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CPR issues comments on uniform mediation act.

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CPR Issues Comments on
Uniform Mediation Act
The CPR Institute for Dispute Resolution
on July 27 sent comments to reporters for
the proposed Uniform Mediation Act
drafting committee that endorse the draffs
mediation confidentiality provisions, but
criticize its conflict-of-interest disclosures.
A vote on the adoption of the uniform
act by the National Conference of Commissioners on Uniform StateLaw is expected
in mid-August at the commissioners’ annual
meeting.
In the letter,
signed by CPR
President and Chief
Executive Officer
Thomas J. Stipanowich, CPRstrongly
supported the proposed law’s mediation confidentiality protections. “The Act
strengthens and supplements parties’ private agreements to keep the mediation process confidential, including provisions that
might be incorporated in private contracts
through procedures such as the CPR
Model Mediation Procedure,” wrote
Stipanowich,who also is Alternativei publisher. “It is elemental that parties continue
to have the ability to structure the mediation process and their relationship with the
mediator through such private agreements.
Where such agreements exist, the statute
should be viewed as a limited backdrop for
their effectuation and facilitation by establishing certain basic expectations respecting confidentiality.”
But Stipanowich noted that sections addressing ADR disclosures “seem out of
place.” He wrote that proposed Sections
8(d)-(f) “are likely to create more conhsion than clarificationin the area.”The proposed Section 8 conflict-of-interest
disclosure sections are:
(d) Before accepting a mediation an
individual who is requested to serve
as a mediator shall: (1) make an inquiry that is reasonable under the
circumstances to determine whether
there are any known facts that a reasonable individual would consider
likely to affect the impartiality of the
mediator, including a financial or
personal interest in the outcome of
the mediation and an existingor past
relationship with a party or foresee-
able participant in the mediation;
and (2) disclose as soon as is practical before accepting a mediation any
such fact known.
(e) If a mediator learns any fact described in subsection (d)( 1) after accepting a mediation, the mediator
shall disclose as soon as is practicable.
(f) A mediator shall disclose the
mediator’s qualifications to mediate
a dispute, if requested to do so by a
Party.
The CPR comment letter explainedthat
the sections were “only tangentially related
to the purpose of the proposed statute.”
Stipanowich continued: “Although the Revised Uniform Arbitration Act contains
similar disclosure language, the issue of arbitrator non-disclosure was carefully tied to
possible vacatur of resulting arbitration
awards. Moreover, as observed in part in the
Reporters’ notes, regulations for mediator
disclosure currently exist and are common
in professional practice, court rules, contractual provisions and ethics rules, including
the proposed CPR-Georgetown Commission on Ethics and Standardsin ADR Model
Rule of Professional Conduct for the Lawyer as Third Party Neutral (April 1999).”
[The CPR-Georgetown Commission’s
model rule is available at www.cpradr.org/
cpr-george.html.]
Once the National Conferenceof Commissioners on Uniform State Law vote to
adopt the uniform law, it will begin to be
introduced in states, perhaps immediately.
States, however, may alter provisions of a
uniform act as it moves through local legislative processes.
a
WEB FEATURES DIALOGUE ON
PRACTICE AND VALUES
Law review articles that were commissioned for the January 2001, CPR-cosponsored seminar, “Dialogue o n the
Practice of Law and Spiritual Values,’’ are
now available for free in a special section
on CPR’s Web site at www.cpradr.org.
The articles appeared in the April 2001
edition of the Fordham Urban LawJournal.
The seminar served as an introduction
to the CPR Winter Members meeting on
Jan. 25 at the University Club in New York.
(continued o n page 184)
EDITORIAL BOARD
CHAIRMAN
THOMM J. STIPANOWICH
CPR Institwe f i r Dispu~cResolution
W. REECE BADER
CARRIE MENKEL-MEADOW
Georgetown Uniwnity
Owirk, H m ‘ n p n
&S U t C l l f i
Law center
T. OERENDT
ROBERT H. MNOOKIN
Haruard Law School
Thompson Gbum
JOHN J. BOUMA
PAUL J. MODE JR.
