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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. 26 NO. 4 APRIL 2008
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 © 2008 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 $253.00 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.
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74 ALTERNATIVES
VOL. 26 NO. 4
CPR NEWS • CPR NEWS • CPR NEWS
Editorial Board
KATHLEEN A. BRYAN
CPR’S WEEKLY IDN PODCAST
LOOKS AT INDIA’S BOOMING
LEGAL OUTSOURCING
The International Institute for Conflict
Prevention and Resolution’s International
Dispute Negotiation podcast has recently
dissected legal process outsourcing in India, as well as examined a growing Spanish arbitration provider, and how parties
can “borrow” the mediator’s powers to
help get a settlement.
The podcast is available with new
episodes every Friday at www.cpradr.org.
There is also a drop-down archive menu
with every older episode. All are free.
Featured podcasts can be played with
one mouse click on the link at the web
address above. All episodes are available
at the iTunes store.
Last month, West’s online continuing
legal education provider, WestLegalEdcenter.com, also began offering the free
podcasts. See item below.
IDN host and producer Michael
McIlwrath, Senior Counsel, Litigation,
for GE Infrastructure—Oil & Gas in
Florence, Italy, officially launched the
CPR podcast in October. So far, he has
presented 20 IDN podcast features on a
wide variety of international business issues, focusing on improving business
practices in constructing deals and ad-
Alternatives
TO THE HIGH COST OF LITIGATION
dressing conflict.
For the outsourcing podcast—“IDN
17”—McIlwrath visited Mumbai to look
at legal process outsourcing’s growth.
This controversial method of reducing
litigation costs in common law systems,
like the United States and the United
Kingdom, sends legal work to India.
McIlwrath interviewed an entrepreneur
founder of outsourcing firm Pangea3
(www.pangea3.com), and one of its top
managers, who said that business is growing at a 200% annual rate.
The podcast doesn’t endorse “LPO,”
or Pangea3, but instead examines the reality of a rapidly growing service industry
at which the support of English-speaking,
common law-trained lawyers starts at $20
per hour.
The IDN podcasts will help listeners
understand the risks of disputes and shed
insight on the best ways to accept, mitigate, and manage those risks, whether
through mediation, arbitration, or litigation that arises far from home.
Users can save the podcasts to their
computers to listen later, or download
them to MP3 organizer software and
podcatchers by right clicking and choosing “Save Target As . . .”
IDN updates automatically via subscription on iTunes, and on an RSS feed.
(continued on page 81)
Publishers:
Kathleen A. Bryan
International Institute for
Conflict Prevention and Resolution
Susan E. Lewis
John Wiley & Sons, Inc.
APRIL 2008
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
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
JAMES M. RINGER
Clifford Chance
New York
A. JAMES
ROBERTSON II
Superior Court of California
San Francisco
NANCY ROGERS
LAWRENCE J. FOX
Ohio State University
College of Law
Columbus, Ohio
Drinker, Biddle & Reath
Philadelphia
DAVID L. SANDBORG
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
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
New York
Corporation
Los Angeles
GERALD R. WILLIAMS
JEFFREY KRIVIS
First Mediation Corp.
Los Angeles
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 © 2008 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 $190.00 for individuals and $253.00 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
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APRIL 2008
ALTERNATIVES 81
ADR BRIEF • ADR BRIEF • ADR BRIEF
•
the same difficulties . . .?”
mediators’ settlement “suggestions.”
The study produced three conclusions
on analytical techniques:
1) A “substantial majority of lawyers who
are repeat mediation users” favor use of
analytical techniques;
2) “[A] substantial minority of lawyer mediation users and a higher percentage
of mediation parties do not want mediator opinions,” so the report advises
caution, and
3) A new group is needed to study and
make recommendations about mediation quality in light of so-called analytical techniques.
***
One of the report’s concluding recommendations follows the task force’s concerns
about analytical mediation processes. It
asks the ABA Section of Dispute Resolution to appoint “an appropriate group” to
examine analytical techniques in civil cases
where parties are represented.
It has been “almost an ideological debate over whether analytical practice was
proper and appropriate,” says co-chair
Wayne Thorpe, “but I’ve come to believe
it’s an irrelevant debate. There are people
who want mediators to engage in a certain
kind of analysis, whether evaluative, or
something different but close.”
The report also urges studying mediation quality in contexts beyond commercial matters, including domestic disputes,
personal matters, and cases where parties
are unrepresented. The task force suggests
examining the training implications of its
report, including the issues about customizing processes.
Task force co-chair Rachel Wohl says
that the comprehensive mediation user
guides and pamphlets currently in development will focus on “‘recommended considerations,’ since we don’t believe there are
hard-and-fast best practices that apply to
all mediation.” She says she expects the
pamphlets to be available on the ABA web
page this summer.
Finally, the task force recommends promoting its report appendix, “Tool Kit for
Improving the Quality of Mediation in
Your Geographic or Practice Area,” for
adaptation by local bar groups to conduct
their own investigations into mediation
users’ preferences. [University of MissouriColumbia Prof. John Lande, a task force
member who has written on the efforts, is
preparing an Alternatives article slated for
later this spring on the toolkit.]
***
Kathleen A. Bryan, president and CEO
of the CPR Institute and publisher of this
newsletter, served on the task force, and
hosted a January 2007, New York focus
group session as part of the task force’s
work. This ADR Briefs item was written
by Alternatives editor Russ Bleemer, who
is a member of the ABA Section of Dispute Resolution.
