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CPR will be honored next month at a Los Angeles dinner.

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Alternatives
TO THE HIGH COST OF LITIGATION
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publishers:
Kathleen A. Bryan
International Institute for
Conflict Prevention and Resolution
Susan E. Lewis
John Wiley & Sons, Inc.
VOL. 27 NO. 4 APRIL 2009
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 © 2009 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 $275.00 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.
66 Alternatives
vol. 27 no. 4
CPR NEWS • CPR NEWS • CPR NEWS
CPR WILL BE HONORED
NEXT MONTH AT A
LOS ANGELES DINNER
The Los Angeles County Bar Association’s
Dispute Resolution Services will honor the
CPR Institute at its 16th Annual Awards
Dinner next month.
The dinner will be held on May 5 at 7
p.m., preceded by a one-hour reception, at
the Omni Los Angeles Hotel at California
Plaza on South Olive St.
The corporate ADR award is scheduled
to be presented to the CPR Institute for
its work in the commercial ADR field.
William H. Webster, on behalf of the LA
Bar’s DRS, will present the award to CPR
Institute President Kathy Bryan.
Webster is vice chairman of the CPR
board, and former director of the U.S. Federal Bureau of Investigation and the Central
Intelligence Agency.
The DRS is a nonprofit corporation of
the Los Angeles County Bar Association
committed to promoting and providing
accessible and effective conflict resolution
services. DRS is a provider of mediation and
conflict resolution services in Los Angeles
County, as well as an advocate of community efforts to foster nonviolent, peaceful
resolutions to interpersonal conflicts, according to its website.
Other honorees at the gala include
Al­ter­na­tives
to the High Cost of Lit­i­ga­tion
Editorial Board
Academy Awards program producer Gilbert
Cates, who will be the keynoter and will receive the Louis M. Brown Conflict Prevention Award. Los Angeles Assistant Presiding
Judge Lee Smalley Edmon will be presented
with DRS’s Emil Gumpert Judicial Services
Award. And the Los Angeles law firm of
Phillips, Lerner, Lauzon & Jamra will receive the Griffin Bell Community Service
Award, recognizing the firm’s Adopt-ACenter Program (information on the program can be found here: www.plljlaw.com/
CM/Custom/Community.asp).
The special guest mistress of ceremonies
will be actress Alicia Silverstone.
For more information and reservations, go to www.lacba.org, or contact
Anita Almonte at aalmonte@lacba.org
or (213) 896-6537.
Q
Kathleen A. Bryan
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
Jackson Lewis LLP
Richmond, VA
Lawrence J. Fox
Drinker, Biddle & Reath
Philadelphia
FROM THE ANNUAL MEETING,
THE FINAL DONOR LIST
Marc Galanter
The following is the final list of supporters
of CPR’s 2009 Annual Meeting. The soldout event was held at Intercontinental-The
Barclay hotel in New York on Jan. 15-16.
University of Wisconsin
Law School
Madison, Wis.
Whitmore Gray
Fordham University School
of Law/University of
Michigan Law School
New York
• Allen & Overy
• JAMS
• Wilson Elser Moskowitz Edelman &
Jeff Kichaven
(continued on page 78)
Jeffrey KRIVIS
Publishers:
Kathleen A. Bryan
International Institute for
Conflict Prevention and Resolution
Susan E. Lewis
John Wiley & Sons, Inc.
april 2009
Harry N.
Mazadoorian
Quinnipiac Law School
Hamden, Conn.
Carrie MenkelMeadow
Georgetown University
Law Center
Washington, D.C.
Robert H. Mnookin
Harvard Law School
Cambridge, Mass.
Paul J. Mode Jr.
Citigroup
New York
Gerald F. Phillips
Los Angeles
James M. Ringer
Meister Seelig & Fein
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
Frank E.A. Sander
Harvard Law School
Cambridge, Mass.
