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Waiver of Class Action Without Arbitration Provision

Fri, 2016-09-30 20:09

In considering the debates raging about the enforceability of class action waiver provisions in arbitration clauses, I have always assumed that the arbitration clause was there just as a vessel to hold the class action provision.  That is, I thought that there was no vehicle to waive class actions outright.  Indeed, I once wasted a good portion of my not-much-remaining youth trying to find any instance where a party to a contract included a waiver of FRCP 23 while contemplating litigation, and I couldn’t find one.

Well, I wan’t looking in the right places.

Many thanks to Karl Bayer, whose indispensable blog Disputing.com has alerted us to an appeal before the Fifth Circuit Court of Appeals that was argued earlier this week.  In Convergys Corporation (363 NLRB No. 51, Nov. 30, 2015), an employer was found to have violated  Section 8(a)(1) of the National Labor Relations Act by requiring employees, as a condition of employment, “to agree that they would not pursue any claim or lawsuit relating to their employment on an individual basis.”  The rule was found unlawful because it explicitly restricts activities protected by Section 7 of the Act.  Noted the Board:

The Board has long and consistently held, with uniform judicial approval, that the Act protects the right of employees to join together to improve their terms and conditions of employment through litigation.  Accordingly, by requiring employees to waive their right to engage in class or group litigation as a condition of employment, the Respondent has interfered with their Section 7 right and violated Section 8(a)(1) of the Act.

Two things spring to mind.  The first is that the NLRB’s rulings in previous cases such as D.R. Horton were in the context of class action waivers embedded in arbitration clauses, and judicial challenges to the Board’s findings were couched in terms of federal support for agreements to arbitrate (assuming, arguendo, that these are agreements rather than unilaterally promulgated policies of employment, and assuming further that the employer’s policy was intended to ensure arbitration rather than to prohibit class actions).  Without the decades-old pro-arbitration judicial policy to rely upon, the employer here  may be less protected from challenge.

The other issue is that, in the event the NLRB’s Decision and Order is upheld, it will necessarily be restricted to agreements of employment.  Other efforts to restrict individual protections afforded by Rule 23, such as consumer, financial, nursing home, and other “agreements,” would of course remain unaffected by the Fifth Circuit’s actions.

The CFPB is acting to eliminate class action waivers in arbitration clauses in consumer financial transactions, and recent word has it that the Obama administration is acting to make entire arbitration provisions unenforceable in nursing home contexts.  Maybe the game of inserting class action waivers, with or without arbitration clauses, has about run its course?

New York’s Global Pound Conference

Tue, 2016-09-13 10:14

A group of very prominent stakeholders on commercial dispute resolution met at Cardozo Law School on September 12, 2016, to conduct the New York City session of the Global Pound Conference.  Of all the many institutions and volunteers who were responsible for this success, the International Mediation Institute takes the foremost position in realizing the vision of its founder, Michael Leathes.

The New York participants included representatives of users of ADR (companies and individuals), advisers to those users (lawyers and law firms), providers of adjudicative or non-adjudicative services (ADR organizations and solo practitioners), and other “influencers” (including academics and other experts).  These people participated, not just attended, because they periodically responded to “core questions” (posed to participants in all 40 conferences in 32 countries) and other more local and specific questions.  These responses were made available to the participants in real time, and in the aggregate will yield robust data reflecting regional as well as global insight into where we are and where we might progress.

This conference addressed the resolution of business disputes.  Specifically excluded were family, consumer, criminal or other types of disputes.

Among the welcoming speakers, Laurence Shore of Herbert Smith Freehills cautioned humility and modesty both from advocates (who may obstruct resolution through behavior they defend as “zealous”), and neutral mediators and arbitrators (who do well to remember that they almost always understand less than they think they do — indeed, in my own experience, less than anyone else in the room — about the disputes).

The first two panels sought perceptions of the current status of ADR choices and use by end-user parties.  The first panel addressed the participants’ understanding of party needs and expectations in commercial dispute resolution – on whose advice ADR is chosen, with what expectations and with what business goals in mind.  Two outcomes of participant voting particularly caught my eye.  When asked whether concern for attorneys’ own fees had an influence on their advice that their clients engage in ADR processes, only 23% of users and 17% of attorneys – that is, those actually giving and getting the advice – responded that it was.  By contrast, 44% of mediators, 44% of academics, and 37% of arbitrators thought that attorneys’ advice was colored by a concern for their fees.  This seems to suggest that ADR participants other than counsel and their clients harbor skepticism of whether parties are being advised in a disinterested, professional manner.  It also seems peculiar that folks who neither gave nor received confidential legal advice had such a sure view as to what that advice reflected.

