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Design and prevention.

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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. 1 JANUARY 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.
Al­ter­na­tives
to the High Cost of Lit­i­ga­tion
Special issue
This month, Alternatives’ publisher, CPR:
International Institute for Conflict Prevention
and Resolution, will mark its 30th anniversary
at its Annual Meeting in New York.
To mark the occasion, Alternatives asked
ADR legends to look ahead. The four articles at right reflect on the anniversary—but
just a little. Mostly, they tell Alternatives
readers—the practitioners, academics, regulators, consumers, and even CPR members
and staff—how to address second- and
third-generation conflict resolution growth
issues in ways that will ensure continued
effective use.
ADR maturity, these articles tell us, has
brought great results, but has exposed some
areas to continuing growing pains. The
results that ADR users have demonstrated
assure us that more innovation—and more
such problems—are on the way.
These articles provide a good roadmap to
what needs to be addressed in the short term
in order to secure long-term viability, utility,
and success in deploying the wide variety of
assessment, prevention, and resolution techniques developed since CPR’s 1979 founding.
• CPR Institute founder James F. Henry,
of Waccabuc, N.Y., discusses how the
changes ADR has produced in legal practice
indicate that more are on the way, probably
in the justice system itself.
• CPR Board Chairman Charles B.
Renfrew, of San Francisco, writes that the
focus will now be on tailoring processes,
and preventing disputes.
• Georgetown Law Center Prof. Carrie
Menkel-Meadow discusses participants’
responsibility to the process—a necessity to
maintain effectiveness.
• Harvard Law School Prof. Frank E. A.
Sander provides keys to growing the profession, also necessary to keep ADR useful
and effective.
At press time, the Jan. 15-16 Annual Meeting
was nearing capacity. To check on last-minute
availability, please visit http://meetings.cpradr.
org, or call +1.212.949.6490.
International Institute for Conflict Prevention & Resolution
Vol. 27 No. 1 january 2009
On CPR’s 30th: Looking to the Future
More Changes Coming
Design and Prevention
BY JAMES F. HENRY
BY CHARLES B. RENFREW
In opening an early CPR Institute meeting, I stated that the goal was to assist in
changing the legal culture by developing
alternatives to the high cost of litigation.
At the time, the assertion seemed a bit bold. But 30 years later we are well on
our way into that cultural change. Given
the strong current desire for change in
our governing institutions and restoring
our competitive economy, reforming civil
conflict resolution is a good focus point,
This is the 30th Anniversary of CPR.
We are celebrating more than an institution. We are celebrating alternative
dispute resolution, which has been one
of the most significant movements in the
U.S. legal system in the past 50 years. Its
phenomenal growth has had a major impact on the practice of law.
Lawyers now view and analyze their
clients’ disputes in a different light because
of the availability of many more resolution
alternatives. ADR also had an impact in
(continued on page )
(continued on page )
The author, of Waccabuc, N.Y., retired in 2000
as president and chief executive officer of the
CPR Institute. He founded the CPR Institute with
a group of corporate general counsel in 1979,
and began publishing Alternatives in 1983.
The author is an arbitrator and mediator in San
Francisco. A former federal judge, he has been
chairman of the CPR Institute’s board of directors for more than two decades.
Maintaining ADR Integrity
Keep Building ADR
By Carrie Menkel-Meadow
BY FRANK E.A. SANDER
Alternative dispute resolution and the
CPR Institute were developed 30 years
ago in reaction to abuses or problems with
conventional forms of dispute resolution,
especially costly and inefficient litigation.
The alternative dispute resolution field
has gone through roughly three stages
since its modern-day revival at the Pound
Conference.
(continued on page )
(continued on page )
The author is A.B. Chettle Jr. Professor of
Law, Dispute Resolution and Civil Procedure
at Georgetown University Law Center
in Washington, D.C. She is a member of
Alternatives’ editorial board, and serves on
the Executive Committee of CPR-International
Institute for Conflict Prevention and Resolution.
She served as Chair of the Georgetown-CPR
Commission on Ethics and Standards in ADR,
which drafted the Model Rule for Lawyers as
Third Party Neutrals, and Provider Principles,
discussed in this article.
The author is Professor of Law Emeritus at
Harvard Law School in Cambridge, Mass. He has
been an Alternatives’ editorial board member
since the newsletter’s inaugural issue in January
1983, and is chairman of the editorial board of
the American Bar Association Section of Dispute
Resolution’s Dispute Resolution Magazine. This
article is based on remarks he made last July
upon receiving a lifetime achievement award at
the annual meeting of the American College of
Civil Trial Mediators, a nonprofit professional
group, at Samoset Resort in Rockland, Maine.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
vol. 27 no. 1
january 2009
Alternatives Thus, the ADR movement is well past
the tipping point. It will continue to develop
and grow for many reasons: Its qualities of
economy, expedience, and pragmatism are,
relative to litigation, compelling. Its compatibility with human values is instinctively recognized, but merit further understanding.