DOI 10.1002/alt.20223
(For bulk reprints of this article,
please call (201) 748-8789.)
CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 74)
Links are available at the CPR web address above. All access—via CPR’s site,
iTunes, or RSS—are free and open to
the public.
In iTunes, find IDN by going to
Podcasts, where IDN is located in the
Business section’s Marketing and Management section. Or search iTunes for
IDN from the home page.
Among the recent archive offerings
are programs featuring the Arbitration
Tribunal of Barcelona. In IDN 16,
McIlwrath spoke with Prof. Dwight
Golann, of Suffolk University’s School
of Law in Boston, who provided a practice technique on how parties can use
the neutral’s powers to help get what
they want in mediation.
Archive programs from earlier this
year include an interview that discusses
the state of commercial mediation in the
Netherlands; “Great Mediators—An Interview with JAMS’ General Counsel,
Jay Welsh”; “A Conversation with
Northrop Grumman’s Assistant General
Counsel—Europe, Wolf von Kumberg,”
and “International Mediation: An Interview with Karl Mackie of London’s Centre for Dispute Resolution.”
For more information on the series,
visit the web page above, or E-mail
IDN@cpradr.org.
REGISTRATION OPENS FOR NEXT
MONTH’S EUROPEAN CONGRESS
Registration for CPR’s Fourth Annual
European Business Congress next
month in Vienna is open at
www.cpradr.org. (Direct link: http://
vienna.cpradr.org.)
The CPR spring meeting event will
highlight business conflict resolution
techniques and systems design issues,
and feature global practice leaders, on
May 15-16. The full agenda is available
at the registration page.
CPR also will be sponsoring a oneday workshop on May 14, “What is
Commercial Mediation?” It is aimed at
business managers, and their legal counsel, who want to learn about how commercial mediation works. The program
will include a live commercial mediation demonstration. Workshop participants also may attend the CPR meeting
at a discounted rate.
All events will be held at Le Méridien Vienna hotel. For more information,
E-mail info@cpradr.org or call (212)
949-6490.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on next page)
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82 ALTERNATIVES
VOL. 26 NO. 4
APRIL 2008
CPR NEWS • CPR NEWS • CPR NEWS
•
•
(continued from previous page)
CPR TRAINING DEBUTS
ON WEST’S ONLINE
LEGALEDCENTER
•
CPR has joined West’s online LegalEdcenter as a content partner. The site is a
Web provider of live and on-demand
continuing legal education training.
Four seminars, recorded at CPR’s January Annual Meeting in New York, debuted online last month. (For highlights
from the January meeting, including presenters, see below.) The sessions are available at http://westlegaledcenter.com;
search on CPR Institute.
CPR members receive a 25% discount from the listed course prices.
In addition, West debuted its offering of CPR’s International Dispute Negotiation podcast, hosted by Michael
McIlwrath, of GE Infrastructure—Oil
& Gas. Episodes are now available for
free at the Podcast CLE link on WestLegalEdcenter’s home page. The podcasts
do not earn CLE credit at this time.
CPR became a content partner because West’s reach will help CPR
spread the word about cutting-edge
business conflict resolution processes.
The online component will provide a
substantial expansion of CPR’s training program, and hopefully interest
more people in improving their ADR
skills, as well as seek out other CPR
Institute offerings.
CPR believes that the ready availability and easy access to selected CPR
events will encourage best ADR practices throughout the legal profession.
The West LegalEdcenter also will
provide more depth for CPR’s offerings at CPR’s members, for those who
are unable to travel to a CPR meeting
or training event. Individuals at CPR
members should register at the West
site, and add the CPR Institute to
their West profile to receive member
pricing.
The initial online course offerings
provide full CLE credit for attorneys in
23 states. At press time, the featured
courses are:
•
Expected Value Arbitration.
Conflict Management as an Attribute of Leadership.
“You Say You Want To, But You
Don’t”: Crafting Dispute Management Clauses as a Matter of Organizational Policy and Practice.
Class Actions in Arbitration and
Mediation.
Highlights from the first two courses are in meeting item below.
ALTERNATIVES ONLINE
GETS AN ELECTRONIC
ACCESS UPGRADE
Individuals at CPR members can now
get access to electronic advance and
archive copies of Alternatives by logging
into Members Only on CPR’s site, and
clicking on the Alternatives logo.
CPR members need only use their
passwords to sign in for Members Only
website access. Then, go to the Alternatives page, where the logo link will produce a full listing of the current month’s
articles, as well as an index leading to articles for the past four years. The material is hosted by Alternatives’ publisher,
Jossey-Bass, a San Francisco-based unit
of John Wiley & Sons.
Full-text archives continue to be
searchable, dating back to 1991, on
Lexis and Westlaw.
The sign-up process requiring special CPR codes and E-mail authentication has been eliminated. Now, CPR
member counsel, partners, associates,
and staff have simpler unlimited electronic access.
Still, users must affirmatively request the E-mail Alert service from
Jossey-Bass, which will not send out
Alerts without a request. Sign-up details
for delivery of the Alerts—which provide direct links to newly posted Alternatives’ articles—are available at the
Jossey-Bass Alternatives page.