(Percentages reflect weighted choices of importance, with 1st choice getting three points, second two, and 3d one – so things don’t add up to 100%.)

Another interesting result of this “user behavior” panel dealt with the relative importance that preserving relationships had in user choice of ADR.  Parties and attorneys rated it the lowest of the six available selections, at 7-8%.  By contrast, mediators thought that users valued relationship preservation much higher, at 20%.  The conclusion might be that mediators think they are doing something that (a) they’re not doing; (b) the users themselves don’t seek; and (c) neither the users nor their legal advisers value.

The second panel addressed party expectations and current practice – what outcomes users value the most in the process and outcomes of ADR.  Here a surprising level of unanimity of perception was revealed in certain propositions.  Pretty much everyone understood that the responsibility for advising a party of the options and consequences of resolution processes lay with inside and outside counsel.  Similarly, pretty much everyone (including users, happily) understood that the main things that users get from mediation are control of the outcome and a reduction of cost.

More nuanced results arose when the group was asked how they understood outcomes were determined. Both parties (79%) and mediators (77%) said that outcomes reflected consensus, a voluntary shared decision.  By contrast, attorneys relegated that idea to a far lower raking (37%) and thought that outcomes reflected a concern for the rule of law (76%).  Parties acknowledged that legal concerns were important (63%) but mediators seemed not fully to appreciate the role that legal concerns take in framing commercial outcomes (49%).  And remember that we’re talking here about the mediators’ own customers.

Perhaps the most helpful perception I got from the whole conference was a better understanding of the ways in which what mediators think they’re doing, contrasted to what users experience them doing and expect them to do.

The third panel looked forward, asking which stakeholders were most likely to obstruct, or to bring about, change in commercial dispute resolution.  Two outcomes of the voting were particularly noteworthy.  First, external lawyers for the parties were uniformly identified as the main source of obstruction.  This was contrary to my experience; I have regularly found counsel for parties in mediation to be highly competent and supportive.  They also, of course, are the ones who employ me, exemplifying profoundly astute powers of observation.  <G>  I’m loathe to join this condemnation, which in any event I have not personally observed.

Various stakeholders were identified as likely to prompt positive change in methods of resolving party disputes — except for the parties themselves!  The parties were the only group who placed themselves in the primary position; everyone else had widely divergent views, none of them prominently naming the parties.  That is to say, the people who had the disputes were the only ones who thought that they were best positioned to improve ways to resolve them.  That outcome seemed either humorous or patronizing.  Or both?

The organizers of this fabulously successful program are to be congratulated, particularly the global project manager Jeremy Lack.  I have never understood why the conference series was subtitled “Access to Justice,” inasmuch as ADR is an attempt to circumvent — not to access — formal, public systems of justice.  Nor have I have thought of ADR as particularly accessible in any event.  Mediation and arbitration are for parties with the money to buy them, whereas the courts are supported by the taxpayer and access is (relatively) free.  And, in practice, very little of the discourse at the actual conference related to this topic.

But quibbles be damned.  Many, many more conferences are scheduled around America and around the world over the next several months.  See the schedule here and hie you to an entirely unique, captivating day of discussion and insight.

ADR Legislative Update

Tue, 2016-09-13 09:38

Larson Frisby of the American Bar Association recently prepared an informative memo updating the pending federal legislation and regulations that pertain to mediation and arbitration.  The memo was presented at the ABA Dispute Resolution Section Council meeting in August and is well worth serious study.  It is posted on the Section’s web site, here.

Boiling Down Consumer Arbitration

Mon, 2016-09-05 11:19

By now I’ve attended or participated in quite a few task forces, speeches, conference panels and other occasions in which the issue of class action waivers in consumer arbitration clauses has been discussed.  Just about each time, just about each speaker has been either smarter or better informed than I am — often both.  Two more events are on the horizon:  at the ABA Business Law Section Annual Meeting and at a CLE at New York Law School, where I teach.  And perhaps it is an indication of my learning — or my not learning enough — that the kernel of the concern reduces itself to a few very simple propositions:

Arbitration Derives its Authority From Informed Consent.  Just like Thomas Jefferson said about governments, arbitrators’ power is created and confined by the agreement of the parties.  Folks who didn’t agree that an arbitrator should decide a particular dispute are not required to arbitrate that dispute.  Almost without exception, “consumer arbitration” involves parties who didn’t agree to arbitrate, and didn’t even understand what agreeing to arbitrate means.

