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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. 24 NO. 3 MARCH 2006
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 $190.00 for individuals and $215.00 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, 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.
50 ALTERNATIVES
VOL. 24 NO. 3 MARCH 2006
CPR NEWS • CPR NEWS • CPR NEWS
DISCOUNTS ON
ALTERNATIVE’S COMPILATION
with introductions to six topical sections
featuring 43 articles—provides basic skills;
advanced techniques and tricks of the
Juris Publishing is offering CPR Institute trade; examples of mediation’s application
members a 30% discount on”Mediation: to traditional and unconventional setApproaches and Insights,” which was tings; advocacy-in-mediation practices;
published last year.
process and system design help, and legal
“Mediation: Approaches and In- developments.
sights”—edited by Russ Bleemer, who is
The articles, adapted and updated
the newsletter’s editor—is a
from the pages of Alternacompilation of articles from
tives—which the CPR InstiAlternatives’ past decade. It
tute has produced for corpofeatures some of the most
rate counsel and law firms
significant recent thoughts
ADR RESOURCES since 1983, and co-publishes
on mediation practices
with Jossey-Bass, a unit of
from leading practitioners.
John Wiley & Sons, Inc.—
The book includes cuttingprovide a comprehensive
edge mediation techniques,
portrait of the state of curtrends, and development of
rent business mediation use,
the law of ADR.
and project the practice’s future course.
CPR members can buy the book for
“Mediation: Approaches and In$52.50 with a special Members Only sights” can be ordered from Juris Publishpassword, available after logging in at the ing at Web site above, or from Juris Publink at www.cpradr.org for “CPR Fea- lishing Inc., Huntington, N.Y.; (800)
tured News and Events.”
887-4064 in the U.S. and Canada, or
In addition, Juris is offering a 15% (631) 350-0200.
discount to members of the general public via its Web site at www.jurispub.com.
The collection of think pieces, inves- ONLINE SUBMISSION FOR
tigations, and practical guidance demon- U.S.-CHINA BUSINESS DISPUTES
strates the recent evolution of commercial
mediation practice. The articles include The U.S.-China Business Mediation Cenanalysis of the profession’s changes, ter accepts cases online at the Internaprocess design structures, and court cases. tional Institute for Conflict Prevention &
The volume—more than 300 pages,
(continued on page 64)
Alternatives
TO THE HIGH COST OF LITIGATION
Editorial Board
CHAIRMAN
THOMAS J. STIPANOWICH
International Institute for Conflict Prevention & Resolution
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
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
LAURA EFFEL
NANCY ROGERS
LeClair Ryan
Flippin Densmore
Roanoke, Va.
Ohio State University
College of Law
Columbus, Ohio
LAWRENCE J. FOX
DAVID L. SANDBORG
Drinker, Biddle & Reath
Philadelphia
City University
of Hong Kong
Hong Kong
MARC GALANTER
University of Wisconsin
Law School
Madison, Wis.
FRANK E.A. SANDER
WHITMORE GRAY
IRENE C. WARSHAUER
Fordham University School of
Law/University of Michigan
Law School
New York
Fried & Epstein
New York
JEFF KICHAVEN
Milberg Weiss Bershad
& Schulman
New York
Jeff Kichaven, A Professional
Corporation
Los Angeles
JEFFREY KRIVIS
First Mediation Corp.
Los Angeles
Harvard Law School
Cambridge, Mass.
MELVYN I. WEISS
ROBERT S. WHITMAN
Orrick, Herrington & Sutcliffe
New York
GERALD R. WILLIAMS
HARRY N. MAZADOORIAN J. Reuben Clark Law School
Quinnipiac Law School
Hamden, Conn.
Publishers:
Thomas J. Stipanowich
International Institute for Conflict
Prevention & Resolution
Editor:
Russ Bleemer
Susan E. Lewis
John Wiley & Sons, Inc.
Production Editor:
Chris Gage
Brigham Young University
Provo, Utah
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, 575 Lexington Avenue, 21st Floor, New York,
NY 10022; E-mail: alternatives@cpradr.org.