Information on additional hard copy
subscriptions also is available at the
Jossey-Bass web page, as well as at
www.josseybass.com/go/alt. Members’
bulk hard copy subscription information,
as well as membership password assistance, is available from info@cpradr.org.
Alternatives editorial inquiries can be sent
to Alternatives@cpradr.org.
ABA PRESENTS
D’ALEMBERTE/RAVEN AWARD
TO FORMER CPR PRESIDENT
TOM STIPANOWICH
The American Bar Association’s Section
of Dispute Resolution will present its
D’Alemberte/Raven Award to Thomas
J. Stipanowich, who is academic director at the Straus Institute for Dispute
Resolution at Pepperdine University in
Malibu, Calif.
Stipanowich was the CPR Institute’s second president and chief executive officer, serving from 2000 to 2006.
He also was Alternatives’ publisher during the period.
Stipanowich will receive the award
at a luncheon at the ABA Dispute Resolution Section’s conference in Seattle
on April 4.
The D’Alemberte/Raven Award
recognizes a member of the dispute resolution community who has contributed significantly to ADR by developing new or innovative programs, improvements in dispute resolution
services and efficiency, research and
writing, or continuing education programs. The award is named for Robert
D. Raven, of San Francisco, and Talbot
D’Alemberte, of Tallahassee, Fla., who
are former ABA presidents.
Stipanowich, who also is a neutral
with ADR provider JAMS, continues to
serve on CPR’s board of directors. This
is the second consecutive year that a
CPR board member received the
D’Alemberte/Raven Award. Last August, CPR Chairman Charles B. Renfrew, a San Francisco mediator and arbitrator, received the award.
In 2001, CPR founder, and former
president and CEO, James F. Henry,
was the ABA award recipient.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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APRIL 2008
ALTERNATIVES 83
CPR NEWS • CPR NEWS • CPR NEWS
LOS ANGELES TRAINING
SET FOR LATE APRIL;
NEW YORK IN JUNE
For more information, E-mail info@
cpradr.org.
The CPR Institute has a training session
on the West Coast later this month, and
there are still registration slots open.
CPR will present “E-Discovery 101 for
Neutrals” on April 29 at the office of
Buchalter Nemer, 1000 Wilshire Boulevard,
Suite 1500, Los Angeles, Calif. 90017.
The full-day training will earn participants six hours of skills continuing legal
education credits. The trainers scheduled
for the event are Karen L. Stevenson, senior counsel in the Buchalter Nemer litigation group in the firm’s Los Angeles office;
David A. Reif, a litigation partner in the
Hartford, Conn., office of McCarter &
English; and Charles H.R. Peters, a litigation partner at Chicago’s Schiff Hardin.
The agenda and online registration are
available at the link to CLE and Training
Programs at www.cpradr.org. (Direct link:
http://www.cpradr.org/CLE_OnLine.asp?
M=8.4.)
Online registration also is open for a
New York session, “Court Mediator Training,” later this spring. The June 26-27
training will be held at the CPR Institute’s
offices at 575 Lexington Ave., between 51st
and 52nd Streets, in New York. The training will run from 8:30 a.m. to 5:30 p.m.
both days, and provide 17 Skills and one
Ethics continuing legal education credits
under New York State CLE Board rules.
The trainer is Margaret Shaw, of JAMS’
New York office. Successful completion of
this training satisfies the training requirements for mediators at the Southern District New York federal court.
CPR 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; accreditation renewal is
pending). Financial hardship guidelines for
both of these courses are available by calling
CPR at (212) 949-6490, or on CPR’s website at the training link above. These courses
are nontransitional and not acceptable for
newly admitted attorneys. No partial CLE
credits are granted for CPR training events.
HIGHLIGHTS FROM CPR’S
2008 ANNUAL MEETING
CPR’s 2008 Annual Meeting at New York’s
Waldorf-Astoria hotel focused on setting
up sophisticated systems to move business
problems to satisfactory resolutions fast,
avoiding litigation.
Eleven continuing legal education sessions covered integrated alternative dispute
resolution processes, advanced ADR skills,
and briefings on the state of the law.
The presentations featured U.S. and
European lawyers, and presented the
views of experts in transnational corporations, international law firms, specialized
legal practices, and government and academic settings.
About 200 CPR members and guests
saw a Jan. 17 luncheon ceremony in which
CPR presented its fourth James F. Henry
Award to Lord Harry Woolf, the former
Lord Chief Justice of England and Wales.
For more details on the luncheon and the
award, see CPR News at 26 Alternatives 18
(February 2008).
The meeting kicked off with a state-ofADR speech by Kathy Bryan, CPR’s president and chief executive officer, who also is
publisher of this newsletter. She was followed by a keynote address by Brackett B.
Denniston III, general counsel of General
Electric Corp.
“We have professionalized litigation in
this country,” said Bryan at the outset,
“and I think that’s disturbing.” She said,
“We need to professionalize ADR more.”
Bryan briefed the meeting on several
CPR priorities in her 30-minute address.
She first cited ADR’s global application,
noting that CPR is focusing more on international issues. She cited the presence and
recognition of Lord Woolf. She also spoke
about CPR’s U.S.-China Business Mediation Center, and her participation in a recent Hong Kong ADR conference. (See the
February 2008, CPR News, cited above.)
She discussed commercial ADR challenges
related to trade and outsourcing in, respec-
tively, Japan and India.