Class Actions Are Experienced as a Form of Threat, Not Redress.  The AT&T dispute mechanism clause is a good example of a perfectly suited consumer redress mechanism.  So are EBay and Paypal.  Use the internet to advise the company that you believe you’re owed money, and the company pays 100% of the money owed, and assumes 100% of the transaction costs, or else risks harsh consequences for failing to do so.  The fact that a lawyer in San Diego thought his client was not sufficiently covered by this policy, and initiated a class action instead, confirms what businesses fear: That class actions are being used for purposes other than consumer redress, by a self-interested bar.

Arbitration Clauses Are Distorted as Vehicles for Class Action Waivers.  It would be unlikely that an agreement purporting to require purchasers of an iPhone to waive Rule 23 of the FRCP would be enforceable.  Yet an identical provision of an arbitration agreement has been held to be enforceable.  Therefore arbitration appears in many consumer “agreements,” not with the prospect that claims for redress will be arbitrated, but rather that claims asserted by class action lawyers will be dismissed.

The confluence of these three trends puts us where we are now, which is to say no one’s interest is being met.    Rational consumer redress mechanisms are discouraged; businesses’ efforts to manage litigation risk are being regulated to the point of prohibition; and the process of arbitration — a mercantile method of centuries’ lineage and continuing utility — is being mangled and distorted.

How to fix it?  As Viola says in Twelfth Night, “It is too hard a knot for me t’untie!”

 

ABA Business Law Meeting Features CFPB Panels

Thu, 2016-09-01 09:44

The upcoming Annual Meeting of the ABA Business Law Section in Boston (Sept. 8-10) features two opportunities to understand the various perspectives on recently promulgated proposed rules of the Consumer Financial Protection Bureau.  The rules, if they become effective, would (among other things) render unenforceable provisions of consumer agreements that purport to waive a right to assert claims as part of a class.  The discourse that the Bureau’s promulgation has prompted implicates concerns in public policy, arbitration, consumer redress and class actions.

One panel will be held at 10:30 a.m. Friday September 9, and I have the privilege of moderating the discussion.  Doug Eyre, Associate General Counsel of Flagstar Bank, will address the risk that CFPB’s proposals might pose to substantive review of arbitration awards.  Eric Mogilnicki of Covington & Burling will outline some challenges that the proposed rule might face and issues arising with respect to class actions asserted or pending prior to the effectiveness of the rule.  Mike Flynn of Goodwin Procter will voice concerns about the consequences of the possible abuse of the class action process.

We are particularly honored that the Chair of the ABA Dispute Resolution Section, Nancy Welsh, will travel to the Business Law Section to convey that Section’s concerns about the impact that class action waiver and other current practices have on the integrity of the arbitration processes.  Finally, Amy Schmitz of the University of Missouri will offer a preview of her upcoming book — co-authored by Colin Rule — suggesting that as consumer transaction activities increasingly rely on online communications, so will consumer satisfaction efforts, including consumer dispute resolution.  This panel is sponsored by the Dispute Resolution Committee and co-sponsored by the Consumer Financial Services Committee and the Business and Commercial Litigation Committee.

The second panel will be offered on Thursday September 8 at 3:30 p.m.  Sponsored by the Consumer Financial Services Committee, the panel is chaired by renowned attorney Alan S. Kaplinksy and is titled “Arbitration: The CFPB’s Proposed Rule and Beyond.”

New Book on Business ADR

Sat, 2016-08-13 13:51

The ABA Business Law Section has about 50 substantive committees, many of which include subcommittees addressing dispute resolution in their field.  In the past several months, many members of these various entities undertook a collaborative effort to “cut across the solos.” The result is a unique  new volume titled ADR Deskbook for the Business Lawyer: A Cross-Disciplinary Workbook.

An introduction by immediate past ABA President Paulette Brown sets the tone by encouraging the increased use of “forms of mediation and arbitration that return us to the essential, direct and straightforward way of helping clients do business efficiently.”  Chapters include studies of dispute resolution methods in employment (Hugh Christie and Joe Semo), Bankruptcy and Restructuring (Timothy Bow, Howard Brownstein, Jerry Markowitz and Scott Stuart), Mergers and Acquisitions (John Levitske and Steve Knee), Family Business Divorce (Steve Knee), IP (Kristine Dorrain, Sandra Partridge and Ryan Isenberg), Public Infrastructure Projects (Deborah Mastin), Futures and Derivatives (William Nissen and Louis Burke); Sports (Richard Pound); and proceedings under the innovative Delaware Rapid Arbitration Act. (Blake Rohrbacher).

