CPR INSTITUTE FOR DISPUTE RESOLUTION ...... ADR EDUCATION......... Page 105 Associate Attorney General Raymond C. Fisher explains why the U.S. Justice Department wants more emphasis on problem-solving in the legal profession. ............ STATE ADR Page 105 There’s been a lot of ADR activity in Michigan recently. Laurence D. Connor of Detroit’s Dykema Gossett describes rule changes under consideration by the state Supreme Court, and a recent decision authorizing and setting standards for pre-dispute employment arbitration agreements. ............. ADR TECHNIQUES Page 106 Can the practice and study of ADR be improved over dinner? Researcher Christopher Honeyman of Madison, Wis., updates his Theory-toPractice work with details about the Moveable Feast. SPECIAL SUPPLEMENT: ADR 2000...... Page 107 Excerpts from the third CPR online seminar, “The Art of Mediation Advocacy: An Insider’s Guide,” in which moderator Peter Zeughauser and 10 panelists discuss preparing and participating in mediation sessions. WWW.CPRADR.ORG VOL. 17, NO. 6 JUNE 1999 Millennium Problem Solving: Improving the Legal Profession BY RAYMOND C. FISHER For some time, it has been clear that in many cases the customary, formal ways of conventional litigation have less and less utility in a society that is increasinglycomplex, competitive,and expensive. O n many occasions, it is neither cost-effective nor substantively advantageous to proceed by way of lawyers making arguments, engaging in a blitzkrieg of discovery and motions, and then waiting for and appealing- decisions from administrative and judicial bodies. Clients want to remain in control of their disputes, but YOU can’t control the outcome of a matter once it is presented to a court for resolution. Moreover, when a court or jury decides who wins and who loses, that ruling may not resolve the mderlying problems that caused the suit to be filed in the first place. Thus, this movement is growing, not out of the benevolent altruism of the participants, but rather out of the recognition that in many circumstances, there are better ways to resolve disputes. We know all this. And becauseAttorney GeneralJanet Reno knows that ADR works well when used in appropriate circumstances, we are continuing to grow our program at the U.S. Department of Justice. NOWI know that some have suggested using (continued on page 120) .................. ........... ADR BRIEFS Page 117 An environmental ADR training resource debuts on the Web. ............ CPR NEWS Page 118 An anecdote about finding and hiring a neutral, as well as new information on accessing CPR materials via the Internet. DEPARTMENTS ADR Briefs ....................... Page Cartoon by Chase ............. Page CPR News ........................ Page CPR 20 Past, 20 Future __. Page Online Info .............. Page 118, Index Info ......................... Page 117 117 118 119 124 119 In the W&e of Rule Changes, A Michigan Tradition May Fade BY LAURENCE D. C~NNOR Two recent developments signal a growing recognition and acceptance ofalternative dispute resolution by the state courts in Michigan. The developments indicate broader ADR use, and less reliance on a unique Michigan ADR process. First, on May 10, the Michigan Supreme Court has ordered publication of proposed new and amended court rules for public comment. The rules would authorize trial courts to require parties in general civil and domestic relations actions to attempt to resolve their disputes through ADR, including mediation, minitrial, summary jury trial and early neutral evaluation. The rules and amendments were recommended to the Supreme Court by a special dispute resolution task force appointed by the Court early last year. The task force included lawyers, judges, court administrators and in-house counsel from around the state. In its report delivered to the Court in January 1999,the task force recommended the adoption of rules that would allow a judge to order a nonbinding ADR process in all contested civil matters. The rules provide that counsel intending to try the case and persons with full settlement authority could be required to attend the ADR proceedings. The court would (continued on page 122) Rule Changes May Fade ‘Michigan Mediation’ (continued from front page) nominate neutrals from an approved court list. The rules, however, also encourage parties to select their own dispute resolution process and provider, and would allow parties to opt out of using a nonbinding process for good cause, or for a court to find that ADR is not appropriate. Other portions of the rules establish qualifications and standards of conduct for courtappointed mediators,and allow parties to select any neutral regardless of whether he or she meets the requirementsfor court appointment. In addition to proposing rules, the task force also made several recommendations to the Court. One key proposal urges changing the name of “Michigan Mediation” to “Case Evaluation” in order to reduce confusion. Michigan Mediation, a local tradition, is different from the process generally understood to be mediation. It involves a three-attorney panel that evaluates a case for settlement. Other recommendations include appointing a standing committee to oversee the implementation, delivery and evaluation of ADR services; giving court-appointed mediators the status of quasi-judicial immunity; making ADR processes available both pre-filing and throughout the course of litigation; promoting legislation assuringconfidentialityin ADR processes; and exploring the application of mediation in criminal proceedings and in the concepts and practices of restorative justice. Comments will be received for 60 days after publication, which is expected this month. In its May 10 order, the Supreme Court stated that it was “particularly interested in receiving comments on provisions of the proposed new rule which authorizes courts to order parties to utilize a non-binding