Bryan briefed Annual Meeting attendees on CPR’s Law Firm Award, which
was presented at CPR’s previous members
gathering in Boston last October. See
CPR News at 25 Alternatives 162 (November 2007), and 25 Alternatives 178
(December 2008).
Bryan said CPR was reconsidering the
relevance and applicability of its twodecades-old pledge—the CPR corporate
and law firm nonbinding commitments to
negotiate, mediate, and use ADR practices
before filing a suit. She noted that a committee had been assembled to tackle the
pledge’s revitalization.
Bryan concluded by discussing CPR
committee efforts that are producing new
initiatives in areas including insurance,
product liability, E-discovery, preventive
law, collaborative law, and human rights.
Brackett Denniston, who was recipient,
along with GE, of CPR’s 2005 Corporate
Leadership Award, spoke for 30 minutes
about his company’s ADR commitment.
He talked about the need for CPR’s continued ADR development efforts. CPR is
“the leader in one of the most important
things we do in our profession,” he said:
“solve problems, not make problems.”
Denniston spoke about the importance
of early case assessment to GE’s efforts.
“We’re strong believers in ‘ECA,’” he said.
“You find out what is good with your case
early—not on the courthouse steps where
most people learn about their case.”
Early case assessment sets up and encourages mediation, he said, and that has
meant dollars saved. Denniston says that
GE litigation costs have dropped 43%
“over the last several years.” And during the
past decade, he said, litigation volume had
“kept pace” with GE’s growth. The result,
he reported, is that despite litigation being
“a growth industry,” GE has spent less time
and money in litigation, proportionally,
and suffered fewer broken relationships.
Denniston said ADR can grow by
boosting the number of companies signing
pledges; increasing the numbers and quality of neutrals; using ADR more in so-called
intractable disputes, and increasing em-
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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CPR NEWS • CPR NEWS • CPR NEWS
(continued from previous page)
phasis in law schools.
Denniston distilled his view of
ADR’s future into four challenges:
1) “Why isn’t early dispute resolution universal in companies?” he asked.
“Why is so much ad hoc . . . in the face
of overwhelming evidence of efficiency
of cost?”
Denniston said that solving business problems in courts is bad business.
“It’s embarrassing,” he declared, “in the
face of this overwhelming evidence” of
effectiveness.
2) Mediation use should be aggressively pursued for international disputes, particularly in the Third World.
“It should be a goal for a more peaceful
and modern world,” he said.
GE’s business reflects the international need for and emphasis on ADR,
Denniston explained. He said that within two years, 57% of GE’s sales will take
place overseas. He projected that the
company’s worldwide sales would reach
$130 billion by 2010.
He said the company’s focus on international business has been vindicated by its annual growth rates abroad:
about 45% in India; 14% in China;
and 18% in the Middle East. By comparison, he said, developed nations’
sales growth has grown by about 10%
annually in recent years.
“Because of cross-cultural disputes,”
he said, “skilled mediators and arbitrators have even more value now, because
you don’t want to take a chance on local courts.”
3) Business needs to fix the way arbitration is handled. “Arbitration is badly broken,” said Denniston, the first of
several critiques of current arbitration
practices at the meeting. “It’s better than
the alternative of a bad court—but not
much better,” he added.
He said that arbitration forums need
to impose reasonable time limits and focus better on the issues the tribunal
must decide. The providers also should
move away from three-arbitrator panels,
Denniston said, adding that they were
inefficient. He said that arbitration fo-
rums must do better in managing tribunals for efficiency and transparency.
4) “Greater transparency” is needed
for business information across the
board, Denniston said, explaining that
it is “hard for GE to assess the competency of individuals and institutions,” in
the ADR arena and beyond.
“And if it’s hard for us,” he concluded, “you can imagine how it is for smaller institutions.”
***
Denniston moved from his 30-minute
keynote to the panel for the first full
Annual Meeting session. The general
counsel roundtable—moderated by
JAMS neutral Joseph T. McLaughlin,
former New York office managing partner of Heller Ehrman LLP and former
executive vice president of legal and regulatory affairs at Credit Suisse First
Boston—took on tough legal department management issues, and developed further Denniston’s challenges for
ADR practices.
First, Mary Walker, the U.S. Air
Force’s general counsel, discussed efforts
at instilling an ADR culture, in her
branch of the U.S. military. The Air
Force has long been recognized as a governmental ADR leader. It received
CPR’s Outstanding Practical Achievement Award in 1999; Walker last
briefed CPR members at the January
2003, Annual Meeting.
The Air Force also has received the
Outstanding Federal Procurement Alternative Dispute Resolution Award,
which is presented by the U.S. Office of
Management and Budget’s Office of
Federal Procurement Policy and the
Chief Acquisition Officers Council.
She reviewed the department’s training methods, which emphasize changing the culture from viewing relationships as adversarial to ones in which
“that relationship is valued.”
Walker said that 85% to 90% of
contractual disputes are offered ADR.
During a six-year period ending in
2006, Walker reported that a trial path
disposed of cases in an average of 36.65
months, while ADR practices averaged
19.13 months in resolving cases.
Each Air Force installation has “an
ADR champion” responsible for implementing and overseeing ADR practices,
she said, adding that the overseer usually isn’t an attorney.