Authoritative legal associations such as the American Bar Association often attract gifted minds that too seldom confer with each other.  I was honored to be trusted by these terrific authors to edit and contribute to this book, and hope that future editions include chapters from more and more fields of business law.

“Procedural” Apology

Tue, 2016-07-05 19:58

Richard Nixon was responsible for many teaching moments.  One of my favorites is the advance in American appreciation of the difference between the passive voice (“Mistakes were made”) and the active voice (“I made mistakes”) that was offered by his press secretary, and echoed by other presidents.

A recent paper by an accomplished New York Law School student presents a similarly tantalizing distinction — the difference between saying “I’m sorry for what I did” and “I’m sorry for the trouble caused.”

Ayana Osada studied the long dispute between Suzuki and Volkswagen, and analyzed part of the problem through the lens of differing cultures and ensuing miscommunication.  Suzuki, as a leading figure in distinctly Japanese industry, was offending by VW’s failure to respond to Suzuki’s request for a “procedural apology.”  What that term means, and the ramifications of not knowing what it means, are parts of a fascinating tale.

Here is a section of Ms. Osada’s paper addressing the provocative topic.  In extracting this section, the footnote numbering has been disrupted and internal references within certain of the footnotes are no longer accurate.

(This excerpt appears with Ms. Osada’s permission.  She is spending the summer at the New York and Tokyo offices of Paul, Weiss, Rifkind, Wharton & Garrison.)

* * * *

Culture of Respect and Apology

Culture is an all-encompassing word; it is easy to blame cultural differences for a host of ADR related problems. However, in the context of ADR with Japanese parties, focus should be on respect and apology because together, they are the essence of dispute resolution in Japan. They explain why separating substance and procedure is helpful and why procedural apology can cure miscommunication and misunderstanding, which are common in cross-border ADR.

For example, when Suzuki demanded an apology from VW and none was forthcoming, it negatively affected their already failing relationship because Suzuki valued this incident far more than VW did. It was missed opportunity because they could have used procedural apology to repair or contain the damage. “We apologize for addressing you without due respect. It was a misunderstanding and miscommunication due to language differences. We are sincerely sorry.” This statement would have sufficed.

From Japanese party’s point of view, demanding an apology is an olive branch extended to the other party. Unfortunately, VW did not recognize it as such. Or perhaps, VW intentionally ignored Suzuki’s demand after doing analysis and calculation. From Japanese perspective, Suzuki was likely not asking VW to admit substantive guilt or liability; Suzuki was attempting to restore their working relationship procedurally.

As Professor Lee describes, this situation is an “example of how law or lawlessness is culturally constructed, and whether the question is not one of law, however defined, but of the local legal culture.”[1] In Japan, which is over 2,000 years old and is a civil law system unlike the United States, parties place as much emphasis on what is respectful and respectable procedurally as they do on what is legal and reasonable substantively.[2] How can parties engaging with Japanese parties in ADR separate substance and procedure to achieve success?

I am Sorry for the Trouble Caused

In Japanese, “gomeiwaku wo kakete moushiwake arimasen” is a well-used phrase between business partners, friends, families, and in virtually all other relationships. Directly translated, it means: I am sorry for the trouble caused.

The phrase is intentionally vague and lacks basic information such as who, what, whom, and why. This phrase may be issued in a press release by a corporation or a politician. It can be used in ADR regarding family disputes, real estate disputes, neighbor disputes, multi-million dollar commercial disputes, and any other disputes.

“Gomeiwaku” means trouble, problem, headache, additional work, wasted work, offense, disrespect, and anything else, which the injured party may resent. The phrase addresses the injured party’s need for apology because that is how the injured party feels. It is purposely vague because details do not matter as much as the fact that apology is given regardless of who did what to whom for what reason. Employees may say this phrase to apologize and bow deeply before television cameras on behalf of their company for producing a defective product. A politician may say this phrase to apologize to his constituents before resigning over a sex scandal. Legal consequences aside, it is perceived as show of respect.