Irene C. Warshauer
Office of Irene C. Warshauer
New York
Robert S. Whitman
Jeff Kichaven, A Professional Seyfarth Shaw LLP
Corporation
New York
Los Angeles
First Mediation Corp.
Los Angeles
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 © 2009 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. Indexed by Current Abstracts (EBSCO).
For reprint inquiries or to order reprints please call 201.748.8789 or E-mail reprints@wiley.com.
The annual subscription price is $199.00 for individuals and $275.00 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
78 Alternatives
vol. 27 no. 4
april 2009
CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 66)
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Dicker
Jack Levin, Covington & Burling
Freshfields Bruckhaus Deringer
Jeff Kichaven, Jeff Kichaven, APC/
Professional Mediation
McCarter & English
IBM Corp.
Crowell & Moring
Skadden, Arps, Slate, Meagher &
Flom
Proskauer Rose
Stradley Ronon Stevens & Young
Schnader Harrison Segal & Lewis
Feinberg Group
White & Case
Debevoise & Plimpton
Amgen Inc.
Connell Foley
Reed Smith
Renate Dendorfer, Heussen law firm
Annual Meeting coursebook donors
included Peter Michaelson, Michaelson &
Associates; Dechert LLP; Allen & Overy;
Hoguet Newman Regal & Kenney, and F.
Peter Phillips of Business Conflict Management LLC.
The CPR Institute thanks the sponsors for their support of the event. Watch
for an announcement soon on dates for
the 2010 meeting here in Alternatives’
monthly CPR News feature, and at www.
Q
cpradr.org.
FRANCHISE COMMITTEE
focuses on ITS NEW BOOK
The Steering Committee of the CPR
Franchise Mediation Program marked the
release of its new book, “Managing Franchise Relationships Through Mediation,”
with a San Diego meeting on Sunday,
Feb. 15, 2009.
Newly appointed co-chair John Kujawa, McDonalds vice president of franchising, presided at the meeting, which
was attended by representatives of 18
franchisers, franchisees and attorneys.
William G. Hall, of the Forth Worth,
Texas-based William G. Hall & Co.,
the committee’s second co-chair, also
participated by telephone.
The franchise mediation book, published by the CPR Institute, was debuted
at CPR’s Annual Meeting in January.
Copies were distributed to each committee
member in San Diego.
The book is aimed at enterprises seeking information on how decisions can be
made to manage disputes within franchise
systems in an economically rational way,
with an emphasis on maintaining and
enhancing relationships.
Kujawa stressed at the meeting that
the book will be useful to CEOs and
managers, as well as those charged with
managing systems and disputes that arise
within them, including outside counsel.
The committee had a frank discussion
about marketing the book, including the
book’s specific applications. It agreed to
appoint a marketing committee, and examine prospects for updated editions.
The book is available at www.cpradr.
org, and on Amazon.com.
Guest speaker Scott Slater Markus,
a veteran San Diego mediator, discussed
avoiding mistakes in mediation. He suggested that the parties discuss the process
fully with the mediator before the event to
avoid disagreements during the mediation.
Markus said that the parties should cover
meeting attendees; exchanging an initial
demand and offer, and ensuring that they
have enough information to evaluate the
case—and the mediator has enough information to discuss it.
At press time, the committee was considering a spring meeting date. For more
information, see www.franchisemediation.
org, or E-mail CPR liaison F. Peter Phillips at peter.phillips@businessconflictmanQ
agement.com.
NEW CLE SERIES
STARTS THIS MONTH:
CPR’S MASTER MEDIATOR
GOES ONLINE, FOR CREDIT
The CPR Institute is proud to announce
that longtime website contributor Robert
A. Creo, a veteran Pittsburgh neutral, will
launch a six-part series of live online train-
ing events on April 13 at WestLegalEdcenter.org.
Creo will present a variety of topics tied to his Master Mediator column,
which he has written for the CPR Institute
Web for more than three years. (The column is available under the News/Articles
tab at www.cpradr.org.)
