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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. 11 DECEMBER 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 $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.
178 ALTERNATIVES
VOL. 24 NO. 11 DECEMBER 2006
CPR NEWS • CPR NEWS • CPR NEWS
CPR SETS AGENDA
FOR NEXT MONTH’S
MEMBERS’ MEETING
The CPR Institute will hold its Annual
Meeting at the Jumeirah Essex House in
New York next month. The meeting will
feature a mass participation exercise on
multiparty negotiations.
The two-day meeting—which will
provide attendees with New York state continuing legal education credit hours—will
open at 8:30 a.m. on Thursday, Jan. 18,
and will conclude at 1:00 p.m. on Jan. 19.
The Annual Meeting will be the first
presided over by Kathleen A. Bryan, who
joined CPR as its new president and chief
executive officer in the fall. She will moderate a corporate counsel roundtable session on the second day.
Registration information is available
at www.cpradr.org.
In addition, CPR is repeating its successful advanced mediator and advocate
training, first offered at last year’s annual
meeting. The training will be held in New
York before the meeting, on Jan. 16-17.
Discounts are available for joint registration for both the training and the
meeting. Information on discounts, as
well as registration, is available at www.cpradr.org/am07/training.
This annual meeting features a
provocative new format: a hands-on exercise in which participants will assume
Alternatives
TO THE HIGH COST OF LITIGATION
Editorial Board
roles and act out a challenging multiparty
negotiation, the reconstruction of the
World Trade Center site.
In association with professionals
involved in the actual dispute, CPR is
devising a shared scenario and separate
instructions for the five main players:
the state agency/landowner; the city
government; private insurance companies; the leaseholder/developer, and the
victims’ families.
The teams will formulate a plan to
design and fund a multi-use development
on the site—one of the most valuable,
emotion-charged and contentious pieces
of real estate in the world. With the help
of professional facilitators, the entire
group will learn which team got the furthest, and why.
The sessions will include exercises in
multiparty negotiations, consensus-building, and value creation. The focus will be
on building skills for multiple-party dispute management and resolution.
CPR’s Awards for Excellence in ADR
also will be presented at a dinner at the
meeting.
CPR members may be able to invite a
corporate nonmember to introduce them
to CPR at no additional charge. For more
information on the guest program, contact
CPR Senior Vice President Beth Corman at
(212) 949-6490, or bcorman@cpradr.org.
(continued on page 190)
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.
Publisher:
Susan E. Lewis
John Wiley & Sons, Inc.
Jossey-Bass Editor:
David Famiano
Editor:
Russ Bleemer
Production Editor:
Chris Gage
J. Reuben Clark Law School
Brigham Young University
Provo, Utah
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 $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
190 ALTERNATIVES
VOL. 24 NO. 11 DECEMBER 2006
ADR BRIEF • ADR BRIEF • ADR BRIEF
(continued from previous page)
ties who understand how manage them.
The survey was conducted in August for
the consulting firm via telephone by Market
Measurement Inc., a research consulting
firm in Bingham Farms, Mich. It produced
results in several significant construction
areas, including costs, where it reports that
average price increases for the 166 public
owners were more than 16% over the past
year—about four times the inflation rate
The CPR Institute, which publishes
this newsletter with Jossey-Bass,
recently produced new Rules for
Expedited Arbitration of Construction Disputes, which also feature a
mediation component. Full details
are available in the CPR News colQ
umn below.
and nearly three percentage points greater
than last year’s escalation rate (13.2%).
The survey also finds that nearly half
of the public owners surveyed have implemented construction projects with energy
efficiency designs in the past year.
In early November, just before press
time, PinnacleOne was acquired by Arcadis,
an international consulting and engineering
firm based in Arnheim, the Netherlands.
DOI 10.1002/alt.20159
(For bulk reprints of this article,
please call (201) 748-8789.)
***
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 178)
•
•
•
•
•
•
Other meeting seminars include:
“Beyond Reason: Using Emotions as
You Negotiate”—In a session bearing
the title of his 2006 CPR book award
winner, coauthor Daniel L. Shapiro,
of Harvard Law School, will discuss
his research, and give guidance on
how practitioners can use emotional
insights as tools to obtain results.
“Hot Topics in Arbitration: Challenges in Award Enforcement”—A
five-member expert panel discusses
new cases and trends on issues including disclosure, sanctions, and parentsubsidiary relationships with regard to
awards.
“ADR in Bankruptcy”—CPR returns
to the topic in the wake of last year’s
rewrite of the Bankruptcy Code, covering the challenges that confront
practitioners.
Corporate Counsel Roundtable—
CPR President Bryan will discuss the
newest and most challenging issues
that confront legal and business leadership with a panel of Fortune 100
senior counsels.
“The Role of Insurers in Mediation”—A session on the critical mediation-table role of the indemnitor in
commercial matters.
“Measuring Predisposition to Conflict: The Thomas-Kilmann Conflict
Mode Instrument”—Meeting partici-
pants will have an opportunity to take
the Thomas-Kilmann test, which
assesses behavior in conflict situations,
and receive a profile indicating the
repertoire of skills that they can use in
conflict situations that they face.
At press time, the list of meeting sponsors included Amgen Inc., of Thousand
Oaks, Calif.; Houston-based Beirne, Maynard & Parsons LLP; Miami-based Greenberg Traurig LLP; Jeff Kichaven Mediation, of Los Angeles; New York’s Kelley
Drye & Warren LLP; McCarter & English LLP of Newark, N.J.; Shrewsbury,
N.J.’s Michaelson & Associates; Los Angeles-based O'Melveny & Myers LLP; New
York’s Proskauer Rose LLP, and Philadelphia-based Stradley Ronon Stevens &
Young LLP.