Copyright © 2006 International Institute for Conflict Prevention & Resolution. All rights reserved. Reproduction or translation of any part of this work beyond that
permitted by Sections 7 or 8 of the 1976 United States Copyright Act without permission of the copyright owner is unlawful. Request for permission or further information should be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030-5774; tel: 201.748.6011, fax:
201.748.6008; or visit www.wiley.com/go/permissions.
For reprint inquiries or to order reprints please call 201.748.8789 or E-mail reprints@wiley.com.
The annual subscription price is $190.00 for individuals and $215.00 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
64 ALTERNATIVES
VOL. 24 NO. 3 MARCH 2006
ADR BRIEF • ADR BRIEF • ADR BRIEF
(continued from previous page)
Referring to FEMA, Bill Bailey, of the
Hurricane Information Institute, says, “I can
understand the positions they’re taking,”
quickly adding that resolving disputes isn’t
the flood insurance program’s biggest problem. “One in four in New Orleans didn’t have
flood insurance,” he says, “and an even bigger
question is that the whole program is in need
of retooling, revamping, and [being brought]
up to date. The numbers are shockingly low
in light of today’s real estate values and costs.”
High Hopes
In the meantime, the neutrals who will be
working the Gulf Coast cases uniformly have
high hopes for ADR’s ability to help clean up
some of the mess. “Some of the hard ones,”
says former Mississippi Supreme Court Justice Jim Roberts, “will need litigation.” But,
adds Roberts, who is chairman of the state
bar association’s ADR committee, the ADR
program “will be successful.”
Former Mississippi state bar association
president Richard T. Bennett says that once
the ADR program is up and running, “We
will have the capacity and competence to
appropriately handle these claims to the satisfaction of all parties in interest.”
Says Bennett, who is name partner in
Jackson, Miss.-based Bennett Lotterhos
Sulser & Wilson P.A., current worries are
finding buildings where the mediations can
be held, and dealing with things like accessibility, parking, and security. “The kinds of
things you take for granted must be planned
to a ‘T,’” he says, adding,”Ultimately, it will
be a successful project.”
Future Disasters
More broadly, the disaster-related facilities
show “now, more than ever, the value of
ADR or mediation,” says Melvin Rubin, a
Miami attorney who has worked on designing and implementing the Florida hurricane
mediation programs, including the Hurri-
cane Andrew relief.
The disasters are so large, he explains,
that they must expand to include public
participation, because the recovery extends
well beyond the means of even the largest
private insurance carriers. Rubin says that
ADR facilities’ deployment comes not only
from the scope of the natural disasters, but
also that the profession is on notice of the
potential for such programs for man-made
events, such as terrorism or Chernobyl-style
nuclear accidents.
Depending on the occurrence, says Rubin—who will speak on disaster mediation in
a seminar billed to cover cutting-edge ADR
topics this month at Loyola University
School of Law in Los Angeles—“ADR or
some kind of legislation is going to have to
come down the pike. The private sector isn’t
going to be able to handle the entire load
without some sort of governmental interven
tion or assistance.”
DOI 10.1002/alt.20118
(For bulk reprints of this article,
please call (201) 748-8789.)
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 50)
Resolution’s home page at www.cpradr.org, under “CPR Featured News and
Events.”
The brief mediation submission form,
in both English and Mandarin, allows
submission of transnational disputes to
mediation via the Internet.
Coinciding with the CPR Annual
Members Meeting in January 2004, CPR
announced the business mediation center’s
formation to serve companies doing business in China.
HERE’S HOW TO GET
ALTERNATIVES
The center operates in New York and
Beijing in association with the China
Council for Promotion of International
Trade, which works to increase business
opportunities for foreign investment in
China. The center offers a private method
of resolution that is speedier and less ex
pensive than courts.
Altern
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DOI 10.1002/alt.20116
(For bulk reprints of this article,
please call (201) 748-8789.)
CORRECTION
(continu
ed on
page 169)
In the credit line to the front page January 2006, article, “Analyzing the Potential for
ADR in Estate Planning Instruments,” by John R. Phillips, Scott K. Martinsen &
Mathew L. Dameron (24 Alternatives 1 (January 2006)), a membership in the American Colllege of Trust and Estate Counsel was incorrectly attributed. Scott K. Martinsen is a fellow in the college. Alternatives apologizes for the error.
• Free for CPR members in
Members Only:
•
www.cpradr.org
• Subscribe to Alternatives:
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
•
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