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CPR meeting survey finds mediation is top ADR choice.

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98 ALTERNATIVES
VOL. 25 NO. 6
CPR NEWS • CPR NEWS • CPR NEWS
Editorial Board
KATHLEEN A. BRYAN
CPR MEETING SURVEY
FINDS MEDIATION IS
TOP ADR CHOICE
stands the value of the ADR tools available to them. More importantly, they actually use them.”
Other results included:
Mediation is the most preferred form of
ADR, according to an International Institute for Conflict Prevention and Resolution survey released in April.
Asked to rank ADR techniques
adopted in their organizations over the
past three years, survey respondents overall rated mediation highest. Corporate
counsel ranked mediation and early case
assessment equally, but law firm respondents preferred mediation to early case
assessment, as well as other ADR methods that were the subjects of the survey—
arbitration, multistep ADR clauses, internal ADR training, and ADR training for
business clients.
The CPR Institute Survey on Alternative Dispute Resolution Trends tallies
the results of responses by 126 attendees
at CPR’s Annual Meeting in New York
on Jan. 18-19. It requested that the
group—made up of senior in-house
counsel and law firm attorneys—rank
their answers on a one-to-five scale.
“The results of this survey confirm
that mediation remains a dominant feature in the legal landscape,” said CPR
Chief Executive Officer Kathleen A.
Bryan, who also is publisher of this
newsletter. “[C]orporate counsel under-
Alternatives
TO THE HIGH COST OF LITIGATION
•
•
•
•
The top reason respondents preferred
mediation was for the process’s cost
savings, which received the highest
rating of any survey answer, at an average of 4.30 out of five.
Corporate counsel and law firm attorneys diverged most prominently in
the reasons they gave for not choosing mediation. The most frequent
reasons for in-house attorneys were
the fear of disclosing strategy (an average of 2.33), followed closely by
time (2.29), conveying weakness
(1.95), and, finally, costs (1.76). But
law firm attorneys said they avoid
mediation most often because it conveys weakness (2.97), and their second-place reason, disclosing strategy
(2.54), also exceeded the top response
by corporate counsel.
The highest-rated benefits of arbitration, for both corporate counsel and
law firm attorneys, were finality, followed closely by confidentiality, and, in
declining ratings’ order, enforcement,
results, reduced discovery, speed, cost
savings, and preserving relationships.
The biggest reason corporate attor(continued on page 111)
Publishers:
Kathleen A. Bryan
International Institute for
Conflict Prevention and Resolution
Susan E. Lewis
John Wiley & Sons, Inc.
JUNE 2007
Chair, Editorial Board
CPR Institute
New York
JOHN J. BOUMA
Snell & Wilmer
Phoenix
JAMIE BRODER
Paul, Hastings, Janofsky
& Walker
Los Angeles
A. STEPHENS CLAY
Kilpatrick Stockton
Atlanta
CATHY A. COSTANTINO
Federal Deposit
Insurance Corp.
Washington, D.C.
ROBERT A. CREO
Impartial Dispute
Resolution Services
Pittsburgh
LAURA EFFEL
Larkspur, Calif.
LAWRENCE J. FOX
Drinker, Biddle & Reath
Philadelphia
MARC GALANTER
CARRIE MENKELMEADOW
Georgetown University
Law Center
Washington, D.C.
ROBERT H. MNOOKIN
Harvard Law School
Cambridge, Mass.
PAUL J. MODE JR.
Citigroup
New York
JAMES M. RINGER
Clifford Chance
New York
A. JAMES
ROBERTSON II
Superior Court of California
San Francisco
NANCY ROGERS
Ohio State University
College of Law
Columbus, Ohio
DAVID L. SANDBORG
City University
of Hong Kong
Hong Kong
University of Wisconsin
Law School
Madison, Wis.
FRANK E.A. SANDER
WHITMORE GRAY
IRENE C. WARSHAUER
Fordham University School
of Law/University of
Michigan Law School
New York
Harvard Law School
Cambridge, Mass.
Fried & Epstein
New York
MELVYN I. WEISS
Milberg Weiss Bershad
Jeff Kichaven, A Professional & Schulman
New York
Corporation
Los Angeles
JEFF KICHAVEN
ROBERT S. WHITMAN
JEFFREY KRIVIS
First Mediation Corp.
Los Angeles
HARRY N.
MAZADOORIAN
Quinnipiac Law School
Hamden, Conn.
Orrick, Herrington &
Sutcliffe
New York
GERALD R. WILLIAMS
J. Reuben Clark Law School
Brigham Young University
Provo, Utah
Editor:
Russ Bleemer
Jossey-Bass Editor:
David Famiano
Production Editor:
Ross Horowitz
Alternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute for
Conflict Prevention & Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.
Editorial correspondence should be addressed to Alternatives, International Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York,
NY 10022; E-mail: alternatives@cpradr.org.