alternativedispute resolution process.” In preparing the report, the task force had debated sharply the question ofwhether courts should be permitted to order alternative dispute resolution. After receiving comments, the Court may adopt the rules as proposed, amend the rules, or reject the proposed rules altogether. Laurence D. Connor is a senior litigation member of Dykema Gossett PLLC i n Detroit, where he practices complex business and tort litigation and ADR. He edits the ADR Newsletter for the Michigan State Bar Association‘s ADR section, which will cover the developments i n this article i n its June issue. He also partkipated as a panelist i n the ADR 2000 online seminar featured i n a special supplement on page 107 of this issue. P R E DISPUTE AG RE E M E NTS PERMITTED The second development involves Michigan court approval of arbitration agreements imposed as a condition of employment. In April,a special conflictspanel of the Michigan Court ofAppeals held in a 4-3 decision that employers may contractwith their employees to arbitrateprospective civil rights claims. The case is Rembwtv.Ryan?Family Spakhouse,Inc., 1999 WL. 203148, Michigan Court ofAppeals No. 196542 (Slip. Op. April 9, 1999). The Court of Appeals is the intermediate appellate court in Michigan. The special conflicts panel was appointed to resolve the conflict in the cases of Rushton v. Meijer, 225 Mich. App. 156; 570 N.W.2d 308 (1997); and Rembert v. Ryan?Family Steak Houses, 226 Mich. App. 821; 575 N.W.2d 287 (1997) (referred to in this article as Rembert I). In Rushton, the Court of Appeals held that Michigan public policy did not permit employees to waive pursuit of a civil rights claims in a judicial forum as a condition of employment. The Court also rejected the defendant’s contention that Michigan public policy was preempted by the Federal Arbitration Act. In RembertI, the plaintiff signed an agreement to resolve all future employment-related disputes through arbitration. The plaintiff later sued the defendant in circuit court for race discrimination and disability discrimination under the state’s civil rights statutes. The trial court dismissed the plaintiffs claims based on the arbitration agreement. On appeal, the assigned panel of the Michigan Court ofAppeals was bound by court rule to follow the decision of the Rushton panel that had held that such agreements were contrary to public policy-but the Rembert I panel clearly stated that it would hold otherwise if it were free to do so. Pursuant to a procedure for resolving conflicts between Court of Appeals panels, the Court appointed a special conflicts panel to address the issue. The special conflicts panel upheld the arbitration agreement in its April opinion (referred to here as “RembertIY).It stated “ [ V e join the majority of courts and hold that so long as no rights or remedies accorded by the statute are waived, and so long as the procedure is fair, employers may contract with their employees to arbitrate statutory civil rights claims.” In a carefully constructed opinion, the majority reviewed both Michigan and federal common and statutory law regarding policies favoring arbitration. Relying heavily on Gilmer v. Interstate/Johnson Lane COT., 500 U.S. 20 (1991), and Cole v. Burns Int’lSec. Servs.,lO5 E3d 1465 (D.C. Cir. 1997), the Court established three prerequisites to a valid agreement to arbitrate civil rights claims under Michigan law: (1) there must be a valid contract covering the claims; (2) the statute must not prohibit such agreements; and (3) the arbitration agreement cannot waive substantive rights and remedies and the arbitration procedures must be fair. After finding that the contract between the plaintiff and his employer was valid and that the applicable Michigan civil rights statutes did not specificallyprohibit such agreements, the Court examined whether the agreement provided procedural fairness to the plaintiff. It delineated the following minimum requirements of fairness and held that the agreement met them: (a) clear notice to the employee of a waiver of the right to adjudicate discrimination claims in a judicial forum; (b) a right to representation by counsel; (c) a neutral arbitrator; (d) provision for reasonable discovery; and (e) a fairly conducted arbitral hearing. Interestingly, although relying heavily on Cole, the majority did not include among the fairness requirements a rule that the employer must pay the fees of the arbitrator and arbitration service. It reasoned that, as a practical matter, claimants will have the opportunity to shift these fees to the employer under a Michigan court rule providing that the cost of arbitration proceedings may be taxed as in civil actions and under the provisions in both statutes at issue that complainants may be awarded reasonable attorneys fees. NEW REVIEW STANDARD In another important aspect of the decision, the majority announced a standard for review of arbitration awards involving such claims. Specifically, the majority held that courts must vacate arbitration awards in statutory arbitration disputes when the arbitrator’s legal error is “so material or so substantial as to have governed the award, and but for which the award would have (continued on following page) (continued from previous page) been substantially otherwise.” In order to allow implementation of this standard of review, the Court also held that all arbitral awards under such circumstances must be in writing and contain findings of fact and conclusions of law so that the appropriate standard of review may be meaningfully applied. The plaintiff has filed a motion for rehearing in Rembert IIand undoubtedly will apply for leave to appeal to the Michigan Supreme Court if its motion is denied. One of the grounds for a rehearing asserted by the plaintiff is that Rembert IIdoes not require employers to bear the cost of arbitration proceedings as required by Cole and, therefore, the process