The satisfaction rate with the ADR
process used in Air Force employee disputes is about 84%, Walker reported,
and 98% were pleased with the mediators. Air Force equal employment opportunity complaints are resolved in an
average of 38 days, she said.
Returning to her opening statements, Walker said that negotiation
skills are at the heart of the Air Force
ADR success—the result of more than
25,000 supervisors having been trained
in interest-based negotiation processes
and techniques.
She said that nonlawyers are sent to
the Air Force’s “Negotiation Center of
Excellence” for training. (See http://negotiation.au.af.mil.) “If you don’t take
negotiation training out of the
[lawyers’] hands,” she said, “you won’t
change the culture.”
She concluded by noting that the
Air Force’s future holds more of the
same, with deeper integration of dispute resolution processes into the Air
Force’s culture, and a stronger focus on
“cross-cultural competency” and systems integration.
For more information on the Air
Force ADR efforts, see www.adr.af.mil.
Panelist Robert C. Weber, senior
vice president for legal and regulatory
affairs and general counsel at IBM
Corp., in Armonk, N.Y., said that the
technology systems giant has a “large
global need for some way beyond brute
force to resolve disputes.”
Following Brackett Denniston’s
speech comments, Weber noted that
two-thirds of IBM’s revenue comes
from outside the United States, and the
company has located its global procurement head in China. He agreed with
Denniston’s contentions that arbitration
is broken, and that it is “profoundly im-
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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portant” to look at disputes early.
Business relationship rough spots
shouldn’t be unexpected, said Weber.
Companies that mediate and seek to “see it
through” should pay close attention to the
process, he added.
Weber said a business executive should
act like an ombudsman for dealings with
the client or vendor. Make sure that the
right business people are selected, he advised, adding that the key is embedding
“these [ADR] processes into the very business itself.”
A big globalization issue for IBM, Weber said, is growing litigiousness in Japan,
and he urged meeting attendees to consider the implications of the trend.
Panelist Denniston agreed that Japan
had become an important global issue. He
said that currently there were thousands of
GE cases dealing with Japanese business issues. When he joined the company in
1996, he said, GE units “had none.”
GE, he said, used ADR as its Six Sigma
quality control systems development
process for its litigation. To deal with “a
very combative culture,” Denniston says he
stressed data development and measurements, relating ADR moves to business
growth. “With 320,000 employees,” he
said, “it is hard to make [problem solving]
the culture.” The company has had the
biggest ADR use success in human resources disputes, he reported.
Moderator McLaughlin asked the panel about the difficulties of ADR measurements, and if the panel members worry
about arbitration’s trend toward litigationstyle processes. IBM’s Weber said that the
company lawyers’ goal should be to reach
back to private practice and “turn everything into a preliminary injunction matter.” In that typically 90-day time frame,
“the quality of justice is not going to be any
different than in a long trial,” Weber said.
***
Next, a panel of law firm attorneys addressed ADR institutionalization in “Integrated Systems for Assisting Clients to
Manage Conflict: The Law Firm Perspective.”
Moderator Brooks R. Burdette, a partner at New York’s Schulte Roth & Zabel,
led the examination of the systems big
firms use to resolve cases swiftly without
protracted discovery and litigation. The
session featured a representative from
CPR’s Law Firm ADR Award winner, and
partners from the two firms that received
honorable mentions for the award.
First, panelist Alexander J. Oddy, a
partner at London’s Herbert Smith, discussed his firm’s recently released study of
ADR use and practices among clients. The
study divides businesses into four categories: embedded users, ad hoc users, the
negotiators, and nonusers.
The firm’s report, “The Inside Track—
How Blue-Chips Are Using ADR,” and an
ADR toolkit for improving conflict resolution practices, are available at its website
ADR page, www.herbertsmith.com/Services/PracticeAreas/Disputeresolution/Mediation.htm. The firm’s ADR efforts earned
it an honorable mention by the CPR Law
Firm Award judges last fall.
Panelist Robert B. Calihan, a partner at
Nixon Peabody in Rochester, N.Y., discussed an extensive CPR training program
conducted for the firm’s personnel, directed at installing a systemic firm-wide approach to using ADR.
Echoing Alex Oddy, Calihan said
clients are divided in their approaches to
dealing with conflict. Some are warriors, he
said, and others are “uninterested” in expanding ADR. But, he said, he was unaware of a client that doesn’t use ADR in
some form.
Panelist Frances Gauthier represented
2007 CPR Law Firm Award winner
Stradley Ronon Stevens & Young, of
Philadelphia, noting that the firm’s ADR
commitment kicked off with a training session conducted by Dwight Golann, a professor at Suffolk University Law School,
more than a decade ago. Gauthier, an of
counsel in the firm’s Wilmington, Del., office, described Stradley Ronon’s ADR practice as an integrated approach in which
clients are not only represented in conflict
resolution forums, but also offered full involvement with, for example, contract
drafting assistance.
For more on Stradley Ronon’s practices,
see the December 2007, CPR News cited
above (“The Winner Speaks: More on
CPR’s First Law Firm ADR Award,” at
188.)
Panelist John Heaps, a partner in Eversheds’ home office in London, presented a
Powerpoint discussion of the firm’s
“Rapid” ADR program. The program also
received an honorable mention in the 2007
CPR Law Firm Award competition. Rapid
is an acronym for Review-Analyze-PlanImplement-Deliver.