Copyright © 2007 International Institute for Conflict Prevention & Resolution. All rights reserved. Reproduction or translation of any part of this work beyond that
permitted by Sections 7 or 8 of the 1976 United States Copyright Act without permission of the copyright owner is unlawful. Request for permission or further information should be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030-5774; tel: 201.748.6011, fax:
201.748.6008; or visit www.wiley.com/go/permissions. Wiley Bicentennial Logo: Richard J. Pacifico.
For reprint inquiries or to order reprints please call 201.748.8789 or E-mail reprints@wiley.com.
The annual subscription price is $190.00 for individuals and $235.00 for institutions. International Institute for Conflict Prevention & Resolution members receive
Alternatives to the High Cost of Litigation as a benefit of membership. Members’ changes in address should be sent to Membership and Administration, International
Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York, NY 10022. Tel: 212.949.6490, fax: 212.949.8859; e-mail: info@cpradr.org.
To order, please contact Customer Service at the address below, tel: 888.378.2537, or fax: 888.481.2665; E-mail: jbsubs@josseybass.com. POSTMASTER: Send address
changes to Alternatives to the High Cost of Litigation, Jossey-Bass, 989 Market Street, 5th Floor, San Francisco, CA 94103-1741.
Visit the Jossey-Bass Web site at www.josseybass.com. Visit the International Institute for Conflict Prevention & Resolution Web site at www.cpradr.org.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
VOL. 25 NO. 6
JUNE 2007
ALTERNATIVES 111
ADR BRIEFS • ADR BRIEFS • ADR BRIEFS
judges entered the private practice of
law (presumably at much higher
salaries). Two judges resigned to become corporate in-house counsels. One
judge resigned to accept a state judicial
appointment (at a higher salary). Another judge retired to accept an appointment to a quasi-governmental position. One judge recently announced
his resignation to accept an appointment in higher education. One judge
resigned to accept an appointment in
the executive branch of government.
Smith echoes her current employer’s
position on JAMS’ role in luring judges.
“We all left after having reached retirement
age, [with] some staying on past that.
Some [were on] senior status far longer
than I was. I don’t know of any federal
judge at JAMS who had not reached the eligibility-for-retirement age.” Smith left the
Federal Judicial Center in 2003, after four
years, and returned to California’s Northern District court in San Francisco, on senior status, before becoming a full-time
JAMS neutral in 2005.
Alito concluded his testimony by noting,
I come here not as one primarily telling
you to recommend more money, but as
one suggesting to you that the judges
we have are worth keeping. In closing,
I hope you will consider the following:
(1) Is the current judicial salary fair?
(2) Does it aid in maintaining judicial
independence?; and (3) Does the current judicial salary-fixing process improve and not diminish the Third
Branch of government?
The full text of Alito’s comments can
be found here: http://judiciary.house.gov/
OversightTestimony.aspx?ID=830.
Associate Justice Stephen G. Breyer testified on the same day before the House
subcommittee. A complete text can be
found at http://judiciary.house.gov/media/pdfs/Breyer070419.pdf. Though he
didn’t single out ADR providers by name,
he cited the same statistics invoked by Justice Kennedy in February:
. . . [S]ince just last year, ten Article III
judges have departed from the bench.
Seven of those ten judges sought employment in other sectors of the legal
community. This is not a one-year blip.
Indeed, in 2005, nine Article III judges
departed from the bench. Four of the
nine joined a private firm that provides
arbitration and mediation services.
“The judges I know loved being on the
courts,” says Fern Smith, “I don’t think any
of us used the work as a stepping stone.” DOI 10.1002/alt.20185
(For bulk reprints of this article,
please call (201) 748-8789.)
(continued from previous page)
CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 98)
•
neys declined to use arbitration was
the prospect of challenges and appeals. But the top-rated reason for
refusing arbitration for law firm attorneys was the result. Trailing in
both respondents’ categories for refusing to use arbitration was cost
and time considerations.
Companies are more likely to track
ADR results, with 48% saying they
track metrics. Only 10% of law
firms said they chart the results.
The survey was discussed in an
April 27 article in the National Law
Journal, and late last month in the
New York Law Journal.
SPRING AND SUMMER
CPR TRAINING EVENTS
The CPR Institute has a full slate of
Spring and Summer 2007 training
programs.
First, there are still slots available at
press time for CPR’s ADR Ethics continuing legal education presentation.
On June 12, CPR Senior Vice
President Helena Tavares Erickson will
conduct “Excellence in ADR Ethics,”
at the CPR Institute’s offices at 575
Lexington Ave., in New York.
The brown-bag lunch session will
provide three hours of Ethics credits
under New York State CLE Board
Rules. The CPR Institute has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of continuing legal
education in the state of New York
[July 2004 - July 2007].
The cost is $275 for individuals at
CPR member organizations, and $385
for nonmembers. Registration available at www.cpradr.org or by phone at
(212) 949-6490.
