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CPR releases a new expedited construction arbitration procedure.

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Alternatives
TO THE HIGH COST OF LITIGATION
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publisher:
Susan E. Lewis
John Wiley & Sons, Inc.
Editor:
Russ Bleemer
VOL. 24 NO. 7 JULY/AUGUST 2006
Jossey-Bass Editor:
David Famiano
Production Editor:
Chris Gage
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 © 2006 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.
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 $215.00 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.
114 ALTERNATIVES
VOL. 24 NO. 7 JULY/AUGUST 2006
CPR NEWS • CPR NEWS • CPR NEWS
serve parties’ rights and autonomy.
They encourage arbitrator control and
foster “compressed time frames to bring
about sought-after speed and reduced
expense.”
At June’s 2006 Spring Meeting in AtParties still may modify the rules, the
lanta, the International Institute for
introductory materials state, but “the inConflict Prevent released its new Rules
tent is to retain an expeditious process.”
for Expedited Arbitration of ConstrucThe process encompasses four parts:
tion Disputes.
General and Introductory Rules; Rules
A 23-member Drafting Subcommitwith Respect to the Tribunal; Rules with
tee of the CPR Institute’s Construction
Respect to the Pre-hearing
Advisory Committee proConference and Conduct of
duced the procedure, which
the Arbitral Proceedings,
complies with the principles
ADR RULES &
and Miscellaneous Rules.
of CPR’s Nonadministered
The procedure comprises 21
Arbitration Rules. The new
PROCEDURES
rules over the four parts.
rules will be posted soon on
In addition, the expedited
CPR’s Web site at www.construction arbitration rules
cpradr.org.
are accompanied by three standard conThe rules emanate, according to the
tract provisions that can be adapted to
introduction, from CPR’s observance of
users’ contracts. The model provisions inthe speedy United Kingdom construction
clude a predispute clause, a clause instiadjudication process. It “propelled CPR
tuting the use of CPR’s Arbitration Apto challenge the existing American strucpeal Procedure, and a clause for submisture and develop an expedited arbitration
sion to arbitration of an existing dispute.
procedure for construction disputes cenThe Drafting Subcommittee is
tered on a 100-day hearing time frame,”
chaired by Jesse B. Grove III, a partner in
according to the introduction.
the New York office of Thelen, Reid &
The new CPR expedited rules state
Priest LLP. CPR Senior Consultant
that they retain “the hallmarks historiCathy Cronin-Harris is the subcommitcally associated with arbitration: a fair,
Q
tee’s CPR Staff Director.
expeditious, private and less expensive
process than litigation.” But they also
(continued on page 126)
contain protections designed to pre-
CPR RELEASES A NEW
EXPEDITED CONSTRUCTION
ARBITRATION PROCEDURE
Alternatives
TO THE HIGH COST OF LITIGATION
Publisher:
Susan E. Lewis
John Wiley & Sons, Inc.
Editor:
Russ Bleemer
Editorial Board
JOHN J. BOUMA
Snell & Wilmer
Phoenix
JAMIE BRODER
Paul, Hastings, Janofsky
& Walker
Los Angeles
A. STEPHENS CLAY
Kilpatrick Stockton
Atlanta
CATHY A. COSTANTINO
CARRIE MENKELMEADOW
Georgetown University
Law Center
Washington, D.C.
ROBERT H. MNOOKIN
Harvard Law School
Cambridge, Mass.
PAUL J. MODE JR.
Citigroup
New York
Federal Deposit
Insurance Corp.
Washington, D.C.
JAMES M. RINGER
ROBERT A. CREO
A. JAMES
ROBERTSON II
Impartial Dispute
Resolution Services
Pittsburgh
LAURA EFFEL
Larkspur, Calif.
LAWRENCE J. FOX
Drinker, Biddle & Reath
Philadelphia
MARC GALANTER
University of Wisconsin
Law School
Madison, Wis.
WHITMORE GRAY
Fordham University School
of Law/University of
Michigan Law School
New York
JEFF KICHAVEN
Clifford Chance
New York
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
FRANK E.A. SANDER
Harvard Law School
Cambridge, Mass.