Rapid, explained Heaps, operates
throughout the international firm’s Europe
operations. He said the firm is deploying
the dispute management tool to deal with
about 600 cases it is handling for Tyco International Ltd.
The panel concluded with audience
discussion and questions. In response to a
question about the firm’s commitment to
informing clients of their ADR options,
Nixon Peabody’s Robert Calihan said,
“You can be a ‘Hired Gun,’ or you can be
a ‘Trusted Adviser’ to a client. The Hired
Guns come and go. But Trusted Advisers
are a long-term presence.”
***
The next meeting session tackled one of
the most significant business conflict resolution issues, constructing an organization’s program. “Systems Design and the
Corporate Ethos” featured detailed descriptions of three major systems.
First, Wilbur Hicks, the ombudsman at
the International Monetary Fund in Washington, D.C., discussed the nuances of the
organization’s ADR processes. He contrasted them with his previous systems work, as
corporate ombudsman and director of
Shell US’s “Resolve” program in Houston,
and his service as the first director of
Princeton University’s Office of the Ombudsman, in Princeton, N.J.
He said that both Princeton and Shell are
more than a century old, and the long history affected the acceptance of both programs’
changed processes. At the IMF, he said, the
ADR program focuses on conflict avoidance.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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(continued from previous page)
PD Villarreal discussed the recent
installation of a new ADR program at
his employer, Schering Plough Corp., a
large pharmaceutical company based in
Kenilworth, N.J. Villarreal is vice president and associate general counsel. The
focus, he said, is different from his previous ADR work at GE, where he designed, installed and supervised ADR
processes.
Schering-Plough’s program, Villarreal said, was driven less by internal issues than by the nature of the pharmaceutical industry, and the environment
in which it introduces its products.
Gripes against his company, Villarreal said, are emotional and vituperative. “There’s a view that [the company]
deserves to be punished.”
Still, that doesn’t mean giving up on
ADR, he said. “We have just had to develop a different kind of ethos than they
had at GE.”
For example, GE’s early case assessment often meant a fast move to mediation. “Here, [adversaries] are less likely
to sit down with us,” Villarreal said.
Since he joined Schering Plough in
2005, Villarreal said he has worked to
make early case assessment “totally ingrained” into the culture.
Most cases go through ADR, he
said, though he said that ScheringPlough tries proportionally more cases
than GE. “It is just longer and harder to
get there,” he said.
Panelist Kathryn A. Oberly, vice
chair and general counsel at Ernst &
Young LLP, in New York, said the accounting giant implemented a “top
down” program in 1994-1995—an
ADR methodology strongly supported
by the firm’s chairman and management
committee. Oberly said she and her
deputy counsels traveled nationwide to
talk to the firm’s partners about using
ADR techniques in their client dealings.
The firm, she said, “totally bought
into ADR.” Oberly, and Ernst Young,
were the first honorees of CPR’s Corporate Leadership Award in 2004.
The audience discussion included
an examination of company resistance
to ADR.
***
William Baker, a partner in the New
York office of Alston & Bird, served as
moderator for a frank afternoon discussion with four top international practitioners about problems that have developed with arbitration, and efforts to
staunch its migration to litigation.
Panelist Michael McIlwrath began
with a lengthy list of problems his employer, GE Infrastucture—Oil & Gas,
based in Florence, Italy, has seen in international arbitration cases. Echoing
his boss Brackett Denniston’s keynote
earlier in the day, McIlwrath said that
GE isn’t optimistic about arbitration reform. While McIlwrath vowed to push
for more transparency in provider
processes and arbitrator selection, he
said at the outset that the company is
actively pursuing other ADR options,
like mediation.
Still, McIlwrath said that his GE division has more steps to deal with arbitration problems than simply walking
away. The company has had effective arbitrations using regional institutions in
Europe which, he said, are attracting
parties through their ability to move
cases quickly. He also said his division
tries to avoid the expensive procedures
typical of U.S. and U.K. litigation, preferring civil law practice when appointing arbitrators or negotiating a contract’s place of dispute resolution.
He said that GE also compensates
for arbitration slowness by “insourcing.”
The “inefficiencies of the system allow
us to bring [the arbitration legal work]
in-house.” And, he said, some of that
work also can be outsourced to India.
What would bring us back to arbitration? asked McIlwrath. First, he said,
process improvements that covered the
early resolution of key issues. He said
that big ADR providers need to put
“management into ‘case management.’”
Second, he said, is increased transparency, which he defined as “broader
access to information about arbitrators.” He said the legal profession needs
databases with awards, challenges, and
party feedback.
[McIlwrath is participating in an effort to gather information on arbitrators, and publicize it. See “Seeking
Transparency, International Arbitration
Users Propose to Gather Feedback,” 25
Alternatives 183 (December 2007). He
also is host and producer of a weekly
podcast for the CPR Institute, which
can be found on CPR’s home page. See
details above.]
Panelist John B. Pinney, a partner at
Cincinnati’s Graydon, Head & Ritchey,
and a veteran of CPR’s Arbitration
Committee, discussed CPR’s work to
improve arbitration processes. He examined a CPR initiative to collect more information on arbitrators, and incorporate the additional material in listings of
CPR’s Panels of Distinguished Neutrals.
Pinney reported that the committee
is seeking input on draft protocols that
deal with procedures for arbitration witnesses, and for prehearings.
