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CPR's second European business mediation congress sets next month's agenda.

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Alternatives
TO THE HIGH COST OF LITIGATION
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
Alternatives
Publishers:
Thomas J. Stipanowich
International Institute for Conflict Prevention & Resolution
Editor:
Russ Bleemer
Susan E. Lewis
John Wiley & Sons, Inc.
Production Editor:
Chris Gage
VOL. 23 NO. 8 SEPTEMBER 2005
Jossey-Bass Editor:
David Famiano
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, 366 Madison Avenue, New York, NY 100173122; E-mail: alternatives@cpradr.org
Copyright © 2005 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 $215.00 for individuals and 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, 366 Madison Avenue, New York, NY 10017. 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.
ABOUT THE CPR INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
ORGANIZED BY PROMINENT CORPORATE COUNSEL, THE CPR
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION &
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 large companies, leading U.S. law
firms, academics and judges. See “Membership” at our Web site,
www.cpradr.org.
TO 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.
WOULD YOU LIKE FURTHER INFORMATION ABOUT CPR?
See our Web site at www.cpradr.org or complete this form:
Name:
Organization:
Title:
Address:
Telephone:
RETURN TO: Membership and Administration, CPR International Institute
for Conflict Prevention & Resolution, 366 Madison Avenue, New York, NY
10017. Tel: (212) 949-6490. Fax: (212) 949-8859. E-mail: info@cpradr.org
126 ALTERNATIVES
VOL. 23 NO. 8
CPR NEWS • CPR NEWS • CPR NEWS
CPR’S SECOND EUROPEAN
BUSINESS MEDIATION CONGRESS
SETS NEXT MONTH’S AGENDA
ing is open only to CPR members.
The meeting will feature keynote dinner speaker Jacques H. Schraven, who is
vice chairman of London-based steelThe International Institute for Conflict maker Corus Group plc.
Prevention and Resolution will hold its
Invitations were mailed to CPR memSecond European Business Mediation bers last month; PDFs of the brochure are
Congress in Brussels on October 27–28.
available in the Members Only section of
It begins at 10:30 a.m. on Thursday, the CPR Web site. Sessions will include
Oct. 27, with opening reManagement in Intellectual
marks by CPR Institute
Property Disputes; LeaderPresident and Chief Execuship From the Judiciary;
tive Officer Thomas J. StiThe Distinct Challenges of
ADR
panowich, who also is pubEastern Europe and Russia;
RESOURCES
lisher of Alternatives.
Revisiting Public Policy IniCPR is certified by the
tiatives in Europe; Case
New York State Continuing
Studies of Industry-Specific
Legal Education Board as an
Mediation Initiatives; and
Accredited Provider of continuing legal Corporate Models of Community Probeducation in the State of New York (July lem-Solving.
2004–July 2007), and will provide CLE
The second day of the meeting will incredit hours under New York CLE rules clude two sets of breakout sessions. The
and regulations for attendance at the first concurrent sessions are “Teaching
meeting for participants submitting re- Conflict Management in Europe,” and
quest forms.
“Status and Challenges of European ComIn addition to the meeting program, mercial Mediation Centers.” The second
CPR will offer a special “Pre-Congress pair is “The Role of Organizational OmWorkshop on Negotiation Skills,” on buds in Corporate Conflict ManageTuesday and Wednesday, Oct. 25–26, ment,” and “Building Conflict Managewith a multinational team of trainers. The ment Into the Law Firm.”
course also will be held at Hotel Amigo.
A brief plenary report will summarize
Registration for the Congress and the the breakouts.
workshop is available at www.cpradr.org,
(continued on page 139)
or by calling (212) 949-6490. The meet-
Alternatives
TO THE HIGH COST OF LITIGATION
SEPTEMBER 2005
EDITORIAL BOARD
CHAIRMAN
THOMAS J. STIPANOWICH
International Institute for Conflict Prevention & Resolution
W. REECE BADER
Orrick, Herrington
& Sutcliffe
HARRY N.