Litigation, as practiced, is incapable of
handling the pace and globalization of our
economy and society, as well as the mass
conflicts society faces today. The judicial
system is in disrepair, lacks resources, and
is seemingly incapable of the litigation
reform that is needed. And where ADR
reform has been instituted, it has largely
been embraced by all involved—judges,
court staff, litigants, and lawyers.
PURSUING PROMISE
This cultural change, leading to better conflict resolution, remains very promising.
But work remains. There are several areas
that require special effort and attention.
Even with the change described above,
too many members of the public, the bar,
and even the judiciary remain uninformed.
The ADR movement itself has a continuing task of educating and communicating
the potential of its revolution. Sustained
public confidence will require continuing
development of professional standards and
ethics among neutrals, and their sponsoring organizations.
Notwithstanding excellent models of
teaching, scholarship, and research, the law
schools need to catch up to the needs and
the sophistication of the practice.
For example, the tools of ADR and
negotiation too often are presented in a Renfrew: Prevention
(continued from page )
the international scene. While its influence
abroad lags behind the U.S. experience, its
use is expanding.
Rapid Development;
Vital, Vibrant Future
ADR is now firmly engrained in the consciousness of the bench and the bar. It is an
integral part of modern practice. But it was
not always so.
Thirty years ago, with the possible
survey course—an elective—and remain
adjunct to the traditional curriculum. Not
always, but often. The relevance of other
academic disciplines still needs to be developed. The performance of ADR remains
obscure because of inadequate proof of its
effectiveness via research and data.
Many major corporations increasingly
offer impressive models in managing, preventing and quickly resolving their conflicts. Law departments doubtless will continue to adopt and expand these practices,
because they are cost effective and offer
better results.
Given the current pervasive calls for
political change, government surely will
be out front—as it was throughout much
of the 1990s—with programs and procedures to avoid protracted costly litigation.
With the massive caseloads of government
legal departments, they are in a unique
position to be agents of change by putting in place a protocol requiring negotiation, then ADR, as the first steps in civil
conflict.
A government committed to change
also has the opportunity to develop ADR
processes that would serve to make civil
justice available to the middle class and
poor—which today’s litigation limits, or
prohibits altogether.
***
The greatest opportunity for change lies in
the judicial system itself.
It will need to make a major effort to
reform litigation procedures, and to incorporate a competent commitment to court
ADR procedures. To date, the judiciary
exception of Harvard, law schools did not
recognize or value the use of ADR procedures. Today, every major law school offers
such courses.
A little more than a decade ago, the
Harvard Business School added a new
dispute resolution course as part of its
required curriculum. It was the first new
required course in a number of years.
Almost 20 years ago, the American Bar
Association created the Section of Dispute
Resolution. It was the first new section the
ABA established in more than 19 years.
Today, all major law firms have practice
groups that focus on ADR.
More than 1,500 law firms and 4,000
has exhibited uncertainty, accompanied by
deficient data and resources, rather than
pursue the full potential of court-annexed
ADR. The criteria for selection and training
of judges have been targeted on litigation as
opposed to those skills needed in the overwhelming percentage of their cases.
But judges often aren’t comfortable
relinquishing their own self image as a lawmaker when they are more frequently
needed to preside and promote over problem solving. They need to come grips,
universally, with their role in promoting
settlement.
The nation needs to assemble a protracted, well-financed, public/private effort, for a continuing critique of the civil
judicial system that will redefine the role
and operation of the federal courts in
providing fair, economic, and expeditious
civil justice for all in this still-new millennium. A new Pound Conference would be
a good start.
In the 21st century, ADR’s potential
and future success is closely tied to the
quality and management of the courts.
And vice-versa. Such a focus by the courts
would serve to raise the profile of the judiciary and in turn help deal with issues
like judicial compensation, independence
and quality.
The CPR Institute could play a key
role in assembling this important undertaking. And the bar has historically been
at the front end of systemic change. To
borrow from the Old Testament: If not us,
who? If not now, when? Q
DOI 10.1002/alt.20260
(For bulk reprints of this article,
please call (201) 748-8789.)
operating companies have signed the CPR
Pledge since the 1980s, and as a result they
consider using ADR options before resorting to litigation.
The Civil Justice Reform Act of 1990
made 94 district courts as laboratories in
the use, development, and evaluation of
ADR processes.
A number of states, led by Texas and
Florida, have made mediation mandatory
in all civil cases before a matter may go
to trial. Agencies and departments of local, state, and federal governments have
adopted the use of ADR, in litigation and
in contracting.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on next page)
Alternatives
vol. 27 no. 1
Renfrew: Prevention
(continued from page )
ADR’s birth and rapid development
has been in large part the product of two
men who are here and celebrating with us
in these pages CPR’s 30th Anniversary.
Modern commercial ADR traces its
beginning to 1976, when Harvard Prof.