is inherently unfair. Left unresolved is the question whether, regardless of Michigan public policy, such arbitration agreements evidence transactions involving interstate commerce and therefore are preempted by the Federal Arbitration Act. Thus, while the adoption of comprehensive ADR court rules and final judicial approval of predispute agreements to arbitrate statutory claims are far from faits accomplis, Michigan courts clearly seem to be moving toward acceptance of broad-based ADR programs, rather than continuing to rely on “Michigan Mediation” as their principal disP pute resolution mechanism. A ‘Moveable Feast’ of ADR Practitioners and Researchers (continued from page 121) quality of discussion on a serious topic likely to be at a table that includes two dozen people? My organizer colleagues, University of Missouri-Columbia School of Law Prof. Bobbi McAdoo and Dickinson School of Law (Carlisle, Pa.) Prof. Nancy Welsh, and I concluded that basic acoustics virtually guarantees that a gathering set up that way will devolve into separate discussions, in which the topic is gradually lost in an entertaining but unproductive series of diversions. Does that seem familiar? We settled on a structurein which the whole group would assemble briefly for a short groundingin the problems at hand, in the form of a scholar and a practitioner recounting some relevant personal experiences. Earlier Theory to Practice events had identified two who combined some emblematic-and troubling--experiences with a willingness to discuss them, semi-privately, among a select audience. Followingthisorientation,the group divided into four tables of six, which we concluded to be the ideal size for an intense discussion. A couple of hours later, the group got back together for a quick rundown on which table had produced what insights, and we retired for the night. Rough notes were produced on the spot by four “reporters,”one at each table. And interest has remained high enough that many who were present for this one-time encounter have taken the time to write detailed comments on the first draft of the resulting document. T H E R E S U L T I N G ’PROTOCOLS’ There isn’t space here to print what we are now calling “not quite protocols.” The protocols continue to be a work-in-progress. But the following illustrates some of the results of a lively and straightforward talk among proficient people who rarely get to draw from each other’s expertise. For example, the development of project protocols represents an important occasion for the practitioners to judge the character and trustworthiness of a particular researcher. The group concluded that no boilerplateprotocols should substitute for the process of explanation and negotiation, so that one side won’t feel blindsided later. Some of things that should emanate from this kind of initial discussion with practitioners: A SENSE OF RECIPROCITY. Without this, the project is unlikely to endure beyond the first few glitches. The researcher needs to build something into the research that most, if not all, of the practitioners involved view as beneficial (e.g., the opportunity for intellectual discussion or introspection, feedback on their own practice, opportunity to improve practice, publicity). The researcher also needs to understand that practitioners are busy and that they need to allocate time efficiently. ADVANCE PROVISION FOR REALITY TESTING W I T H PRACTITIONERS. Research has a way of producing results that surprise practitioners, or even alarm them if disclosed prematurely or without opportunity for feedback. Where the subject matter is sensitive, it may increase confidence in the researcher for an explicit offer to be made that conclusions will be shared initially with the program or by telephone rather than in writing. DISCUSSION OF DATA COLLECTION I N STRUMENTS. Early and frank discussion of how these will work, and what options there may be for incorporating information that is of secondaryinterest to the researcher but important enough to the program to offset the opportunity costs of becoming involved in research, may be important elements of building practitioners’ trust in the research and the researcher. In the first effort, the encounter’s design had a lot to do with the constructive quality of the interaction. The frankness and informality of the discussion are reflected in the tone of the resulting text. Both frankness and informality have been in short supply, in the often-stilted settings in which ADR scholars and practitioners tend to meet. Yet this is a meeting design that‘s relatively easy for other groups to replicate. After all, there are many more local and regional issues that need addressing than broad-scale ones like the “protocols” issue we picked. When everyone involved in a discussion is from the same geographic area, it should be easier to arrange a meeting. The characteristics of a Moveable Feast are not, when you stop to analyze them, all that hard to arrange: A deliberately ephemeral group; a selective invitation list; an informal setting including some sort of food; a “working party” orientation rather than a typical symposium or conference; and a “laborer” who undertakes to codify the results and check back for corrections following the discussion. This is enough to get a goodnatured but blunt discussion going. (The project now has another Moveable Feast slated. Later this month at the U.S. Justice Department, we will take up a different subject: The search for “practical theory” in the dusty archives of researchers whose work has all too often been ignored, when it might yet help to improve practice.) And if researchers and practitioners can feel freer to be forthright about the problems, they are more likely to discover why they hold different perspectives. This can lead both to understand better the value of working together in novel and challenging combinations of interest and backP ground.