The “trouble caused” can be a specific incident, injury to someone, or general mistrust of a company. Whatever it is, procedural apology expresses contrition and desire to take responsibility without admitting substantive guilt or liability. Here, substance and procedure have been separated with procedural apology. It has not solved the substantive issue such as recalling defective products and paying damages. However, it has begun to restore respect and trust between parties, which are necessary in any successful relationship.

Demanding Apology and Refusing to Apologize

To restore respect and trust between Suzuki and VW, how could procedural apology have benefited VW? Similarly, how could understanding why VW may not apologize have benefited Suzuki?

During their arbitration, both international and Japanese media reported that Osamu Suzuki, the 80-plus year old Chairman of Suzuki, was offended by VW because of the way Suzuki was treated; he felt that VW viewed Suzuki as inferior to VW.[3] In May 2011, when Mr. Suzuki accused VW of disrespecting Suzuki by calling it VW’s “associate” rather than partner in VW’s annual report, VW could have apologized to save Mr. Suzuki’s face but it did not.[4] On another occasion, VW representatives told Suzuki representatives: “If you become a development center, the VW Group will rely on Suzuki, and our fate will be shared[…] Although it is not that we don’t trust you, we don’t know what will happen in the future. The future may bring concerns that you will be controlled by another company.”[5] While VW may have made the statement with no intention of offending Suzuki, Suzuki was reportedly offended because it implied that Suzuki was incompetent, unreliable, and unpredictable.[6]

When there is miscommunication or misunderstanding, what can be done to remedy the problem? If Mr. Suzuki was offended, it may have been in VW’s long term interest to apologize: “Please forgive us, Mr. Suzuki, if we have offended you or your team. Communicating in English, which is our second or third language, can be challenging. If we misspoke, we are deeply sorry.”

Generally, can such procedural, conciliatory, and vague apology resolve substantive issues? Probably not. However, at least for Japanese parties, such apology would go a long way towards building a relationship. It is an indication that past and future miscommunication or misunderstanding may be unintentional because good faith effort was made to show respect.

On the other hand, European and American parties may believe that such procedural apology is not only confusing but also distracting and even insincere. If apology is procedural, substantive issues and “the real problems” are not being addressed. Apology for the sake of formality may confuse the situation and complicate the matter. This may be the thinking of an American corporation, who hesitates to issue an apology after apology is demanded by a Japanese corporation. Because apology means different things in different cultures, it may be undervalued to the detriment of both parties, who miss an opportunity to nip a problem in the bud.

Power of Apology

To varying degrees, apology is valued universally and has been accepted as effective tool in ADR in multiple countries. By 1986, “apology legislation,” which legalizes use of apology as legal remedy, had been introduced in 56 jurisdictions including the United States, United Kingdom, Australia, and Canada to settle a variety of conflicts, including business disputes, family disputes, sexual assault charges on college campuses, and international war crime tribunals.[7] However, fear that apology can be construed as admission of guilt or liability remains in the United States.[8]

It is this strategic thinking, based on which one abstains from apologizing, which offends Japanese parties even more because it indicates that strategy rather than respect is controlling. It is especially disrespectful, the offended Japanese party may conclude, that apology is not forthcoming. The American strategy of rational thinking and self-preservation can be described as “kakehiki” in Japanese. Although kakehiki is just as valuable and inevitable in business in Japan as it is in the United States, it is not necessarily honorable in Japanese psyche. Kakehiki endorses hedging bets and calculating what is most advantageous at the expense of more honorable values such as respect. In contrast, formal apology shows respect, honor, and courage.

Therefore, when problems arise in ADR and apology is demanded, withholding it can be devastating. Parties can end up with more problems than when they started the ADR. This is where procedural apology can be effective because it can cure potentially serious relationship problems quickly without addressing substantive issues so the parties can return to solving the substantive issues.

Crowded Society and Apology

Japan and the United States can be at the opposite ends of the spectrum regarding use of apology. Scholars including Professor Lee have studied “the U.S.­–Japan axis” and explain that Japanese cultural norms, which value respect, community, and harmony, cause them to apologize more readily, when “one’s actions have resulted in the significant injury of another[.]”[9] In contrast, the U.S. inclination is to refrain from apologizing or to deny responsibility in the very same situation.[10]

One relevant factor is geography; Japan is ten times more crowded than the United States. Most Japanese communities are highly populated, in which people must work and live together in harmony for survival. Japan’s population was 127.1 million in 2014 and its surface area was 377,962 square kilometers while the U.S. population was 318.9 million and its surface area was 9,831,510 square kilometers.[11] Comparing their “population density,” which is “people per square kilometer of land area,” the U.S. density was 34.9 while Japanese density was 348.7.[12] The United States is roughly 26 times the size of Japan but Japan’s population is nearly 40% of the U.S. population.[13] Japan is a country, in which the equivalent of almost 40% the U.S. population lives.[14] Yet Japan is “slightly smaller than California.”[15]

