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Does The Apprentice teach a new mediation model.

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Alternatives
TO THE HIGH COST OF LITIGATION
VOL. 22 NO. 5
CPR INSTITUTE FOR DISPUTE RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publishers:
Thomas J. Stipanowich
CPR Institute for Dispute Resolution
Susan E. Lewis
John Wiley & Sons, Inc.
JUNE 2004
Editor:
Russ Bleemer
Jossey-Bass Editor:
David Famiano
Production Editor:
Chris Gage
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 CPR Institute for Dispute 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, CPR Institute for Dispute Resolution, 366 Madison Avenue, New York, NY 10017-3122; E-mail:
alternatives@cpradr.org
Copyright © 2004 CPR Institute for Dispute 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 $175.00 for individuals and institutions. CPR Institute for Dispute 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, CPR Institute for Dispute 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 CPR Institute for Dispute Resolution Web site at www.cpradr.org.
ABOUT THE CPR INSTITUTE FOR DISPUTE RESOLUTION
ORGANIZED BY PROMINENT CORPORATE COUNSEL, THE
CPR INSTITUTE FOR DISPUTE 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 Institute for
Dispute Resolution, 366 Madison Avenue, New York, NY 10017.
Tel: (212) 949-6490. Fax: (212) 949-8859. E-mail: info@cpradr.org
VOL. 22 NO. 5
JUNE 2004
CPR INSTITUTE FOR DISPUTE RESOLUTION
ALTERNATIVES 79
Does The Apprentice Teach A New Mediation Model?
BY MICHAEL S. OBERMAN
There can be no dispute that Donald
Trump’s The Apprentice is a huge reality
show success. That success breeds media
attention, and there has been a flurry of
articles—with different answers—on
whether The Apprentice offers lessons for
business school students or, more generally,
for the business community.
With so much attention, it is ripe to
ask: Does The Apprentice offer any lessons
for alternative dispute resolution? Would
parties accept or request an Apprentice-style
mediation?
The Apprentice was presented as the
“ultimate job interview.” Sixteen candidates were selected to compete for a single
position as an apprentice to New York real
estate mogul Donald Trump—to run one
of his Trump Organization businesses at a
$250,000 annual salary.
The candidates were divided into
teams, and each week the teams were
assigned a different task, such as trying to
lease a Trump penthouse for a corporate
event for the highest amount. The consequences for coming in second were dire: A
member of the losing team was sent packing each week by the now famous Trump
words, “You’re fired.”
The process of deciding who would be
fired holds the most interest for ADR
practitioners. The losing team’s project
manager for the particular task, joined by
two team members selected by the manager, had to face Trump in the “boardroom,” where Trump and two of his senior
executives attempted to apportion blame
for the loss.
The boardroom segment was marked
by a series of staccato questions, as Trump
confronted each candidate with specific
issues and then had each candidate react to
what the others were saying. There was a
flavor of law school Socratic method in the
questioning, yet the segment was paced
The author is a partner in the Litigation and
Intellectual Property departments at New York’s
Kramer Levin Naftalis & Frankel LLP, and also
serves as an arbitrator and a mediator. He is a
member of the CPR Panels of Distinguished
Neutrals.
quickly to allow a resolution within the
broadcast time.
The final episode followed this general
format, but there were only two candidates participating in more extensive questioning, and commenting about himself
and the other candidate.
There were questions like, Who would
be the best fit for this organization? Why
do you think you should win?
NEUTRALS’
SKILLS
By coincidence, I was preparing to be a
neutral at a mediation when I took a break
to watch the first season’s final episode of
The Apprentice on April 15. [The show is
prospecting for new candidates now
and will return for a second season this
fall. See www.nbc.com/The_Apprentice.]
With the case file in front of me, and the
questioning building to the ultimate conclusion, I was struck that The Apprentice
might offer a type of technique for less
complex mediations.
Parties often comment that, in a fullday mediation, there are many slow parts
and downtime. Some feel that only the
final hour is truly productive. Could The
Apprentice suggest a way to get to that final
hour sooner?
I thought it was worth a try.
CLASSIC COPYRIGHT CASE
The mediation I conducted was a copyright case of a classic variety: an alleged
infringement of a fabric design for use in
women’s clothing. The complaint
included not only a copyright claim, but
also a trademark claim, and various common law claims.
The pre-mediation submissions indicated that the potential litigation costs
would be high in relation to the dispute
amount, and the parties had each expressed
a desire to settle before incurring those
costs.
I began by confirming that the parties’
attorneys had participated in mediations
before, and I confirmed that I could dispense with the usual introductory formalities and get to the essence of the dispute. I
then collapsed the stages of gathering
information, developing options, narrowing options and closure.
First, I asked the plaintiff ’s counsel to
briefly state the facts. I then asked the
defendant’s attorney to respond, and the
plaintiff ’s lawyer to reply. Because the facts
were relatively simple—the plaintiff sent a
design to the defendant but the defendant
elected not to contract with the plaintiff to
manufacture the garments—this step was
completed in a manner of minutes.
