Vol. 14, No. 11 December 1996 Alternatives 143 CPR Institute for Dispute Resolution Briefs: International Intellectual Property UN Affiliate Releases IP Mediation Guide A new guide to mediation geared to international intellectual property disputes has been released by the World Intellectual Property Organization, a Geneva-based United Nations organization. WIPO opened its Arbitration and Mediation Center nearly two years ago. Director Francis Gurry says that it began in response to the internationalization of intellectual property disputes, the highly technical nature of the disputes, and because an increasing number of IP disputes involve multiple jurisdictions. The center’s 16-page guide is a primer on the use of mediation. Gurry explains that private attorneys’ suggestions indicated that there was a need for a small handbook that they could give to their clients to explain mediation in lay terms. The guide also describes the center’s program for assisting in mediation. The center provides intellectual property mediators and facilitates mediation with consulting and support services.The parties decide on the language to be used and the location of the mediation. The center’s fees run to .lo%of the value in dispi-!te, to a maximum of $10,000. Center-providedmediatoreit has 613 mediators in 57 countries, Gurry says-range in price from $300 to $600 per hour, and $1,500 to $3,500 per day. The WIPO pamphlet suggests that parties use mediation because “it enjoys remarkably high rates of success.... Indeed, on one view, mediation never fails, even if a settlement is not reached, because the parties will always come away knowing more about the dispute and, probably, at least having narrowed the issues in question.” Gurry says that the pamphlet currently is available only in English, but soon will be out in French. He says that it also will be available on WIPO’s Internet site, which also has WIPO’s mediation rules availablein English, French,Arabic, German and Spanish. The Internet site is at http://www.uspto.gov/wipo.html. For copies of the pamphlet, contact the WIPO Arbitration and Mediation Center; 34, chemin des Colombettes; 1211 Geneva 20; Switzerland. The telephone number is 01 1-41-22-7309111, and the fax number is 011-4122-740-3700. Justices Dissent Over Arbitration Decision Two Montana Supreme Court justices have declined to enforce a US. Supreme Court remand because they believe that the top court is wrongly forcing small businessmen into arbitration. The action of Justices Terry N. Trieweiler and William Hunt last summer, however, was only symbolic: the Montana court issued its enforcement order 42, with the twojusticesdmenting,in thewake of a May US. Supreme Court decision. In the May case, the U S . Supreme Court reversed a Trieweiler opinion, Casarottou. h b u r d i , 886 P.2d 931 (Mont. 1994), in which the Montana court refused to enforce an contract arbitration clause in a Subway sandwich shop franchise dispute. In his 4 3 majority opinion, Trieweiler wrote that the clause requiring the franchisee plaintiffs to arbitrate didn’tcomplywith a Montana law requiring arbitration clausesto be “typed in underlined capital letters on the first page of the contract.” In May in Doctor’s Associates Znc. u. Casarotto, 116 S. Ct. 1652, an 8-1 U.S. Supreme Court reversed. In an opinion written by Justice Ruth Bader Ginsburg, the Court found that the Montana law conflicted with the Federal Arbitration Act. It had asked the Montana court to remand the case in accordance with its ruling. The nation’s highest court previously had told the Montana court to reconsider the 1994 decision in light of a subsequently decided US. Supreme Court case,but the Montana court stuck to its original opinion. (continued on following page) ’ + “You seem to have seuen distinct personalities, each practicing a different type of law. ’’ * I 144 Alternatives (continuedfrompreuious page) When the Montana Supreme Court issued its order in July, the twojustices balked. In their dissent, Trieweiler and Hunt wrote: “We cannot in good conscience be an instrument of a policy which is as legally unfounded, socially detrimental and philosophically misguided as the United States Supreme Court’sdecision in this and other cases which interpret and apply the Federal Arbitration Act.” The provision required the franchisees to arbitrate disputes in Connecticut. The Montana court found said that its state’s notice requirement established “fundamentalpublic policy.”It declined to enforce the franchise contract’s