Living in a crowded country helps explain why Japanese people value harmony, respect, and keeping face, and why they appreciate apology as show of respect. Avoiding confrontation resolves disputes and conflicts efficiently in Japan because when everyone lives and works in close quarters, parties cannot escape from one another. Confrontation, escalation, and disorder, cannot be permitted in crowded communities because dissenters cannot simply move out west, where there is plenty of land and few people. In Japan, there is little unclaimed land and wilderness. In such crowded communities, independence, individuality, and respectful disagreement, which are valued in U.S. communities, are subordinated. In Japan, it is often easier, more efficient, and ultimately beneficial to everyone, to apologize. Strategizing and avoiding admission of guilt or liability would likely aggravate the matter. Therefore, lack of apology, when it is expected, is that much more devastating to Japanese parties.

Law and ADR that Reflect Host Culture

Law and ADR systems generally reflect each country’s “societal inclination or disinclination to apologize.”[16] In Japan, legal institutions have reinforced societal use of the apology and integrated it into the country’s justice system. To resolve conflicts quickly and to have finality, Japanese courts regularly demand apology from parties. Professor Lee explains: “The culture of Japan is such that all of society, including the bench and bar, expects and demands an apology from a party causing harm or injury to another.”[17]

In the United States, apology is not typically a part of civil or criminal court proceedings. Courts can ask parties to apologize. However, even in ADR, apology may not be mandatory because “the societal inclination not to apologize in the U.S. setting is matched (and perhaps shaped) by a legal culture that advises clients not to issue an apology for fear that it may be used against the apologizer as an admission of legal liability.”[18] Therefore, apology is not given high “legal priority” and “legal doctrine based on apology” is not as well developed in the United States.[19]

“You Should Know Better”: High Context v. Low Context

To convey that a person is better than his or her own misguided conduct, expression, “you should know better,” is used in the United States and in Japan. However, the Japanese version implies this notion: “You lack common sense that all of us in this community unquestionably share, which means that you are showing disrespect.” Assuming that everyone shares the same common sense is a mistake, which Japanese parties can make due to geographical and cultural conditioning.

The reason Suzuki was offended by VW may have been that Suzuki assumed that VW should know better. VW must know that it should not call Suzuki an associate because they are equal partners, Suzuki assumed. It may not occur to Suzuki that VW representatives simply misspoke or misused some words. Suzuki assumed that VW knew better and yet, VW called them an associate rather than partner. Therefore, Suzuki was offended. Similarly, Suzuki likely assumed that VW knew or should have known that VW must apologize; it is common sense. Yet VW refused to apologize. Therefore, Suzuki was further offended.

“Joshiki shirazu,” meaning “lacking common sense,” is an expression used to describe conduct that is frowned upon in Japan. In a small and crowded island country with long history of interdependent agricultural communities and limited immigrant population such as Japan, common sense enables collective survival.

In contrast, in a large country made up of immigrants with frontier spirit, where multiracial, multi-ethnic and multi-religion communities coexist, such as the United States, common sense and assumptions are not dependable. Instead, freedom, pluralism, and tolerance for those who disagree with us, are valued. Many Americans living in large cities such as New York City, especially, do not assume that our neighbors, coworkers, and business partners, share the same customs and common sense. People in diverse communities must keep an open mind to learn from each other; we learn by compromising and communicating. Therefore, people are not so easily offended if there is misunderstanding or miscommunication.

In Japan, however, people are conditioned to assume that everyone shares the collective common sense, rendering disregard for common sense particularly disrespectful. Refusing to apologize can be offensive to many Japanese parties, when it may be dismissed as harmless by many Americans, who are conditioned to expect that people from different cultures have different customs.

[1] Ilhyung Lee, Introducing Int’l Com. Arb. and Its Lawlessness, By Way of the Dissenting Opinion, 4(1) Contemp. Asia Arb. J. 19, 27 (May 31, 2011), http://ssrn.com/abstract=1867886.

[2] Introduction to Japan’s Legal System, Library of congress, http://www.loc.gov/law/help/legal-research-guide/japan.php (last visited May 22, 2016).