Frank E.A. Sander, delivered his seminal
paper on the “Multi-Door Courthouse”
at the Pound Revisited Conference at St.
Paul, Minn.
In that paper, he envisioned courts as
resolvers of disputes not merely as the situs
of trials. He gave the intellectual foundation and framework for the ADR movement by redefining the court’s role in a complex society, and focused attention on
the variety of ways by which disputes may
be resolved.
Three years later, CPR founder James
F. Henry began building an organization
on Frank Sander’s foundation. He gave up
his position as the head of a large nonprofit
foundation to develop ADR use.
Henry’s genius was that he built an
organization principally constituted of the
consumers of legal services, instead of the
major actors in the legal system—lawyers
and judges. It is important to recognize
that clients, not the courts or lawyers, were
primarily responsible for ADR’s creation
and early development.
The consumers who are the general
counsels of major U.S. corporations shared
the Henry view that there had to be an
alternative to the way commercial disputes
were handled because of the costs, delays,
and uncertainty of outcome in traditional
litigation. With this nucleus, it was easy
to attract attorneys from major firms interested in obtaining clients, and judges
interested in the disposition of cases.
HOW DOES IT WORK?
As the CPR Institute developed and the
ADR use expanded, there were questions
about its use and impact on traditional
litigation. What was it? How does it work?
Doesn’t it add another layer of process
which itself adds additional costs and
delays?
After ADR became firmly ensconced
as part of mainstream U.S. legal practice,
fulfilling CPR’s organizational goal, new
concerns arose. Did ADR create a two-
tiered judicial system—one for those who
could afford it and another for those forced
to stay in the court? ADR creates no precedents. There was no public visibility or
accountability.
In addition, as the ADR use expanded
into the public sector, additional concerns
involving ethics and professional standards
arose.
The questions have been addressed and
answered, and new ones have arisen as the
profession has changed and adapted.
TWO TRENDS
We are now in a period of great change.
There is a global economy, with great turmoil in the world’s financial markets. The
question naturally arises about the future
of CPR and ADR in these circumstances.
The CPR Institute has been in a unique
position to address the concerns above in
establishing best practices, not just for the
use of various generic ADR processes but
for particular industries.
Two major trends will affect ADR in
this century. The first is that preventative action will be the leading principle
of ADR. The emphasis will be on dispute
avoidance: How to prevent differences
from becoming controversies by identifying those sensitive areas in which disputes
are likely to arise, and dealing with them
promptly. See, for example, the multitrack
processes built into the construction contracts of the Hong Kong Airport when
they were drafted a decade ago. Early dispute evaluation also will become increasingly important.
The second trend is that consumers
are going to tailor ADR processes to their
particular needs and concerns. Time will
be spent on the design of the system to be
used. The procedures to be followed in an
ADR process will be carefully constructed
to meet the needs of those participating
in that process. At the same time, neutrals
will be selected with great care, based upon
far greater knowledge of their particular
skills, strengths and experiences.
We live in an increasingly complex
world with an explosion of information
with new techniques to capture, store,
collate and retrieve data. Time increasingly will be scarce. The large blocks of
time required for traditional trials and
arbitrations will be too time consuming
and costly.
january 2009
Travel in the future will be via the
computer and teleconferencing. Parties
need not be at the same location. Segments
or all of the proceedings will be captured
on videotape and data stored on computers
and shown at the convenience of the parties and neutrals.
Databases will be maintained to assist
in the evaluation of disputes. They will
assist both parties and neutrals in evaluating claims made in the dispute resolution
process. These data will be available at
the parties’ and neutrals’ convenience, on
demand.
While mediation will continue to be
the major ADR process used, arbitration
also will continue to be the predominant method for resolving international
commercial disputes. The alternative to
ADR—the use of host country courts—is
simply not acceptable in today’s world. As
the world becomes a more interdependent
global economy, investments will flow into
those countries where there are prompt
and fair dispute resolution mechanisms.
All major contracts will have multitrack dispute mechanisms—with increasing use of mediation in the international
areas.
There will be public funding of ADR
processes where the parties are not able to
pay for those services. These will chiefly be
in the area of court-annexed ADR processes. Streamlined arbitration will be available
for certain commercial cases with limited
discovery, quick hearings and a prompt
reason decision. Indeed, parties also may
adopt and adapt an appellate ADR process
if they so wish.
***
These are some of the changes which will
come in the new millennium. There also
will be a vibrant and vital future for ADR.
The future for the CPR Institute is
promising, too, if we continue to build on
our strengths and uniqueness. We must
continue to involve the users of ADR services, not just be an organization of ADR
providers. If CPR continues to be supported by those who recognize its unique role
in the ADR movement, it will continue to
flourish and perform the leadership role it
has since its inception. Q
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
DOI 10.1002/alt.20259
(For bulk reprints of this article,
please call (201) 748-8789.)
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