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CPR launches Europe ADR initiative.

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to the High Costs of Litigation
CPR Institute for Dispute Resolution
D I G E S T
European Initiatives. Model procedures that will help guide the
development of alternative dispute resolution highlight the work of the
CPR European Advisory Committee. Like the U.S. models, the EAC
emphasizes party-managed ADR. But the EAC’s business and procedural
views, writes Susan Scott, are adapted for a much different business
market. The article, which includes a listing of the 54 EAC members and
their affiliations, describes the purposes of the new models for mediation
and minitrial procedures, and dispute resolution clauses for business
contracts. ........................................................................................ Page 105
Institutionalizing ADR. At State Farm Insurance, resolving its 30,000
daily claims from individual policyholders and large companies efficiently
has made ADR the “preferredapproach.”And a Texas operating subsidiary’s
litigation in the late 1980s paved the way for Nationsbank to incorporate
mediation and arbitration into customer account agreements and other
relationships. State Farm vice president and general counsel-claims
Michael E. Bragg and Nationsbank associate general counsel Richard W.
Simmons discuss the use of alternative dispute resolution in their companies’ core businesses. .......................................................................
Page 106
Mediating Coverage Disputes. The disparate goals of insurance
policyholders and their carriers appears to weigh against mediated solutions to coverage disputes. Not so, write HaroldJ. Moskowitz and David S.
Sheiffer, of Wilson, Elser, Moskowitz, Edelman & Dicker, who discuss the
parties’ common concerns. The authors examine the factors that may make
a coverage matter an appropriate candidate for resolution by nonbinding
mediation. ........................................................................................ Page 107
ADRBibliography.Each year since 1983,CPR has honored writings that
have advanced the understanding of alternative dispute resolution. Collected here are the 58 award winners in seven categories of the annual CPR
Awards Program for Excellence in Alternative Dispute Resolution, sponsored by Cigna Corp. The categories include general ADR, arbitration,
court ADR, industry-specific topics, mediation, negotiation and systems
design. ............................................................................................... Page 110
Arbitration Decision. After losing an arbitration over an employment
contract,Johnson &Johnson challenges the award in a NewJersey court. At
stake is an entire business,J&J’s new home HIV-testing kit, Confide, which
the arbitrator said the company must give back to its former employee, who
developed the product. ...................................................................
Page 112
Vol. 14, No. 9 October 1996
CPR Launches
Europe ADR
Initiative
By Susan Scott
In 1993,CPR held an invitational meeting in Paris for 75 senior European
corporate and law firm counsel. The
focus was to examine whether and
where innovations marking dispute
resolution in the U.S. might benefit
European lawyers and companies, and
where developments in European
practice might provide models for U S .
consideration.
By late 1994, CPR had confirmed interest among leading European lawyers
for some form of association with one
another and with CPR, and formed the
CPR European Advisory Committee
(FAC) to determine specifically where
CPR could contribute soundly to development of alternativedispute resolution
in Europe. Jacques H. Schraven, legal
director of Shell International, chairs
the EAC of distinguished lawyers from
10 Western European countries.
Why have theyjoined with CPR and
one another to support, indeed to help
define, the course of ADR in Europe?
According to EAC chair Schraven,
“First, we believe it is critical that the
counsel of major corporations play a
leading role in advocating new, cost
effective methods of dispute resolution
in Europe. Second, while litigation in
(continued on page 108)
Susan Scott is a vice president of CPR InstituteforDispute Resolution and director of the
CPR Eurqean Initiative.
European ADR
(continued from front page)
much of Europe does not present the
extreme delays and runaway costs frequently associated with litigation in the
US. and U.K., the EAC believes ADR
will gain acceptance and take root in
Europe for other compelling reasons.
These include superior results-often
creative, business-based settlements
that could not be achieved in litigation
or arbitration; greater client control of
the process and outcome; preservation
of business relationships; a n d , of
course, the potential for significant financial and time savings.”
The CPR European Advisory Chmmittee, whose members are listed on
the next page, is focused on prornoting mediation and other nonbinding
forms of alternative dispute resolution
for significant business and public disputes in Europe. It aims to achieve this
objective through providing dispute
resolution information and practice
tools customized for European companies and lawyers, and by mobilizing
a vanguard of European legal leadership to shape the course of ADR as it
evolves in Europe.
Customized Tools for
European Lawyers
To begin fulfilling its first objective, the
EAC organized three work groups,
headed by John Kendall of Allen &
Overy of London, on mediation; Richard Kreindler of the Frankfurt office ofJones, Day, Reavis & Pogue, on
the minitrial; Anton): M.D. Willis of
London’s Clifford Chance, on Dispute
Resolution Clauses. In May, CPR and
the EAC published the results of these
work group efforts:
CPR Model Mediation Procedure for
Business Disputes in Europe
change and written pleadings are considerably reduced in the European
models from their U.S. precedessors.