Due to demand, CPR plans to repeat this training on July 26 and Nov
8. Register early for your session to assure a spot.
***
On June 28-29, CPR will host “Court
Mediator Training” at its New York offices. Successful completion of the
training satisfies the training requirements of the mediation program at the
U.S. District Court for New York’s
Southern District.
Longtime CPR trainer Margaret
Shaw, of New York, who has been a
neutral with national ADR provider
JAMS since the firm she co-founded,
ADR Associates, merged with JAMS
three years ago, will repeat a successful, sold-out training conducted at
CPR last fall.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on next page)
112 ALTERNATIVES
VOL. 25 NO. 6
JUNE 2007
CPR NEWS • CPR NEWS • CPR NEWS
(continued from previous page)
Shaw is a fellow of the College of
Labor and Employment Lawyers and
an adjunct professor at the New York
University School of Law
The agenda is available at the lefthand column link, “CLE & Training
Programs In- House and Online,” at
the CPR Institute’s Web site. The cost
for the training is $995.
***
CPR Senior Consultant Catherine
Cronin-Harris will conduct “Presenting Effective Opening Statements in
Mediation,” at the CPR Institute’s offices on July 18.
The session will provide three
Skills credits under New York State
CLE Board rules. The training will be
presented in a hands-on interactive
format. It will explore options in presenting mediation opening statements,
and help participants understand the
tools that can minimize resistance to
problem-solving dialogue and settlement.
The training will be conducted
from 4:30 p.m. to 7 p.m. The cost is
$295 for individuals at CPR members,
and $395 for nonmembers.
ADR DIVERSITY SURVEY
POSTED ON THE WEB
A new ADR Diversity Survey, from the
CPR Institute’s National Task Force on
Diversity in ADR has been posted on
CPR’s home page at www.cpradr.org
(direct link: www.cpradr.org/pdfs/DiversitySurvey_Apr07.pdf ).
The survey, intended to be given to
law firms by corporate clients, solicits
an audit of firms’ ability to deploy
ADR processes, and their practices in
staffing negotiation, mediation, arbitration, and litigation matters with
women and minorities.
The CPR Institute and the task
force are offering the survey as a model to corporations seeking measurements on professional women and minority ADR participation, and to establish a benchmark against which
future participation can be measured.
The survey also serves as an expression
of corporate clients’ expectations that
such participation will increase.
The survey can be used by companies in law firm audits; internal legal
department audits; project RFPs, or
other applications. In her introduction, CPR President Kathy Bryan
notes that the survey is “a practical
tool to bring the attention of a company’s partners, vendors and affiliates to
the challenge of broadening the pool
of professionals involved in conflict
management and dispute resolution,
on the premise that wider ranges of approaches will yield better outcomes.”
The survey is the task force’s first
product. The CPR Institute convened
the task force last year to provide a forum for corporate and legal leadership
to advocate the greater use of diverse
mediators, arbitrators, advocates, and
counselors.
CPR ON THE PODIUM
CPR Senior Vice President F. Peter
Phillips spoke last month at the third
national Conference of Minority Professionals in Alternative Dispute Resolution. The May 16-18 event, preceded by a day of training sessions, was
held in Columbus, Ohio, and hosted
by Capital University Law School.
Philips spoke as one of the presenters in a conference section on access
and opportunities. His topic reflected
work on CPR’s diversity efforts, for
which he has spearheaded publicity efforts. Phillips’ talk was titled “Diversity Initiatives of the International Institute for Conflict Prevention & Resolution (CPR): Linking Corporate ADR
Opportunities.”
***
CPR Senior Consultant Catherine
Cronin-Harris appeared at two significant ADR events last month.
Cronin-Harris covered ADR ethics
in two sessions at the May 7-8 International Franchise Association’s 40th Annual Legal Symposium at the Capitol
Hilton in Washington, D.C. The continuing legal education event included
a state-of-the-law report on conflict
resolution ethical dilemmas, as well as
provided information for new franchise professionals.
She also joined a five-member panel at the New Jersey State Bar Association annual convention in Atlantic
City on May 20, titled “ADR Is Here!!!
Are You Ready?”
Cronin-Harris’s segment focused
on errors to avoid in negotiated segments of mediation representation.
The session discussed differences in
ADR forums and providers, so she also
covered CPR products and services. DOI 10.1002/alt.20183
(For bulk reprints of this article,
please call (201) 748-8789.)
CORRECTION
Editor Russ Bleemer misidentified
the position and employer for one
of the officials commenting on the
new federal ADR report issued by
the U.S. Justice Department discussed in last month’s ADR Briefs
column, “With Mediation Leading
the Way, Justice Department Readies Progress Report Touting Big
ADR Savings.” See 25 Alternatives
90 (May 2007). The correct title
and affiliation for Anthony N. Palladino is Associate Chief Counsel
& Director, Office of Dispute Resolution for Acquisition at the Federal Aviation Administration. Alternatives apologizes for the error.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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