MAZADOORIAN
Quinnipiac Law School
JOHN J. BOUMA
Snell & Wilmer
CARRIE MENKELMEADOW
Georgetown University
Law Center
JAMIE BRODER
Paul, Hastings, Janofsky
& Walker
A. STEPHENS CLAY
Kilpatrick Stockton
CATHY A. COSTANTINO
Federal Deposit
Insurance Corp.
ROBERT H. MNOOKIN
Harvard Law School
PAUL J. MODE JR.
Citigroup
JAMES M. RINGER
Clifford Chance US LLP
ROBERT A. CREO
Impartial Dispute
Resolution Services
A. JAMES ROBERTSON II
Superior Court of
California
LAURA EFFEL
LeClair Ryan
Flippin Densmore
NANCY ROGERS
Ohio State University
College of Law
LAWRENCE J. FOX
Drinker, Biddle & Reath
DAVID L. SANDBORG
City University of
Hong Kong
MARC GALANTER
University of Wisconsin
Law School
WHITMORE GRAY
Fordham University School
of Law/University of
Michigan Law School
JEFF KICHAVEN
Jeff Kichaven, A Professional
Corporation
FRANK E.A. SANDER
Harvard Law School
IRENE C. WARSHAUER
Fried Epstein LLP
MELVYN I. WEISS
Milberg Weiss Bershad
& Schulman
GERALD R. WILLIAMS
Brigham Young University
JEFFREY KRIVIS
First Mediation Corp.
Publishers:
Thomas J. Stipanowich
International Institute for Conflict
Prevention & Resolution
Editor:
Russ Bleemer
Susan E. Lewis
John Wiley & Sons, Inc.
Production Editor:
Chris Gage
Jossey-Bass Editor:
David Famiano
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, 366 Madison Avenue, New York, NY 100173122; E-mail: alternatives@cpradr.org
Copyright © 2005 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 $215.00 for individuals and 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, 366 Madison Avenue, New York, NY 10017. 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.
VOL. 23 NO. 8
SEPTEMBER 2005
ALTERNATIVES 139
ADR BRIEF • ADR BRIEF
Even the state agency that defended
Williams and lost the case has a positive view
of the opinion. In an odd twist, the agency
designated by the courts to oversee civil mediation, the New Jersey Office of Dispute
Settlement, is part of the state’s Public Defender office, which represents Williams.
Caroline Petrilla, senior staff mediator at the
dispute settlement office, says the office is
“very, very pleased with the decision. Confidentiality is absolutely crucial to the mediation process. Mediation without confidentiality is like swimming without water.”
She explains that New Jersey litigants
often are sent to mediation. But, she says,
“you can’t force people. This decision provides that level of confidence in the
process, so that people are now going to go
into mediation—especially from the commercial perspective—knowing that it can
really work, and there really is a level of
productivity that can be lacking otherwise,
when people hold back.”
Meantime, at the same agency, New
Jersey Public Defender public information
officer Thomas Rosenthal says that at press
time, the Public Defender had not determined whether it would ask the U.S.
Supreme Court to take hear Williams.
Most of the people contacted for this
article say that because of the lack of a constitutional determination on the UMA, it
is a longshot to be taken by the nation’s top
court if a petition is filed, despite Justice
Long’s dissent.
The New Jersey Public Defender contracts with private attorneys to handle
much of its appeals work. In Williams, it
enlisted Gilbert G. Miller, of Somerville,
N.J.’s Wronko & Loewen, which also softens the apparent conflict within the agency.
An assistant in Miller’s office said he was
traveling out of the country at press time,
and he didn’t reply to a request for comment. Public Defender spokesman Rosenthal says that the dispute settlement office is
scheduled to be returned to a reestablished
state Public Advocate’s office in January.
With regard to the Williams decision,
Rosenthal says that the Public Defender
“supports mediation and supports the
principle of confidentiality. However, we
need to balance two important but com-
peting principles. That is what the state
Supreme Court attempted to do. . . . We
obviously support our client’s right to at a
fair trial. But we also support mediation.”