[3] Anna Mukai, Suzuki Starts Arb. with Volkswagen to Buy Back Shares, BLOOMBERGBUSINESS (NOV. 24, 2011), www.bloomberg.com/news/articles/2011-11-24/suzuki-starts-arbitration-with-volkswagen; Hans Greimel, How the VW-Suzuki Alliance Went Wrong, AUTOMOTIVE NEWS (Aug. 3, 2015), http://www.autonews.com/article/20150803/OEM/308039944/how-the-vw-suzuki-alliance-went-wrong.

[4] Mukai, supra note 11; Greimel, supra note 11.

[5] Mukai, supra note 11; Greimel, supra note 11.

[6] Mukai, supra note 11; Greimel, supra note 11.

[7] Robyn Carroll et. al., Apology Legis. and its Implications for Int’l Disp. Resol., 2015-9 UWA FACULTY OF LAW RESEARCH PAPER 115–117 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2677033.

[8] Id.

[9] The Law and Culture of the Apology, supra note 8 at 2.

[10] Id.

[11] World Dev. Indicators: Japan, The World Bank, http://databank.worldbank.org/data/reports.aspx?source=2&country=JPN&series=&period= (last visited May 22, 2016); World Dev. Indicators: United States, The World Bank, http://databank.worldbank.org/data/reports.aspx?source=2&country=USA&series=&period= (last visited May 22, 2016).

[12] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[13] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[14] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[15] The World Factbook, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/fields/2023.html (last visited May 2, 2016).

[16] The Law and Culture of the Apology, supra note 8 at 2.

[17] Id.

[18] Id.

[19] Id.

[20] The Law and Culture of the Apology, supra note 8 at 10.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

“Procedural” Apology

Tue, 2016-07-05 19:58

Richard Nixon was responsible for many teaching moments. One of my favorites is the advance in American appreciation of the difference between the passive voice (“Mistakes were made”) and the active voice (“I made mistakes”) that was offered by his press secretary, and echoed by other presidents.

A recent paper by an accomplished New York Law School student presents a similarly tantalizing distinction — the difference between saying “I’m sorry for what I did” and “I’m sorry for the trouble caused.”

Ayana Osada studied the long dispute between Suzuki and Volkswagen, and analyzed part of the problem through the lens of differing cultures and ensuing miscommunication. Suzuki, as a leading figure in distinctly Japanese industry, was offending by VW’s failure to respond to Suzuki’s request for a “procedural apology.” What that term means, and the ramifications of not knowing what it means, are parts of a fascinating tale.

Here is a section of Ms. Osada’s paper addressing the provocative topic. In extracting this section, the footnote numbering has been disrupted and internal references within certain of the footnotes are no longer accurate.

(This excerpt appears with Ms. Osada’s permission. She is spending the summer at the New York and Tokyo offices of Paul, Weiss, Rifkind, Wharton & Garrison.)

* * * *

Culture of Respect and Apology

Culture is an all-encompassing word; it is easy to blame cultural differences for a host of ADR related problems. However, in the context of ADR with Japanese parties, focus should be on respect and apology because together, they are the essence of dispute resolution in Japan. They explain why separating substance and procedure is helpful and why procedural apology can cure miscommunication and misunderstanding, which are common in cross-border ADR.

For example, when Suzuki demanded an apology from VW and none was forthcoming, it negatively affected their already failing relationship because Suzuki valued this incident far more than VW did. It was missed opportunity because they could have used procedural apology to repair or contain the damage. “We apologize for addressing you without due respect. It was a misunderstanding and miscommunication due to language differences. We are sincerely sorry.” This statement would have sufficed.

From Japanese party’s point of view, demanding an apology is an olive branch extended to the other party. Unfortunately, VW did not recognize it as such. Or perhaps, VW intentionally ignored Suzuki’s demand after doing analysis and calculation. From Japanese perspective, Suzuki was likely not asking VW to admit substantive guilt or liability; Suzuki was attempting to restore their working relationship procedurally.

As Professor Lee describes, this situation is an “example of how law or lawlessness is culturally constructed, and whether the question is not one of law, however defined, but of the local legal culture.”[1] In Japan, which is over 2,000 years old and is a civil law system unlike the United States, parties place as much emphasis on what is respectful and respectable procedurally as they do on what is legal and reasonable substantively.[2] How can parties engaging with Japanese parties in ADR separate substance and procedure to achieve success?

I am Sorry for the Trouble Caused

In Japanese, “gomeiwaku wo kakete moushiwake arimasen” is a well-used phrase between business partners, friends, families, and in virtually all other relationships. Directly translated, it means: I am sorry for the trouble caused.