The sessions will debut as live, interactive, online events, at noon, on six
Mondays between mid-April and July, at
three-week intervals. Soon after the webcast, the recordings will be archived for
on-demand, for-credit use.
The April 13 debut will focus on using
apologies in medical malpractice cases.
WestLegalEdcenter is an on-demand
continuing legal education provider with
which Alternatives publisher, the CPR
Institute, is a content provider. Individuals at CPR Institute member firms receive
a 25% discount by registering at the
WestLegalEdcenter site with their work
E-mail domains.
Creo has practiced as an arbitrator
and mediator for 30 years. He is an adjunct professor at Duquesne University
Law School and University of Pittsburgh
School of Law, both in Pittsburgh. He is a
founding member and former president of
the International Academy of Mediators.
Creo has spoken on CPR Institute
meeting panels on mediation practice, and
is Alternatives editorial board member.
***
Also: nine sessions from CPR’s Annual
Meeting in January were being posted
at WestLegalEdcenter.com at press time.
For details, see item below. The live event
was accredited only for New York state
CLE credit under New York State CLE
Board rules. But the on-demand web audio versions of the courses are accredited in
dozens of jurisdictions nationwide. Check
WestLegalEdcenter.com for full details.Q
MORE MEETING TALK:
EXCERPTS FROM
CPR’S 30TH ANNIVERSARY
The International Institute for Conflict
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
vol. 27 no. 4
april 2009
Alternatives 79
CPR NEWS • CPR NEWS • CPR NEWS
Prevention and Resolution’s 2009 Annual
Meeting on Jan. 15-16 commemorated
the 30th anniversary of the organization’s
founding. Sessions from the meeting, “Innovations in Dispute Resolution: Lessons
Learned and Predictions for the Future,”
are summarized below.
The keynote address from the meeting, by Kenneth Roth, executive director of
Human Rights Watch, a New York-based
nonprofit that monitors, documents, and
publicizes human rights violations worldwide,
was excerpted in CPR News last month. See
27 Alternatives 50 (2009).
The meeting was held at the Intercontinental–The Barclay hotel in New York City
on Jan. 15-16.
The meeting chairs were Benno Kimmelman, a partner in the New York office of
Allen & Overy in New York, and Beth Trent,
legal director at the Kenilworth, N.J., pharmaceutical company, Schering-Plough Corp.
The meeting sessions, which offered
New York state continuing legal education
credits, looked back on CPR’s history, but
also set out the path for improved commercial conflict resolution.
Nearly all the sessions at press time were
being posted at WestLegalEdcenter.com for
on-demand training. Individuals at CPR
members receive a 25% discount. See item
above for full details.
***
CPR Institute Board Chairman Charles
B. Renfrew, a San Francisco-based former
federal court judge, moderated the conference’s opening panel, “Perspectives from
the Past and Visions of the Future: The
ADR Journey.”
He returned to the beginnings of modern
commercial ADR growth in introducing the
panel: Renfrew touched on the emergence of
the multidoor courthouse first proposed by
Harvard University Law School Prof. Frank
Sander at a conference on improving the judicial system in 1976, and described the growth
of state programs and corporate use.
Renfrew’s panel included three ADR
authorities: W. Laurence Craig, a former
member of the ICC Court of Arbitration
and senior counsel in the Paris office of Orrick, Herrington & Sutcliffe.; Benjamin W.
Heineman Jr., former senior vice president
and general counsel at General Electric Co.,
and, leading off, James F. Henry, the CPR
Institute’s founder, who served as president
and chief executive officer for 20 years.
Henry said that there have been some
great strides made in reducing wasteful litigation. But he also declared that the fundamentals that encouraged early business ADR
development remain today, and provide a
strong argument for the expanded use and
application of conflict resolution.
First, Henry said that business executives caught in a long litigation still voice
“a universal refrain that there’s got to be a
better way.”