***
Mediation proponents are effusive when
discussing the decision, but because of the
denial of evidence to a criminal defendant,
they are striking their own unusual relationships with the case. In addition to amicus coordinator Robert Margulies’ surprise
over the extent of the decision, two attorneys on the ad hoc ADR committee say
they would have voted with Justice Long’s
dissent—both after declaring the decision a
slam dunk for mediation practice.
“I would have upheld the UMA test,”
says Terry Trantina, a partner at Stern &
Kilcullen in Roseland, N.J., “but it’s different in a commercial context than in a criminal one. If it’s somebody going to jail instead of a contract breach, then the
‘substantial’ need of a commercial party is
much different than that of a defendant in
a criminal case.”
Says Hanan M. Isaacs, who heads a
Princeton, N.J., practice bearing his name,
“The opinion from my perspective could
not have been better if the [amicus filer]
Committee on Dispute Resolution had
written it. . . . The Court’s ruling in this
New Jersey case should be very comforting
to the dispute resolution community nationally,” he says.
Still, though he calls the Court’s move
“remarkable,” Isaacs concludes that “Long
probably has it right.”
DOI 10.1002/alt.20091
(For bulk reprints of this article,
please call (201) 748-8789.)
CPR NEWS
(continued from page 126)
STIPANOWICH CO-AUTHORS
BOOK, ADR MATERIALS
CPR President Thomas J. Stipanowich
is one of four authors of “Resolving Disputes: Theory, Practice, and Law,” a
new set of practice-oriented teaching
materials.
The publisher, Aspen Publishing, a
WoltersKluwer Co., is offering complimentary examination copies.
The book is aimed at law schools,
but it may be used for legal training in
other settings. The book comes with an
extensive teacher’s manual, a Web site
with many current ADR procedures and
standards, and a DVD containing 18
video excerpts coordinated with the text
and roleplays.
Stipanowich’s coauthors are Jay Folberg, a law professor at the University of
San Francisco School of Law and executive director of the Jams Foundation;
Dwight Golann, of Boston, a Suffolk
University Law School professor; and
Dean Lisa A. Kloppenberg of the University of Dayton School of Law in Dayton, Ohio. All are CPR Sustaining Academic Members.
“For years,” says Stipanowich, “I
looked for a book that effectively addressed the whole spectrum of dispute
resolution, from negotiation to mediation
to complex arbitration and stepped
processes, and which bridged the gap between theory and practice for practitioners.” He adds, “Now, [co-authors] Jay
Folberg, Dwight Golann and Lisa Kloppenberg and I have written that book.”
“Resolving Disputes” includes sections on negotiation, mediation, and arbitration, as well as a final “synthesis” examining recent developments such as step
ADR clauses; med-arb and other hybrids;
online dispute resolution; partnering and
alliancing; and many other concepts.
Excerpts from court decisions have
been abbreviated in favor of placing more
emphasis on practical exercises and problems. The book focuses on the lawyer’s
perspective; the negotiation section high(continued on next page)
140 ALTERNATIVES
VOL. 23 NO. 8
SEPTEMBER 2005
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
(continued from previous page)
lights professional negotiation as an agent
for clients, while the mediation and arbitration sections stress the role of the representational lawyer.
“Resolving Disputes:Theory, Practice,
and Law,” is 768 pages, and comes with a
teacher's manual and a DVD video (ISBN:
0-7355-4020-9). To order, call (800) 9505259, or visit www.aspenpublishers.com.
For more information, E-mail legaledu@
aspenpublishers.com.
MORE INTERNATIONAL CPR ACTIVITIES ON THE WEB . . . AND BEYOND
The CPR Institute has launched a new international initiative in Europe, and added a
wealth of accompanying materials at
www.cpradr.org.
The Web overhaul begins after clicking
on the home page link for “CPR Around
the World.” The page, which includes
global sponsors and CPR’s international
rules, features links to descriptions of CPR
Institute work in Europe, China, Latin
America, and Russia.