Responding to Mike McIlwrath’s
call for major arbitration process
changes, panelist James H. Carter, a
partner in New York’s Sullivan &
Cromwell, agreed that changes are
needed. But he said he is “in favor of
incrementalism.”
The “perceived problems,” said
Carter, who last year finished a term as
American Arbitration Association board
chairman, are discovery, a need for
emergency relief, and a way to deal
more efficiently with smaller claims.
Carter discussed the problems in
order. He said that the International
Centre for Dispute Resolution, the
AAA’s international division, has a document discovery task force that is looking at the issues. He said that there are
emergency measures of protection under Article 37 of the ICDR’s rules.
[Last November, CPR introduced a
new “Rule 14: Interim Measures of
Protection by a Special Arbitrator,” in
its Rules for Nonadministered Arbitration. See www.cpradr.org.] For smaller
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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cases, online dispute resolution needs to
be used, and expanded, Carter said.
Panelist Christopher Newmark, name
partner in London’s Spenser Underhill
Newmark, discussed International Chamber of Commerce moves to deal with the
issues the panel had discussed. He said
that the ICC has pushed for “proactive
case management by tribunals,” and required parties and arbitration tribunals to
make a point of early agreement on case
procedures.
The strategy, he said, is to empower tribunals to assert control over matters so
they don’t get out of hand.
He recommended more party vigilance
in the selection and appointment of an appropriate arbitrator; attendance by party
representatives at all proceedings, the use
of discretion in the apportionment of
costs, and the promotion of settlement by
everyone involved.
***
Next, CPR Senior Vice President F. Peter
Phillips moderated a session examining realworld approaches to organizational conflict
that featured four diverse perspectives on
designing and running ADR programs.
The program was Phillips’ last as a CPR
officer. He has departed CPR as a full-time
senior vice president after a decade, but
continues as senior fellow.
Panelist Clyde W. Lea, deputy general
counsel of litigation and environmental
matters at Houston-based oil company
ConocoPhillips Co., discussed an “inherent conflict”: companies’ needs to resolve
matters expeditiously to serve a wide variety of business purposes, including costs,
efficiency, and public relations, and law
firms’ “hours’ requirements.”
Savings from ADR processes are hard
to measure, said Lea, noting that ConocoPhillips relies strongly on decision trees
to measure risk in litigation matters. The
“only real way” to reduce litigation costs,
he said, is to resolve cases earlier. He said
that alternative fee arrangements don’t have
an effect on lowering litigation costs.
Panelist Deborah A. Katz discussed the
installation of interest-based problem-
solving training at the U.S. Transportation
Security Administration, a U.S. Department of Homeland Security agency created in the wake of the Sept. 11, 2001, terrorist attacks. The agency oversees security
for U.S. highways, railroads, buses, mass
transit systems, ports and 450 airports,
employing about 50,000 people. Katz,
based at the agency’s Arlington, Va., headquarters, serves as its model workplace
program executive.
She said the agency’s ADR efforts have
received the “broad-based organizational
support needed for success.”
Karl A. Slaikeu, chief executive officer
of Austin, Texas, consulting firm Chorda
Conflict Management Inc., emphasized
that ADR systems now are widespread and
needn’t be overly complicated. He said that
companies don’t need to reinvent the wheel
to install an effective program. Some, he
reported, are more than 15 years old. He
said comprehensive programs cover employees, customers, and other parties, and
exist in all industries, including nonprofits.
While program names vary, Slaikeu
said that the resolution systems all emphasize interest-based resolution. He said they
address at least one “mission critical” organizational goal, including saving money;
retaining customers and employees, protecting shareholder value; protecting the
brand, and advancing key initiatives.
Panelist Donald S. Trevarthen updated
the Annual Meeting on Toro Co.’s ADR
activities. The Bloomington, Minn., lawnmower and yard equipment maker pioneered an early dispute resolution program
for cases in which customers said they were
injured by Toro products.
Toro’s three-step program emphasizes
prevention, early intervention and accident
investigation, and pre-litigation mediation.
The company, which has attracted national press for its unusual efforts, sends representatives to the complainant’s home immediately, stressing apologies and assistance to support the customer. The
program often deflects litigation.
Toro company officials and its outside
attorney—its National Mediation Counsel—had appeared at CPR meetings twice
before. See, e.g., “CPR Institute’s June
2002 Spring Meeting,” 20 Alternatives 137
(September 2002); see also Miguel A.
Olivella Jr., “Toro’s Early Intervention Program, After Six Years, Has Saved $50M,”
17 Alternatives 65 (April 1999).
Trevarthen, who is director of division
counsel, reported that the early intervention
program closed 119 cases last year in the
early stages—a startling 80 of which had no
payout by the company. For those cases advancing to formal mediation, the resolution
rate is more than 95%, according to Trevarthen. He noted that the average perclaim handling expense has been reduced
over the years to $43,000, from $115,000.
***
CPR President Kathy Bryan returned to
the podium to conclude the first-day sessions on a subject she raised in her opening
address, ADR pledges.
She analyzed a new proposed CPR
Pledge—to negotiate first, and use ADR
processes before filing a suit—that has
been proposed in draft form by a CPR
committee. Bryan explained that the new
version, which CPR will be finalizing and
disseminating this year, highlights global
and preventive ADR moves.