SneN & Wlmer
Wilnur. Cutler
JAMIE BRODER
Paul Hastinp, fano&
& Wder
PAUL D. CARRINGTON
& Pickmne
JAMES M. RINGER
Roger3 & Weh
A. JAMES ROBERTSON I1
S u e r Gun of
Duke Uniwnity
School of Law
Ciz&3mia
A. STEPHENS CLAY
Kilpawick & W y
NANCY ROGERS
CATHY A. COSTANTINO
Ohio Stute U n i w i t y
CoIkgeofLaw
F k a l Deposir
Insurance C o p
ROBERT A. CREO
DAVID 1. SANDBORG
City Uniutnity of
Law odr;,OfRdmtn CRV
Hong Kong
LAURA EFFEL
IRENE C. WARSHAUER
Fbppin, Dcnnon.
Morse &lessee
Fried & Epsmii
LAWRENCE J. FOX
M E L V I N I.WEISS
Drinker, Biddlr & h h
MARC GALANTER
weis
BtnM Hyna
& Lerlrrh
Unimity Wmnsin
Law Schl
GERALD
R. WILLIAMS
Brigham Young
4
WHITMORE 6RAY
Uniwity
Fanlhnm Uniutnity School
of Law/Uniwity of
Michigan Lmu School
ED E. WILLIAMS I11
HARRY N. MAUDOORIAN
THOMAS J. WYLLIE
United Glrrrr COT.
Quinnipiac Law School
&R m e
Alternatives
TO THE HIGH COSTS OF LITIGATION
Publisher
Thomas J. Stipanowich
(tstipanowich@cpradr.org)
Editor
Russ BLeemer
(rbleemer@cpradr.org)
Alternatives to the High Costs of Litigation
(ISSN 0736-3613) i s published monthly
by t h e CPR Institute for Dispute Resolution.
Subscription Address Changes to:
Alternatives
CPR Institute for Dispute Resolution
366 Madison Avenue
New York, NY 10017-3122
Tel: ( 2 1 2 ) 949-6490 Fax: (212) 949-8859
www.cpradr.org
0
Alternatives@cpradr.org
2001, CPR Institute for Dispute Resolution.
For permission t o reprint bylined articles, please
contact both CPR and the author.
CPR NEWS
CPR NEWS
(continued from page 172)
During the three-hour program, a panel
of five theologians based in the legal profession reflected on the different approaches the world’s religions take in
solving conflict. The theories were then anchored into today’s practice by three attorneys who provided comments on the
presentations.
The speakers presented the following
articles, all of which are available online:
“Introductory Remarks,” by James F.
Henry, Founder and President Emeritus of
CPR
“A Christian Perspective on Alternative Dispute Resolution,” by Joseph
Allegretti, a business professor at Siena
College, Loudonville, N.Y.;
“Mediation and ADR Insights from
the JewishTradition,” by Robert A. Baruch
Bush, an ADR professor at Hofstra University School of Law, Hempstead, N.Y.;
“Creating Sacred Space: Toward a Second-Generation Dispute Resolution Practice,” by Sara Cobb, Executive Director of
the Program on Negotiation, Harvard Law
School, Cambridge, Mass.;
“Courts, Lawyering, and ADR:
Glimpses Into the Islamic Tradition,” by
Walid Iqbal, an associate in the corporate
department at New York‘s Sullivan &
Cromwell;
“Protestant Perspectiveson Justice and
Zealous Representation,” by Randall G.
Styers, assistant professor of the philosophy of religion at Union Theological Seminary in New York;
“Faith and the Legal Profession: A Response,” by Louis A. Craco, a senior partner at New York‘s Wilkie Farr & Gallagher;
“The Practice of Law and Spiritual
Values,’’ by John W. Weiser, Chair of the
Graduate Theological Union, Berkeley,
Calif.; and
“Spirituality and Lawyering: A Practitioner’s Perspective,” by Stephen P.
Younger, a partner in New York’s Patterson,
Belknap, Webb & Tyler.
The Web site and the journal included
an additional commentary, “And Now a
Word About Secular Humanism, Spirituality, and the Practice of Justice and Conflict
Resolution,” by Carrie Menkel-Meadow, a
law professor at the Georgetown University
CPR NEWS
Law Center in Washington, D.C.