Highlights of past CPR meetings
Q
appear on page 182.
CPR RELEASES
A NEW EXPEDITED
CONSTRUCTION
ARBITRATION PROCEDURE
There are several innovations driving
CPR’s development of its new Rules for
Expedited Arbitration of Construction
Disputes. The rules have been designed
to minimize worksite interruptions, and
feature:
• Compressed time frames for steps
throughout the process;
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
•
A 100-day hearing window from preliminary hearing to the award’s
issuance, which includes 60 days for
discovery, and 30 days for hearing;
and
• Limited discovery, under which the
tribunal
conducts
document
exchanges and can make exclusions, as
well as contain discovery to include a
few days of depositions, one day for
expert depositions, and impose strict
E-discovery limits within a standard
of the “needs of the parties and expeditious, cost-effective discovery."
CPR debuted the expedited rules at its
June 2006 Spring Meeting in Atlanta.
A 23-member Drafting Subcommittee
of the CPR Institute's Construction Advisory Committee produced the procedure,
which complies with the principles of
CPR's Nonadministered Arbitration
Rules.
CPR rules can be found at the link for
Clauses, Rules, Codes and Procedures at
www.cpradr.org. (The direct link is
www.cpradr.org/Landing.asp?M=9.0).
The new expedited construction rules
emanate from CPR's observance of the
speedy United Kingdom construction
adjudication process, according to the
rules’ introduction. It “propelled CPR to
challenge the existing American structure
and develop an expedited arbitration
procedure for construction disputes centered on a 100-day hearing time frame.”
The CPR expedited rules state that they
VOL. 24 NO. 11 DECEMBER 2006
ALTERNATIVES 191
CPR NEWS • CPR NEWS • CPR NEWS
retain “the hallmarks historically associated with arbitration: a fair, expeditious,
private and less expensive process than
litigation.”
But they also embrace protections
that have been designed to preserve
parties' rights and autonomy. They
encourage arbitrator control and foster
“compressed time frames to bring
about sought-after speed and reduced
expense.”
Parties still may modify the rules,
the introductory materials state, but
“the intent is to retain an expeditious
process.”
In order to do that, the process contemplates the use of CPR services if the
parties get stuck. For example, it presumes the use of three arbitrators, with
one selected by each party and the third
selected by the first two arbitrators. But
in the predispute clause, parties may opt
to use one or three arbitrators, all
appointed by CPR, to expedite selection.
And if a party fails to comply with
its appointment obligations, CPR will
appoint arbitrators under tight time
frames.
In addition, the new expedited construction disputes rules require detailed
pleadings. The statement of claim and
statement of defense must include facts,
law, and documents, as well as the
names of experts and possible witnesses.
The Drafting Subcommittee is
chaired by Jesse B. Grove III, a partner
in the New York office of Thelen, Reid
& Priest LLP. CPR Senior Consultant
Cathy Cronin-Harris is the subcommittee's CPR Staff Director.
The subcommittee devised a fourpart process: General and Introductory
Rules; Rules with Respect to the Tribunal; Rules with Respect to the Prehearing Conference and Conduct of the
Arbitral Proceedings, and Miscellaneous
Rules. The procedure comprises 21
rules over the four parts.
The expedited construction arbitration rules also are accompanied by three
standard contract provisions that can be
adapted to users' contracts. The model
provisions include a predispute clause, a
clause instituting the use of CPR's Arbi-
tration Appeal Procedure, and a clause
for submission to arbitration of an
existing dispute. CPR’s private arbitration appeal option employs three former federal judges; the rules are available at the URL above.
The procedure has other unusual
and inventive protections. For example,
it allows respondents to “avoid ambush”
by filing a motion to extend the time to
respond, in lieu of a Notice of Defense,
if good cause exists. The motion delays
the commencement of the 100-day
period—but will not expand it.
The procedure also features:
•
•
•
•
Time-frame control: The tribunal
may direct the manner of use of
time at the hearing;
Subpoena enforcement: Any tribunal
member can conduct a hearing in
any location to enforce a subpoena;
Neutral experts’ expedition: The
arbitrators can consider appointment
of neutral experts to expedite the
process.
Mediation possibilities: The parties
can agree to interrupt the proceedings to pursue mediation at any
time. They also may have a separate
mediator sit in on the arbitration
proceedings in order to conduct
simultaneous mediation.
Finally, the expedited rules’ production was accompanied by an expansion
of CPR’s construction neutrals’ panel.
The panel now includes non-lawyers
who have committed to apply the rules’
time periods. This addresses one of the
main causes of delay, according to the
rules’ introduction, congested arbitrator
calendars.
More information on the CPR Construction Panel members of CPR’s Panels of Distinguished Neutrals is available at the CPR home page link to
“Finding a Mediator of Arbitrator.”
Access to names is restricted to CPR
members, who can search for neutrals
state-by-state.
Q
HERE’S HOW
TO GET
ALTERNATIVES
Free for CPR
members in
Members Only:
www.cpradr.org
Subscribe to
Alternatives:
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1-888-378-2537
Altern
atives
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DOI 10.1002/alt.20156
(For bulk reprints of this article,
please call (201) 748-8789.)
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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