We speak to Gilda Turitz FCIArb about the alternative dispute resolution (ADR) sector in the USA, establishing her own practice, and working as both an arbitrator and mediator. 

What initially sparked your interest in dispute resolution? 

At law school I worked for a United States district court judge. While I observed the judicial decision-making process from start to finish, I also observed the judge conducting settlement conferences and was very interested in his process of getting the parties to resolve their complex cases. 

How has the sector in the USA changed since you started your career? 

The ADR sector has changed dramatically since I started my career. Early on, the only formal mechanism to resolve litigated court cases was through the court’s mandatory settlement conferences, usually shortly before the trial date. Some bar associations also established voluntary settlement conference programmes for civil cases, in which volunteer attorneys conducted the conferences. Cases in arbitration had no equivalent mechanism to encourage settlement. 

In the 80s and 90s, corporate in-house counsel sought ways with their outside law firms to lower their rising litigation costs. The International Institute for Conflict Prevention & Resolution (CPR) based in New York developed a Policy Statement on Alternatives to Litigation, also known as the CPR Pledge, to encourage signatories to come to the table to pursue alternative approaches to resolving their disputes, rather than filing claims in court. One consequence has been an increase in the inclusion of arbitration clauses in contracts resulting in a substantial increase in the use of arbitration. More recent developments have included many permutations to resolve “mass arbitrations”, i.e. cases involving large numbers of claimants (usually consumers or employees) who allege the same type of wrongdoing against a company (not permitted to be pursued as a class action). 

While client pressure was a driver for counsel to develop alternative ways to resolve litigated cases, the courts also sought solutions. I practiced in the Northern District of California in the 90s, and the United States district court developed two significant programmes using qualified attorneys trained by the court: mediation and early neutral evaluation (ENE). Initially, these programmes were optional for the parties but, over time, they became institutionalised. The court subsequently established an ADR Multi-Option Program which requires parties to, before the initial case management conference, discuss appropriate ADR alternatives for the case. This includes mediation through the court’s programme, private mediation, ENE, or a judicial settlement conference. This approach has been widely adopted in other federal and state courts throughout the country. 

More recently, a movement driven by businesses and experienced ADR practitioners to adopt Early Dispute Resolution (EDR) focuses on evaluation of a dispute when it first arises to identify non-litigation approaches and to pursue expedited solutions. 

Finally, online dispute resolution, which was unimaginable when I started my career, has been developed and adapted in many contexts. It continues to evolve as an ADR tool, as technology becomes more sophisticated. The role of AI in ADR, including its use in mediating disputes, is a new frontier which undoubtedly influence the processes. Many ADR institutions are looking at the potential of AI and Ciarb’s Mediation Tech Tracker is a current resource on the subject. 

You work as both a mediator and arbitrator. What are the advantages of practising in both disciplines, and how do you see the interplay between the two? 

Serving as an arbitrator requires that to decide each claim I must closely and thoroughly evaluate the parties’ legal positions, determine the facts as developed through the testamentary and documentary evidence, and assess witness credibility. The discipline required of the arbitration role has been invaluable to me for handling mediations. The two disciplines generally involve similar legal claims, fact patterns and industries to test how realistic the parties’ assessments of their legal positions are and to help the parties identify their strengths and weaknesses to move toward settlement. 

Conversely, serving as a mediator provides insights to how parties themselves identify what is important to them in their claims and defenses. It is fascinating to learn what is truly the root of the dispute in confidential mediation sessions compared to allegations in pleadings and arguments. 

Could you share some of the highlights and challenges of establishing and managing your own practice? 

Establishing my own neutral practice has permitted me maximum flexibility in my work schedule and managing my calendar. Managing my own practice has been remarkably easy using sophisticated software to handle all aspects of case management, conflicts checks, and billing. The main challenge of being in a sole neutral practice is not being in daily contact with colleagues with whom to discuss issues, whether case-related or not. Fortunately, I have many arbitrator and mediator friends to call on (many of whom are also Ciarb Fellows). 

Are enough businesses using mediation to resolve disputes? If not, what could be done to encourage its use? 

It is hard to define “enough.” My observation in almost all arbitration cases I handle is that corporate parties go to mediation at some point in the process, but often cases that should settle in mediation do not. In my opinion, important factors in mediation success are the timing of the mediation and selection of a mediator with good understanding of the industry or subject matter of the dispute – as well as excellent process skills. More businesses would be encouraged to use mediation if they fully appreciate the importance of these factors and have a realistic understanding of their expected legal expenses if they continue litigating instead of settling the case. 

What has been key to your success? 

I was raised with high expectations to do excellent work and to always act with integrity. I also was taught that for a professional, reputation is everything. Those teachings have been guiding principles in my career and, I believe, key to my success. I always have made it a priority to be very responsive to the parties I am working with in whatever context – as advisor, arbitrator, mediator, or in organisations. This has been important in maintaining those client and networking connections crucial to developing and maintaining a client base. 

Any parting words of advice for people starting out their careers in dispute resolution? 

Get the best training you can and develop a personal “board of directors” for yourself of experienced ADR practitioners who can serve as mentors and advise you on how to develop an ADR practice. Experience is critical to building a reputation and a practice, so learn how to qualify to be placed on rosters of arbitrators or mediators, or to get private referrals. Since name recognition is important, make a plan for meeting people and networking, speaking on panels, and writing articles. Be strategic about joining appropriate ADR groups and choosing committees or projects to work on and assume leadership roles when the opportunities arise. Ciarb presents many such opportunities to contribute and learn from leading practitioners in the field. Such activities, while time-consuming, are an investment in yourself to lead to a fruitful career in dispute resolution. 

Gilda Turitz FCIArb, FCollArb, is an independent arbitrator and mediator in San Francisco, California, of complex commercial cases. Before establishing her neutral practice in 2017, she was a business trial lawyer in San Francisco in an international law firm and then a boutique litigation firm. Presently on the Board of the College of Commercial Arbitrators, Gilda has held leadership positions in organisations devoted to ADR and in the American Bar Association with respect to the advancement of women in the legal profession.