IRENE C. WARSHAUER
Fried & Epstein
New York
MELVYN I. WEISS
Jeff Kichaven, A Professional Milberg Weiss Bershad
& Schulman
Corporation
New York
Los Angeles
JEFFREY KRIVIS
ROBERT S. WHITMAN
First Mediation Corp.
Los Angeles
Orrick, Herrington &
Sutcliffe
New York
HARRY N.
MAZADOORIAN
GERALD R. WILLIAMS
Quinnipiac Law School
Hamden, Conn.
J. Reuben Clark Law School
Brigham Young University
Provo, Utah
Jossey-Bass Editor:
David Famiano
Production Editor:
Chris Gage
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 © 2006 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.
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 $215.00 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
126 ALTERNATIVES
VOL. 24 NO. 7 JULY/AUGUST 2006
ADR BRIEF • ADR BRIEF • ADR BRIEF
(continued from previous page)
inquiry to caucus negotiation, and excluding mediators’ actions, was a measured
move, he explains. The committee, says
Dunn, wanted to “take one step at a time
without leaping across the chasm,”
adding, “it wouldn’t surprise me if that the
subject might be addressed at some point.”
Michael Moffitt, who also is associate
director of the Appropriate Dispute Resolution Center at the Oregon law school,
says that the Rule 8.4 analysis—the general standard on lawyer conduct—is interesting, in that the opinion indicates that
Rule 4.1, the negotiation rule, seems to
trump it. “The only possibility they leave
open for [Rule 8.4] meaning anything at
all,” says Moffitt, “is that it works on
lawyers in a nonrepresentative capacity.”
That, Moffitt predicts, will be interpreted
to mean lawyers acting as neutrals to some
in the mediation community. By extension, he says, it would result in lawyers being subject to a different standard than
other mediators.
Moffitt explains that under the opinion, Rule 8.4 might prevent attorney-mediators from acting with deceit. “If so,
then attorneys out there are violating their
professional ethics codes,” he says. “We’re
not talking out of school here. Some mediators act with deception.”
William Dunn counters that “the fact
that you’re involved in mediation isn’t a license to mislead or misrepresent in any fashion more than you can in normal puffingtype statements in any negotiation,” which
he says are effectively limited by Rule 4.1.
Ultimately, while the opinion “doesn’t
change much,” Michael Moffitt says, “ I’m
not sure it is as straightforward as it looks
on its face.”
***
For more, see the cover story in this
month’s issue, “Back to Deception:
'Winning' Mediation Cases by Understanding Body Language.” In a
page 122 sidebar, authors Jeffrey
Krivis and Mariam Zadeh discuss the
new Formal Opinion 06-439.
Q
DOI 10.1002/alt.20138
(For bulk reprints of this article,
please call (201) 748-8789.)
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
•
(continued from page 114)
DRAFTER’S GUIDE IS RELEASED;
MEMBERS GET 40%
MASTER GUIDES’ DISCOUNT
CPR’s updated drafting guide has been
released, and all four volumes in CPR’s
new Master Guide series are available at a
special 40% discount for CPR members.
“Drafting Dispute Resolution Clauses
—2006 Revision of Drafter’s Deskbook”
is targeted to the needs of business attorneys—but can be used by anyone drafting
legal documents. It focuses on businessto-business dispute resolution clauses. It
provides:
•
•
A practice-oriented description of
common alternative dispute resolution processes geared toward transactional and business lawyers.
Accessible and sophisticated information on predispute clause drafting, with
an emphasis on alternative dispute resolution processes and multistep clauses.
More than 35 dispute resolution clauses from more than 20 companies.
The 2006 version has been revamped
and updated by Helena Tavares Erickson,
CPR’s senior vice president for committees, research, and education. The original 2002 book was written by former
CPR Senior Vice President Kathleen M.
Scanlon, now special counsel at Heller
Ehrman LLP in New York.