The CPR coursebook materials provided the attendees the draft. One audience
member cited a passage stating that pledge
signers “will seek opportunities to include
appropriate dispute resolution clauses into
all . . . commercial contracts.” The audience member said that the paragraph was
the most important, but it wasn’t strong
enough, and called on CPR to place more
emphasis on drafting and clauses for litigation prevention.
Susan Richey, a law professor and associate dean at the Franklin Pierce Law Center in Concord, N.H., discussed her work
with the International Trademark Association, which has an ADR pledge for law
firms and “brand owners.” Information
and signers can be found at www.inta.org.
Richey said that INTA uses its neutrals
as “ambassadors” to provide outreach that
helps convince members and others to
adopt the pledge.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
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(continued from previous page)
Giuseppe De Palo, who heads
Rome’s ADR Center SpA, discussed his
long-running efforts to get lawyers in
countries bordering the Mediterranean
Sea to pledge to explore ADR. De Palo’s
work has focused on bar associations in
Europe and the Middle East. Representatives from five national bar associations have signed the Euro-Mediterranean Charter on Appropriate Dispute
Resolution. For details, see www.adrmeda.org, and “Pledging ADR ‘Round the
Mediterranean,” 25 Alternatives 185
(December 2007).
***
The second day of the CPR Annual
Meeting, Friday, Jan. 18, kicked off
with “Conflict Management as an Attribute of Leadership,” featuring two
professors with two recent books on
the subject.
The thesis for Tim A. Flanagan and
Craig E. Runde, of Eckerd College’s
Leadership Development Institute, in
St. Petersburg, Fla., is that companies’
integrated dispute management system
can’t stand alone without individuals
achieving some level of “conflict-competent” leadership.
“Relationship conflict happens
when people focus more on personalities,” said Flanagan, “and the emphasis
is on who to blame. . . . Why not focus on task conflict rather than relationship conflict?”
Producing conflict competent leadership involves developing new attitudes
among executives, the professors explained. Professionals need to appreciate
conflict dynamics, understand their responses to conflict, develop strategies to
control emotions, and engage constructively about business conflicts.
In responding to business conflicts,
Flanagan said, people are too absorbed
in their own view. “In effect,” he said,
“we didn’t see things as they are. We see
things as we are.”
The professors showed the audience
a Powerpoint chart exhibiting a path of
constructive response to triggering
events, as well as a destructive response.
People must step back, Runde said, so
they are not longer “immersed in that
negativity.” He advocated slowing down
responses, planning, and even using
“time outs” to cool down.
The professors’ books, “Becoming a
Conflict Competent Leader: How You
and Your Organization Can Manage
Conflict Effectively” (2006), and
“Building Conflict Competent Teams”
(2008), are both published by J-B CCL
(Center for Creative Leadership), and
are available on Amazon.com.
An audio recording of the session is
now available for CLE credit on demand at WestlegalEdcenter.com, with a
25% discount for CPR members.
***
Expected value arbitration, explained
panelist Joshua P. Davis, a professor at
the University of San Francisco’s School
of Law, benefits both sides in a dispute
by deploying a decision-tree risk analysis evaluation of the case.
The analysis, explained Davis, reflects the arbitrators’ judgment about
critical legal and factual issues, and the
likelihood of their outcomes at trial.
The purpose of expected value arbitration is to provide comfort for parties
who strongly disagree about a potential
result, but who also don’t want to gamble on the outcome.
The arbitrators aren’t picking a winner or loser. But their decision tree lays
all the cards on the table. With a better
handle on the way a trial might go—
and the way litigation costs might
soar—earlier settlement is encouraged.
Expected value arbitration “is a very
principled way” to arrive at a decision,
Davis said.
The process is transparent, since the
arbitrators put the parties and the variables through the decision tree. That,
Davis explained, is “less likely to engender dissatisfaction” with the overall resolution processes. Pure arbitration, he
said, can be less transparent—“a little
opaque”—and produce the occasional
“split-the-difference” awards.
He emphasized that the expected
value arbitration results are easily communicated—and defended—to company management.
Davis stressed that expected value
arbitration lowered costs. He said the
process has fewer discovery issues, since
discovery usually isn’t as important to
constructing expected value as it is in
litigation or even commercial arbitration. He said the expected value process
also means a strong focus on key issues,
and less chance of getting sidetracked by
marginal factors.
Most significant, Davis concluded,
there is a greater likelihood of a settlement
ahead of the final arbitration ruling.
Co-panelist Bruce Beron, president
of Litigation Risk Management Institute, a Palo Alto, Calif., consulting
firm, focused his presentation on developing the expected value arbitration
decision trees. He explained that each
side constructs its own independent
decision tree, which maps out the party’s view of how the case might play
out. Each shares its decision tree with
the arbitrator, who “is free to use elements of either, both, or develop a different tree.”
In response to an audience question
about establishing a value before a fundamental legal basis for the case is developed, Beron replied that the decision
trees must account for dispositive issues
in the case, and analyze them against the
case’s other, less predominant factors.
An audio recording of the session is
now available for CLE credit on demand at WestlegalEdcenter.com, with a
25% discount for CPR members.
***
The two concluding sessions from the
Annual Meeting will be highlighted
in the May CPR News.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
DOI 10.1002/alt.20221
(For bulk reprints of this article,
please call (201) 748-8789.)
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