Second, he said, ADR now had the “wide
support” of “established” business and bar
leaders—a factor that has grown and “was
not always present at the beginning.” He said
this acceptance has been a foundation of commercial conflict resolution, and he attributed
it to the support of people who had served as
judges, like Renfrew. He also cited Joseph W.
Morris, a former U.S. District Court chief
judge and now a partner in the Tulsa, Okla.,
office of GableGotwals.
Third, said Henry, the “underlying correctness” of “results-oriented negotiation and
resolution,” as opposed to litigation wars,
continues as it was when the CPR Institute
opened its doors in 1979.
Panelist Laurence Craig said that the
unacceptability of “litigating in the other fellow’s courts” has been and continues to be the
source of the use and growth of international
arbitration. He said that parties complaining about soaring international arbitration
costs “never agree” to give the arbitrators the
power to deal with abuses. Nevertheless, he
said, the tribunal settings often are effective
in providing a justice system for the parties
using them.
Panelist Ben Heineman said General
Electric was an early supporter of CPR and
its efforts, and urged meeting attendees to
continue their support. He said that companies should try to drive disputes to conflict
resolution processes as early as possible.
Heineman, currently senior counsel at
WilmerHale in Washington, D.C., and a
senior fellow at Harvard University’s John
F. Kennedy School of Government as well
as Harvard Law School, discussed the U.S.
financial crisis as an illustration of the need
for sophisticated settlement practices. He
strongly advocated a focus on prevention, and
said that big cases need to examine causes of
the dispute to avoid recurrence. “We have a
failure of capitalism,” said Heineman. “We
are not balancing risk . . . and we are not
emphasizing integrity.”
The session ended with moderator Charles
Renfrew and Laurence Craig discussing international arbitration with the audience. “The
‘Americanization’ of arbitration in practice,”
said Craig, “particularly in discovery,” is having a negative effect on arbitration use.
***
The next panel, “A Business Perspective on
Dispute Resolution,” focused on big companies’ ADR systems. Janet Kloenhamer,
president of Allianz of America Resolution
Services, in Novato, Calif., and a CPR board
member, moderated the session.
Timothy H. Hart, vice president of financial and economic consulting services at
Huron Consulting Group in Washington,
D.C., opened with the perspective of a chief
financial officer. He said that companies can
make dealing with conflict a “core competency.” Where, for example, there are frequent
supply chain issues, the ability to smooth over
clashes with vendors “becomes an enormous
competitive advantage” over rivals stuck fighting out their issues in courts.
Panelist Edward T. Reilly, president and
CEO of the New York-based American Management Association, stressed precise documentation of the way the commercial relationship will address conflict. He agreed with
Hart that such processes can be “a great value
to the company.”
Hart said that chief financial officers must
assess a variety of factors in plotting their
dispute resolution strategies: the type of potential claimant or respondent; whether they
are preparing for a dispute with a customer or
a competitor; whether a continuing relationship will be at stake; budgets, and even the
individual CFO’s personality. Chief financial
officers “seldom get any credit for that dollar
saving to the company,” said Hart.
But the CFO has the “early potentially
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on next page)
80 Alternatives
vol. 27 no. 4
april 2009
CPR NEWS • CPR NEWS • CPR NEWS
(continued from previous page)
pivotal role by crafting solid and realistic
[ADR] processes,” said Hart, “with proper
supporting analysis.”
Panelist Judith Miller, senior vice
president and general counsel of Bechtel
Group Inc. in San Francisco, said the
construction company has had problems in arbitration. The process “hasn’t
delivered,” she said. “It has not lived up
to its reputation.”
She said that the “‘let-it-all-in-approach’ to evidence” has eviscerated arbitration’s expediency, and the costs are out
of proportion. She added that arbitrator’s
“good business knowledge” often is offset
by their lack of awareness “about governing legal principles.”
But Miller said that Bechtel still sticks
with arbitration for fundamental reasons:
finality, privacy, and “avoidance of the
‘hometown effect.’” She said, “It still has
good points.”
