduced travel expenses, both of which may encourage earlier resolution. Disadvantages include the difficulty in building rapport with the parties and the risk that parties will be less committed to the process. In this regard, the ease and cost savings of a virtual session can ironically become a disadvantage.

Q: Do you think limits should be placed on discovery in the arbitration context?

A: Yes. When drafting arbitration clauses, I often adopt Colorado’s discovery parameters for simplified procedure cases (Rule 16.1) regardless of the amount in controversy. I have found that these strike a good balance for most disputes.

Q: What is the biggest problem you see with arbitration today?

A: Parties too often view arbitration as little more than a limitation on liability to consumers, under the belief that arbitrators will award less than juries. This leads to poorly drafted arbitration clauses that incorporate court rules and result in proceedings that amount to little more than private bench trials. Arbitration is most effective when used as a tool to facilitate resolution using expedited procedures, focused discovery, and neutrals with experience in a given field. Arbitration should not feel skewed against consumers; if done properly, arbitration can be beneficial to both sides and produce a just outcome for many construction disputes.

Q: What are some of your interests or hobbies outside of your ADR Neutral practice?

A: Tennis, running, film.

Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

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