The model European minitrial and
mediation procedures also emphasize
the facilitative role of the neutral third
party and only secondarily, should the
parties agree, an evaluative role. This,
too, is in some contrast with the U S .
models.
CPR Model Minitrial Procedure for
Business Disputes in Europe
Mobilizing and Informing a
Broader Leadership Base
CPR Model Dispute Resolution Clauses
for Business Contracts in Europe
Toward its second objective of mobilizing a leadership vanguard to influence the course of ADR development
in Europe, the European Advisory
Committee is presenting a special
seminar in London on Nov. 5, called
EmPrfflngt W R Drrue1opmmt.s in lhrope.
The seminar will involve key European
ADR architects and leadership in an
examination of important developments and outstanding issues, from the
growing use of mediation in commercial disputes; to the pros and cons of
mediators issuing evaluative opinions
on likely court outcomes; to the potential impact on business of proposed
or actual court ADR programs in Europe; to practices being adopted by
leading European companies and
firms to institutionalize ADR use.
Seminar attendance is limited to maximize dialogue and issues development
among participants.
(continued onfollowingpagr)
While the models benefited from
the review of many lawyers in many
jurisdictions, the EAC views them as
“living documents” subject to adaptation to particular cases and to further
general refinement in light of the experience to be gained in Europe.
Like CPR’s domestic equivalents,
the European models emphasize partymanaged ADR, with the view that the
quality and economy available in ADR
are best achieved, and the client best
served, when the process is crafted by
lawyers to meet the parties’ needs and
when it is managed by the parties and
the neutral themselves. The European
models depart from the domestic CPR
versions in that the work groups provided business and legal contexts appropriate
to Europe and omitted those
.
that were too U.S.-specific. Further,
the scope of discovery, document ex-
A B O U T T H E CPR IN S T IT U TE FOR DI SPUTE R ESOLUTI O N
ORGANIZED BY PROMINENT CORPORATE
COUNSEL, T H E CPR I N S T I T U T E FOR
DISPUTE RESOLUTION has become a leader in
developing uses of private alternatives to the costly
litigation confronting major corporations and public
entities. The membership of CPR, a nonprofit organization, consists of more than 500 large companies,
leading U S . law firms, academics and judges.
T O ITS MEMBERS, CPR OFFERS EXTENSIVE
BENEFITS AND SERVICES, including research
access to CPR’s unique ADR database; training and
counseling; a complete library of ADR practice tools
and model procedures; and semi-annual conferences
for CPR Sustaining Members.
M‘oultl you like further information about CPR rnembership? If so, please complete the following form:
U.tn,c
0 1 g.llll,,llllm
I IIIC.
.Add,?,\
Trlr,ll,l>nt
Return to: Elizahcth MrCahan, Vice Presidelit-Mcrnberslii~
and r\tiiiiinistratioti, (:PK Iiistitute for Dispute Resolution, 366
Madison Avenue, N e w York, NY 10017. T;lephoiie: (‘212) 9496490. Fax: ( 2 1‘2) 949-8859.
Vol. 14, No. 9
October 1996
Building the EAC Strategy
for 1997-98
The EAC plans its own business meeting and strategy session for the day
preceding its seminar. The purpose:
to define new strategies to further increase ADR awareness and use in Europe, importantly among major
European companies. One strategy
is expected to involve a small group
of European corporate counsel in the
identification/selection of distinguished CPR neutrals highly qualified
to serve as mediators and as other
neutrals in the resolution of sophisticated international business disputes.
How does CPR President James F.
Henry view ADR’s (and CPR’s) prospects in Europe? “Cautiouslybullish.
This year and next year, for example,
there are ADR programs on the agendas of diverse European business and
legal groups, such as the Paris-based
ICC’s Institute of International Business Law & Practice, and the Brussels-based Management Centre
Europe. There are also several nascent ADR initiatives in Europe today, including new or planned court
and government-sponsored ADR
programs, and new national ADR
organizations aimed specifically at, or
at least including, resolution of commercial disputes.
“I remain convinced, however, that
the soundness of European ADR for
business disputes will be measured
by the extent to which corporate
counsel are involved in its development. It’s not that the private bar
and the courts do not have important roles to play. They do. In fact,
the practice must become predominant, with the eventual designations
of ADR counselors, systems designers and neutrals, if ADR is to realize
its full potential. Their role is vital.
But if European ADR for sophisticated business disputes is to have
cost-effectiveness, quality and client
control as three of its hallmarks,
then the counsel of major European
corporations must be deeply involved in its development. This belief drove CPR’s successful U.S.
development. The EAC believes it
will prove sound and effective in
Europe, as well.”