a p plication of Connecticut law in light of the policy. Trieweiler wrote that the notice law must be followed because the arbitration provision limited dispute resolution “toa procedure as potentially inconvenient, expensive, and devoid of procedural safeguards as the one prcvided for by the rules of the American Arbitration Association, and the terms of this contract....” In an interview with Alternatives, Trieweiler says that if his dissent on the July order had been controlling, he wouldn’t have issued it. “If I was the only judge,” he says, “I would have recused myself. I think since the majority of the court intended fully to carry out the remand, there is nothingwrong with making a symbolic gesture.” Trieweiler decries the proliferation of mandatory arbitration clauses, noting that they are now “cropping up on insurance policies.”He adds: ‘You can’t honestly tell me that people who make these purchases have anything to say about their terms.” Nevertheless,Trieweiler says he generally supports alternative dispute resolution efforts. He says he has high expectations for a mandatory mediation program that began operating Oct. 1 for cases that have reached the Montana Supreme Court. Still, Trieweiler, who is elected to his post on the Montana Supreme Court, laments the high court’s Doctor’s Associates decision. “I wish the U.S. Supreme Court had a few people with a little more practical experience in representing people,” he says, adding, “then maybe we wouldn’t have this problem.” @ ! Vol. 14, No. I 1 CPR Institute for Dispute Resolution CPR NEWS CPR NEWS Model Procedures Online Starting this month, LexisBNexisB will feature selected CPR materials in its new alternative dispute resolution (ADR) library. A dozen documents will be available online. Among the materials are CPR’s model procedures for mediation, the minitrial and non-administered arbitration; model drafting clauses; and selected industry and practice ADR programs, including the CPR Employment ADR program. To access the documents, select the service’s <AD& library. N e w Insurance Commitment Signers Northbrook, 111.’~Allstate Insurance Co. has become the 38th signatory to the CPR Insurance Industry Dispute Resolution Commitment. Three Allstate subsidiaries also are taking part in the commitment. Under the commitment, the companies agree to first negotiate and then mediate to resolve disputes with other commitment signatories. N e w Panelists Seven attorneys have been selected as new members of the CPR Panels of Distinguished Neutrals, and are now available to help resolve business and public disputes. They include CPR National Panelist Prentice H. Marshall of Cotsirilos, Stephenson, Tighe & Streicker, who also will serve on the Chicago Regional Panel; M. Neal Rains of Arter & Hadden, who will serve on the Cleveland Regional Panel; Paul A. Renne of Cooley Godward LLP, who will serve on the San Francisco Regional Panel; and Donald B. Ayer ofJones, Day, Reavis & Pogue, who will serve on the District of Colum- December 1996 CPR NEWS bia Regional Panel. Madison, Wis., attorney Howard S. Bellman, has been selected as an At-Large Regional Panelist. Paul S. McDonough ofNewYork’sJackson, Lewis,, Schnitzler & Krupman has been named to the CPR Employment Panel, Northeast Region, and Laurence M. Scoville Jr., of Detroit’s Clark Hill PLC, has been named to the CPR Construction Panel. New Franchise Program Members Detroit’s Little Caesar Enterprises Inc. and Tallahassee, Fla.’s Homes & Land Publishing Ltd. havejoined the CPR Franchise Mediation Program. There now are 47 companies taking part in CPRs National Franchise Mediation Program. Under the program, either a franchisee or franchiser may initiate a “resolution procedure,” though franchisee participation is voluntary. The parties must first try to resolve their dispute through direct negotiation under the program, and then through mediation. Membership Additions A Big Six accounting firm, three large companies and six law firms constitute the group of new and renewing CPR members in the third quarter of 1996. Joining as sustaining member corporations are Ernst & Young; General Motors Corp.; RJR Nabisco Inc., and Westvaco Corp. New sustaining member firms are Turin, Italy’s Brosio Casati e Associati; San Francisco’s Cooley Godward LLP and Gray Cary Ware & Freidenrich of San Diego. The recent additions to the list of contributing member firms are Detroit’s Clark Hill; Cleveland’s Hahn, Loeser & Parks; and New York-based Jackson, Lewis, Schnitzler & Krupman.