To counteract the negatives, Miller
said that her company is “rethinking arbitration in some jurisdictions,” and at
least considering litigating. She said it has
made arbitration contract clause drafting
adjustments intended to limit discovery
and expedite proceedings.
Miller recommended to the CPR
meeting audience to worry less about the
ability to vacate awards and more about
process efficiency. She said that techniques
need to be employed to move proceedings along, such as prehearing conferences
to create expedited discovery, particularly
with regard to E-discovery issues.
She suggested imposing reasonable
limits on depositions and E-discovery.
And she said to try to require all disclosures
before hearings start.
Panelist Clyde Lea, deputy general
counsel for litigation and environmental
matters of Houston-based ConocoPhillips Co., provided the corporate ADR
view from his litigation perspective. He
explained that his business objectives
include obtaining a fair and acceptable
outcome; using cost-effective processes;
producing a timely resolution with minimal collateral damages, and resulting in
an enforceable award.
Lea said that the factors that affect his
choice of an ADR process are (1) process
availability, (2) the amount in controversy,
(3) outcome predictability, (4) whether
the relationship is continuing or is based
on a single transaction, (5) the proceedings’ cost, (6) timeliness factors, and (7)
enforceability and finality.
***
Robert Mnookin, chairman of Harvard
University’s Program on Negotiation,
gave a provocative luncheon talk based
on a book he is working on, preliminarily titled, “Bargaining with the Devil . . .
and if so, how.” The book will examine
dealing with parties with whom it appears
negotiation is impossible.
He opened by noting that talking
about evil isn’t fashionable. “It smacks of
smugness and religious fundamentalism,”
he said. But he said evil isn’t “objectively
meaningless”—the Holocaust or the Sept.
11 attacks demonstrate that, he noted—
and is easy to identify on an international
level.
It’s harder, he said, to minimize that
characterization where you are talking
about bad actors on a micro level, such
as a joint venture partner who absconds
with intellectual property and top talent, or a sibling that tries to take away
an inheritance.
“It comes up all the time,” said
Mnookin. “Should you negotiate, or
should you resist?”
The responses to the question are contradictory, he explained. The first is that
you need to negotiate, since you can only
make peace with enemies, and negotiation
is better than war or litigation.
The second response, he said, is that
“certain kinds of adversaries” are “unworthy” of negotiation.
Mnookin said his book will explore
conflicts involving “demonization” on
one or both sides. It will offer an assessment based on inquiries of Star Trek’s
Mr. Spock, he said:
• What are my interests and the interests of the others?
• What are the alternatives to negotia-
tion?
• What are the potential negotiated
outcomes?
• What will the implementation consist of?
• What are the costs?
Mnookin advised that negotiation
processes involve avoidance—that is, not
falling into common traps. He prefaced the traps by noting that people
perceive reality two ways: intuitively,
which triggers instant responses, and in
a “Spock-like” manner—analytically and
systematically.
The traps that arise in processing a
situation include
• tribalism, where the other side is the
“outgroup” that shouldn’t be trusted;
• full-fledged demonization, where the
other side is not only evil, “but fundamentally bad to the core”;
• dehumanization, which he said is
associated with racism, where the
opponent is treated as an object;
• moralism and self-righteousness;
where the other side is seen as being
entirely at fault (“You see this all the
time in commercial disputes,” said
Mnookin);
• the zero-sum fallacy, which he said
is contrary to an “expand the pie”
negotiation mindset, and more like
“you-win-I-lose”;
• a fight-flight response, and
• the situation acts as a call-to-battle.
The answer to the question of whether to bargain with the devil, Mnookin
concluded, is “Not always—but more
often than you feel.”
Best practices include approaching
conflict with a presumption in favor of
negotiating, designing decision process
to avoid traps, and not to approach conflict with an either/or mandate.
***
More meeting highlights next month. Q
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
DOI 10.1002/alt.20272
(For bulk reprints of this article,
please call (201) 748-8789.)
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