B
Alternatives I09
CPK Institute for Dispute Kesrilutiriii
CPR EUROPEAN ADVISORY
COMMITTEE AND MEMBERS
bA C (~liairmnn
BEAT HESS
JACQUES H . SCHRAVEN
Senior Vice Presidat and Cmeral Counsd,
Aspa Brorun Bourn’ I,td., Zurirh
Ixgal I)irpCtaq Shell Intmational,
The Hape/I,ondon
IAN HUNTER, QC
LAURIE ADAMS
Londotl
Citibank, N.A., London
G. J O H N KENDALL
JOSE MARIA ALONSO
J. &’A. Garripes, hhdiid
H ANS BAGNER
A l h &’ 071ery, London
Vingp, Storkholm
RICHARD H . KREINDLER
jones, Day, Reaiiis & Pope, Frankfurt
WINGOLF R. LACHMANN
AXEL H . BAUM
General Counsel, Esso A.G., Hamburg
HtrgIws Hubbard &’ R P P ~
Paris
,
GIANNI MANCA
PETER B.P. BEVAN
fiergrossi Vilh Manra Grazinda’, Edinburgh
illlfl K o m
Group General Counsel, The Bntish I’etrolpum
(hmpany, London
ARTHUR L. MARRIOTT
CLAES BEYER
W i l i w C u t h &’ Pickering, London
Man nlm’mr Sumrtliiig Advokntbp, (hlrborg
G.S. PAUL MITCHARD
Simmons W Simmons, London
MICHAEL MORRIS
MARC BLESSING
Rrii-&‘ Karrer; Zurii:li
MATTHIEU DE BOISSESON
Darrois Villq‘ Maillot Brorliio; Paris
STEPHEN R. B O N D
White &‘ Case, Paris
Director of Law Departmat, MotoIola Iiinitpd,
Bprhhire
ROGER MYDDELTON
C;rUip Ixgal Director and Serretary
CHRISTIAN BOUCKAERT
(hand Metropolitan, I.ondon
jpantet W Associb, Paris
C A R L 0 PAVES10
ROBERT R. BRINER
Imt W Staehelin, Gwmiri
CHALMERS CARR
Brosio, Crrsati P Assoriati, Turin
Chmip Ixgul Adviser; HSHC Holding$, I’ondon
EILEEN CARROLL
Howard Kennedy, I’ondon
STUART P. CHALFEN
The Solicitor; B.A.7: Industries, Lonilon
J O H N F. CRAWFORD
Jones, Day, Reairis &‘ P o p e , Paris
BERNARD0 M. CREMADES
J. y B. Cremrule.sy Asorirulos, Madrid
DAVID DAVIES
Chip/ Counsel, Philip hhms I:‘iiri$w S. A , ,
Lausannp
GIUSEPPE DE PALMA
Cmeral Counsel, Esso Italiana S.P.A., Konw
O . L . O . DE WITT WIJNEN
Nauta Dutilh, Rothdam
LUC DEMEYERE
Lwff Ckqs Verbeke, Antwerp
COLIN N . D O D D
Shadbolt &‘ Cornpan?. S i i r r q
CHARLES P. D O D S O N
I.oiid1 White Durmnt, I.ondon
A . JAN A.J. EIJSBOUTS
Senior Counsel, Akzo Nobel N. V , Anihvln
STEVEN EULLER
General Counsel, Cargill Europe, Surrq
JEAN-CLAUDE GOLDSMITH
J. C. CoUvnith et Assorips, Paris
DR. H A N N O GOLTZ
FRANCISCO A. PENA
(;Oma-ArpboW Pomba, Madrid
PIERRE RAOUL-DUVAL
Gi& Loyrette Noud, Paris
HARALD RIEGER
General Counsel, MetallgesellschaJt AG.
Frankfurt
JORG SCHMEDING
Fwidm.sm I.aul~ Srherzberg W Ohlp Hrinspn
Eruerwahn, Hamburg
ISAAC SHAPIRO
Skaddm, A@, Slate? Meagher &’Flom, Paris
LUCIEN SIMONT
Stibbt Simont Monahan Duhot, Bmssek
GORDON D . TANNER
Collin$ I h y h n d &’ Thorowpod, Oxon
RENE VAN ROOIJ
Senior Legal Advisor; Shell International
Petrohim Campany, London
V. V. VEEDER, QC
London
FRANCOIS VINCKE
Swretairp Gmeral, Petrofna S.A , , Bruss~Ls
PlET A. WACKIE EYSTEN
UPBrauw Bkirkstow Weslbrwk, The H a p e
HEIN VAN DE WAL
Company Secretary/Head k g a 1 Department,
BaUast Nedham, Amsteluea
WERNER WENGER
Wager Mathvs Plattner; Base1
STEPHEN G. WILLIAMS
Group Secretary and Chief IAgal Ofji-o;
Oppahoff&’ Kiidlpt; C o l n p
U n i k q London
TH O MAS J . HANDLER
Baker W MrKarie. London
A N T O N Y M . D . WlLLlS
Cl#ord Chance, London
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