The January seminar, sponsored by CPR
and the Louis Stein Center for Ethics and
Law at New York‘s Fordham University, was
designed to stimulate discourse in the legal
profession on the nature of problem solving, and its relationship to religious doctrine and adversary practice.
- By Davida Willidms m&
CPR ON THE PODIUM
CPR President Thomas J. Stipanowich and
Vice President F. Peter Phillips will participate in seminars at the American Bar
Association’s annual meeting in Chicago in
August. The sessions will be offered by the
ABA’s Section of Dispute Resolution.
On August 5, Stipanowich will be one of
three coordinator/moderators for a discussion forum, “Hot Topics in Dispute Resolution.”The discussion expects to focus on the
Revised Uniform Arbitration Act,
multidisciplinarypractice, multjurisdictional
practice, the arbitrators’code of ethics, family law mediation standards, ombudsman
standards, and pre-dispute arbitration agreements with consumers and employees.
Phillips will be a presenter at an Aug. 4
program “ADR and E-Commerce: Cutting
Edge Issues.” The discussion will examine
how businesses, government and lawyers
have responded to E-businessdevelopments.
For comprehensive conference information including registration procedures, visit
the ABA Web site at www.abanet.org/annuaU200 I/home.html.
0
.
0
Next month, CPRVice President Kathleen
Scanlon will participate in a panel at a wideranging, two-day ADR conference in
Rimini, Italy.
T h e conference, “Culture of Conflict
and Alternative Resolution of Commercial Disputes: A D R Experiences and
Models Compared,” is cosponsored by
Italy’s ADR Center, and the Rimini Bar
Association.
Scanlon will appear on a panel called “The
ADR Movement: the United States and the
Italian Experience”on September 28.
There is no charge for the conference,
but preregistration is necessary. Materials
are available in English at www.adrcenter.
it/convegnorimini. The conference also is
expected to be available with simultaneous
CPR NEWS
translation on the Internet at www.adr
center.it.
- By Davida Williams 1
NEW ADR SUITABILITY
SCREEN IS OUT THIS FALL
A new version of the CPR ADR Suitability Screen is in the final stages of development, and will be released early this fall.
CPR developed the screen in the mid1990s, and revised it in 1998, based on a
screen devised by New York-based law firm
Debevoise & Plimpton, in an effort led by
partner Robert L. King.
The 2001 revision will be an expanded
“ADR Suitability Guide,” applicable to a
wide range of disputes, and is a tool intended for veteran ADR practitioners as
well as newcomers.
The guide will include a Mediation
Analysis Screen and Commentary. It will
provide an innovative tool to guide lawyers and clients in their decision on placing a dispute into mediation.
The revision project director is Kenneth
Kressel, a professor of psychology and director of the Program in Conflict Management at Rutgers University in Newark,
N.J. Kressel is preparing the guide with the
assistance of the CPR ADR Suitability
Committee.
In addition to Robert King, committee members include Phillip M.
Armstrong, Georgia-PacificCorp., Atlanta;
Kathleen A. Bryan, Motorola Inc.,
Schaumburg, 111.; Brad N. Friedman,
Milberg Weiss Bershad Hynes & Lerach,
NewYork; John J. Gibbons, Gibbons, Del
Deo, Dolan, Griffinger & Vecchione,
Newark, N.J.; James I?Groton, Sutherland,
Asbill & Brennan, Atlanta; Claire P.
Gutekunst, Proskauer Rose LLP; Harry N.
Mazadoorian, Quinnipiac Law School,
Hamden, Conn.; Carrie Menkel-Meadow,
Georgetown University Law Center, Washington, D.C.; Margaret L. Shaw, ADRAssociates, New York, and Gary Weiner,
Sonoma County Office ofAlternative Dispute Resolution, Santa Rosa, Calif:
CPRstafFliaison is CPRVice President
Kathleen M. Scanlon.
Release date information will be posted
as soon as it is availableon www.cpradr.org.
The 1998 ADR Suitability Screen is available at www.cpradr.org/suitscrn2.htm, or
on Lexis and Westlaw.
i
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