I asked the plaintiff ’s counsel to state
the basis for the first claim. I asked the
defendant’s counsel to respond and the
plaintiff ’s counsel to reply. We moved
briskly through all of the claims, as I
worked to establish a cadence that elicited
crisper responses—like The Donald testing Apprentice candidates about a task.
I followed a similar approach for each
measure of damages.
All elements of the case were framed in
less than half an hour.
In caucus, I told the plaintiff to try to
see if we could come quickly to closure. I
asked the plaintiff ’s attorney pointed
questions about the claims and the measure of damages—until the attorney and
the plaintiff ’s president felt comfortable
putting a demand number on the table.
I took the number to the defendant and
asked the defendant to provide its best settlement number to avoid multiple rounds
of caucuses.
By then, the case had a definite tempo.
I presented the defense number, explaining
that I sensed very little room for movement. The plaintiff decided that the number was close enough to accept and to avoid
prolonged discussions.
Total elapsed time: 45 minutes. With
no commercials.
(continued on next page)
80 ALTERNATIVES
(continued from previous page)
This approach to mediation departs from
many established practices and would not
be right for most cases. For example,
where emotions are running high, time to
vent is essential. Where the facts or legal
principles are complex, a more studied
exchange is needed. And, where the stakes
CPR INSTITUTE FOR DISPUTE RESOLUTION
are high and the spread between the parties is large, hard work in caucuses cannot
be avoided.
But there might be a role for Apprentice-style mediation in ADR practitioners’
armamentarium. For the technique to
work, the parties, or at least their counsel,
should be experienced in mediation; the
parties must be willing to abbreviate the
proceeding; the case must not be com-
VOL. 22 NO. 5
JUNE 2004
plex; the stakes cannot be very high; and
the mediator must be adequately prepared
by pleadings and pre-mediation statements to move at a good clip with an
activist style.
It is an approach to consider. It might
lead to settlements and—who knows?—
might even lead to a mediation reality television show.
DOI 10.1002/alt.20013
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS •
(continued from page 78)
Oberly is a longtime conflict resolution supporter. She has advocated publicly that certified public accountants
use mediation and arbitration clauses in
retainer letters. She has overseen the
installation of ADR clauses in her firm’s
engagement letters and vendor contracts
since she was elevated to general counsel
a decade ago.
She is former assistant to the U.S.
Solicitor General and a former partner in
the Washington office of Mayer, Brown
& Platt, which is now Mayer, Brown,
Rowe & Maw.
For information on event sponsorship,
please call CPR at (212) 949-6490.
HOLD THE DATES:
NEW MEMBER
MEETINGS ANNOUNCED
The next CPR members gathering will
be the first CPR European Business
Mediation Congress on Oct. 21–22 at
the Steigenberger Kurhaus Hotel and
International Peace Palace in The Hague,
Netherlands. It will be the first meeting
in Europe. Among the speakers will be
the United Kingdom’s most senior judge,
Harry Woolf, who is the Lord Woolf of
Barnes, Lord Chief Justice of England
and Wales.
Also on the horizon:
• CPR Annual Meeting
Jan. 20–21, 2005
Plaza Hotel
New York
• 2005 Spring Meeting
June 16–17, 2005
Four Seasons Hotel
Chicago
• 2005 Fall Meeting:
The Second Annual CPR European
Business Mediation Congress
Sept. 22–23, 2005
The Savoy
London
Watch Members Only at www.cpradr.
org for registration information.
INTERNATIONAL PROJECT
IS UNDERWAY
The new CPR International Project
recently acknowledged the participation
of five CPR members for their efforts and
support.
The project is a coordinated series of
initiatives to encourage and support the
growth of mediation and other tools to
manage and resolve commercial disputes
in an interest-based manner.
CPR thanked the following members
for their support: London-based British
American Tobacco; Johnson & Johnson
of New Brunswick, N.J.; Atlanta’s BellSouth Corp.; ConocoPhillips Co. in
Houston; New York-based Pfizer Inc.,
and E.I. du Pont de Nemours & Co. of
Wilmington, Del.
The international ADR initiatives
currently are taking place in Europe and
China.
For more information, contact Peter
Phillips at pphillips@cpradr.org.
CPR TRAINING VIDEO
IS AVAILABLE
The CPR Institute joined last year with
the International Trademark Association,
a New York–based nonprofit membership
group of trademark owners and professionals, to produce an instructional
videotape, “Resolution Through Mediation: Solving a Complex International
Business Problem,” which is now available.
The videotape debuted at INTA’s
Annual Meeting in Amsterdam a year
ago. In the tradition of CPR’s 1994
video, “Mediation in Action,” the latest
video shows the benefits of mediation by
portraying how it works. The video
depicts an international dispute involving a trademark infringement claim
between a Russian distributor and a
U.S.-based alcohol beverage producer
before a German mediator.
Study guides have been prepared by
CPR, and training modules will be available for preliminary and advanced training using the tapes.
For information on pricing, availability and use, please contact CPR at (212)
949-6490 or E-mail info@cpradr.org.
CPR and INTA first collaborated in
1994, publishing a book titled ADR in
Trademark and Unfair Competition Disputes, edited by William A. Finkelstein.
That book is available from INTA at
www.inta.org/pubs or by calling (212)
768-9887.
(continued on page 88)
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