The China page contains full details on
the new U.S.-China Business Mediation
Center, which was established in 2004. The
center is a joint project of the CPR Institute;
the Conciliation Center of the China
Council for Promotion of International
Trade, and the China Chamber of International Commerce.
The centerpiece of the new international Web pages is the Europe page, which
features information on the CPR European
Committee; past and future CPR European
Business Mediation Congresses, including
registration information; highlights of CPR
Institute work with the European Union;
CPR materials on European commercial
mediation—featuring adaptations of 11
chapters from CPR’s forthcoming book,
“Better Solutions for Business: Commercial
Mediation in the EU”—and other useful resources and links.
The European page also announces the
formation of the “Stichting International Institute for Conflict Prevention and Resolution,” a Netherlands corporation formed
under the CPR Institute’s direction to coordinate the European activities. It will promote the use of mediation and other methods of conflict management in commercial
and other disputes throughout Europe. CPR’S CHINA MEDIATION CONGRESS
CPR co-hosted the U.S.-China Business
Mediation Congress in Beijing on July 15,
with its partner, the China Council for Promotion of International Trade. More than
200 delegates attended. The congress was
followed by a two-day intensive mediator
training course led by Prof. Dwight Golann
of Suffolk Law School and CPR President
Tom Stipanowich.
***
The next New York City–Dispute Resolution monthly breakfast meeting, sponsored
by the Dispute Resolution Consortium at
John Jay College of Criminal Justice, will
feature a discussion by Stipanowich on the
CPR Institute, focusing on China mediation efforts. The meeting is scheduled on
Sept. 8, from 8 a.m. to 10 a.m. For information, E-mail dispute@jjay.cuny.edu or
visit http://johnjay.jjay.cuny.edu/dispute. FRANCHISING ACTIVITY
The CPR-administered National Franchise
Mediation Program, which oversees a dispute resolution process tailored to franchiser-franchisee disagreements, met
through its Steering Committee on June 24,
discussing the 10-year-old program’s future
direction. An empirical factfinding survey
currently is being conducted by the program. More information may be found at
www.franchisemediation.org.
CPR ON THE PODIUM
At the ABA’s Section of Dispute Resolution
Annual Meeting in April in Los Angeles, CPR
President Tom Stipanowich was on a panel for
the session, “The Vanishing Trial.” CPR Senior Vice President F. Peter Phillips contributed to two discussions on ADR developments in the People’s Republic of China. NEW BOARD MEMBER
CPR’s Board of Directors was recently enlarged to include Jonathan P. Graham, who
is vice president of litigation and legal policy
at General Electric Co. in Fairfield, Conn.
“Jon is a recognized business leader and
highly successful lawyer and problem
solver,” says Tom Stipanowich, CPR’s President and Chief Executive Officer. “He will
be a powerful addition to our board.”
Graham joined GE last fall from
Williams & Connolly LLP in Washington,
D.C., where he was a partner whose practice
focused on commercial litigation, international disputes and criminal defense.While
in private practice, Graham litigated matters
constitutional law and intellectual property
matters, as well as cases involving administrative law and securities law.
DOI 10.1002/alt.20088
(For bulk reprints of this article,
please call (201) 748-8789.)
ALTERNATIVES CITED IN BUSINESS COMMUNICATIONS AWARD COMPETITION
Alternatives this summer was presented with a 2005 APEX Award of Excellence for newsletter writing. Communication Concepts Inc., a
Springfield, Va., newsletter and communications firm, presents the APEX Awards awards annually, citing outstanding graphic design and
editorial content in business communications.
This year 4,942 entries were evaluated, including 661 newsletters. Alternatives was one of 21 newsletters cited with an Award of Excellence for newsletter writing.
Alternatives was founded by the CPR Institute in January 1983, and began co-publishing last year with Jossey-Bass, a San Franciscobased unit of John Wiley & Sons Inc. It is available by subscription in hard copy at www.josseybass.com, and electronically at www.WileyInterscience.com.
Staff at CPR members may receive complimentary electronic copies with CPR membership. Sign-up details are in Members Only at
www.cpradr.org or available by E-mailing Alternatives@cpradr.org.
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