The new version includes case law updates. It also advances the science of drafting alternative dispute resolution contract
clauses by updating the 2002 models, and
providing new clauses actually used by
global companies and law firms.
Credit card orders can be placed at
www.cpradr.org. “Drafting Dispute Resolution Clauses” costs $125, but after logging into the Web site, CPR members automatically will receive a $75 price, a
40% discount.
The drafting book is the fourth in
CPR’s new series, the “Master Guides on
Conflict Prevention and Resolution—
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
Better Solutions for Business.” CPR
members also will receive 40% discounts
on the other new guides at www.cpradr.org.
The drafting book joins "Avoiding
and Resolving Information Technology
Disputes," a December offering that
helps IT contract parties to increase the
likelihood of their project's success, and
reduce the cost by preparing for conflict
and being ready to cure problems if they
appear.
Released late last fall, the other two
volumes were "Commercial Mediation in
Europe," and "Patent Mediation." More
information can be found at the CPR
Web site.
The Master Guides provide practical
value for corporate counsel, senior
lawyers, judges, and scholars. Each book
focuses on a particular industry or practice area. They are designed to help members of the bar master the complexities of
conflict resolution issues. CPR has developed these books as part of its role as
global advocate and resource for effective
VOL. 24 NO. 7 JULY/AUGUST 2006
ALTERNATIVES 127
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
ways of managing and resolving business disputes.
Q
‘TOP TEN’ TRAINING—
ALSO WITH A BIG
MEMBERS’ DISCOUNT
The CPR Institute has announced a new
training course, the “Top Ten Developments in International Arbitration,
2004–2006."
The course is available for presentation to CPR members at a 50% discount.
Top Ten Developments is a one-anda-half hour course that surveys major
U.S. case law, statutes, and ethics standards in international arbitration in the
past two years. Attendees will learn about
developments regarding removal of cases
under the U.N. Convention, changes in
rules regarding provisional remedies, and
other recent trends.
CPR is 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). CPR will provide
1.5 hours of New York CLE Skills credit
for completing the course.
The price for CPR member organiza-
ing, education, and advocacy among
our European membership base. The
breadth and depth of experience that
these opportunities provide would be
important components to a European
meeting agenda. If we were to meet in
fall 2006, we would not yet have the
complete practical experience. Moving the meeting to spring 2007 will
allow us that complete experience.
Therefore (while we do not like making large meeting adjustments) we
have decided that it is more important to provide the richest agenda
possible. Moreover, we believe that
including the “lessons learned” from
our expanded European activity will
ensure a very well-attended meeting
in 2007.
tions is $1,000, and the price for nonmembers is $2,000.
To schedule a training at your firm or
company, contact CPR Senior Vice President Helena Tavares Erickson, at herickson@cpradr.org, or (212) 949-6490.
For information on other CPR
training offers and scheduled sessions,
click on the link at www.cpradr.org for
“CLE & Training Programs In-House
Q
and Online.”
CPR’S 2006
FALL MEETING
HAS BEEN MOVED
TO NEXT YEAR
The CPR Fall Meeting scheduled for October 2006 in Paris has been postponed
to May 2007.
This is a strategic move for CPR, according to Acting President F. Peter
Phillips. He stated in an E-mail to members in announcing the rescheduling earlier this year,
As we increase our effectiveness
among legal leaders overseas, we have
been presented with a number of recent opportunities to engage in train-
HERE’S HOW TO GET
ALTERNATIVES
Free for CPR Institute members in
Members Only:
• www.cpradr.org
Subscribe to Alternatives:
• www.InterScience.Wiley.com
• 1-888-378-2537
The May 2007 meeting will still be
held at the Westin, formerly the InterContinental Hotel, near the Place Vendome and Tivoli Gardens in Paris.
More information about registration
will be available later this year at the
“CPR Meetings Worldwide” link at
Q
www.cpradr.org.
DOI 10.1002/alt.20135
(For bulk reprints of this article,
please call (201) 748-8789.)
Altern
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Alternatives DOI: 10.1002/alt
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