The phrase is intentionally vague and lacks basic information such as who, what, whom, and why. This phrase may be issued in a press release by a corporation or a politician. It can be used in ADR regarding family disputes, real estate disputes, neighbor disputes, multi-million dollar commercial disputes, and any other disputes.

“Gomeiwaku” means trouble, problem, headache, additional work, wasted work, offense, disrespect, and anything else, which the injured party may resent. The phrase addresses the injured party’s need for apology because that is how the injured party feels. It is purposely vague because details do not matter as much as the fact that apology is given regardless of who did what to whom for what reason. Employees may say this phrase to apologize and bow deeply before television cameras on behalf of their company for producing a defective product. A politician may say this phrase to apologize to his constituents before resigning over a sex scandal. Legal consequences aside, it is perceived as show of respect.

The “trouble caused” can be a specific incident, injury to someone, or general mistrust of a company. Whatever it is, procedural apology expresses contrition and desire to take responsibility without admitting substantive guilt or liability. Here, substance and procedure have been separated with procedural apology. It has not solved the substantive issue such as recalling defective products and paying damages. However, it has begun to restore respect and trust between parties, which are necessary in any successful relationship.

Demanding Apology and Refusing to Apologize

To restore respect and trust between Suzuki and VW, how could procedural apology have benefited VW? Similarly, how could understanding why VW may not apologize have benefited Suzuki?

During their arbitration, both international and Japanese media reported that Osamu Suzuki, the 80-plus year old Chairman of Suzuki, was offended by VW because of the way Suzuki was treated; he felt that VW viewed Suzuki as inferior to VW.[3] In May 2011, when Mr. Suzuki accused VW of disrespecting Suzuki by calling it VW’s “associate” rather than partner in VW’s annual report, VW could have apologized to save Mr. Suzuki’s face but it did not.[4] On another occasion, VW representatives told Suzuki representatives: “If you become a development center, the VW Group will rely on Suzuki, and our fate will be shared[…] Although it is not that we don’t trust you, we don’t know what will happen in the future. The future may bring concerns that you will be controlled by another company.”[5] While VW may have made the statement with no intention of offending Suzuki, Suzuki was reportedly offended because it implied that Suzuki was incompetent, unreliable, and unpredictable.[6]

When there is miscommunication or misunderstanding, what can be done to remedy the problem? If Mr. Suzuki was offended, it may have been in VW’s long term interest to apologize: “Please forgive us, Mr. Suzuki, if we have offended you or your team. Communicating in English, which is our second or third language, can be challenging. If we misspoke, we are deeply sorry.”

Generally, can such procedural, conciliatory, and vague apology resolve substantive issues? Probably not. However, at least for Japanese parties, such apology would go a long way towards building a relationship. It is an indication that past and future miscommunication or misunderstanding may be unintentional because good faith effort was made to show respect.

On the other hand, European and American parties may believe that such procedural apology is not only confusing but also distracting and even insincere. If apology is procedural, substantive issues and “the real problems” are not being addressed. Apology for the sake of formality may confuse the situation and complicate the matter. This may be the thinking of an American corporation, who hesitates to issue an apology after apology is demanded by a Japanese corporation. Because apology means different things in different cultures, it may be undervalued to the detriment of both parties, who miss an opportunity to nip a problem in the bud.

Power of Apology

To varying degrees, apology is valued universally and has been accepted as effective tool in ADR in multiple countries. By 1986, “apology legislation,” which legalizes use of apology as legal remedy, had been introduced in 56 jurisdictions including the United States, United Kingdom, Australia, and Canada to settle a variety of conflicts, including business disputes, family disputes, sexual assault charges on college campuses, and international war crime tribunals.[7] However, fear that apology can be construed as admission of guilt or liability remains in the United States.[8]

It is this strategic thinking, based on which one abstains from apologizing, which offends Japanese parties even more because it indicates that strategy rather than respect is controlling. It is especially disrespectful, the offended Japanese party may conclude, that apology is not forthcoming. The American strategy of rational thinking and self-preservation can be described as “kakehiki” in Japanese. Although kakehiki is just as valuable and inevitable in business in Japan as it is in the United States, it is not necessarily honorable in Japanese psyche. Kakehiki endorses hedging bets and calculating what is most advantageous at the expense of more honorable values such as respect. In contrast, formal apology shows respect, honor, and courage.

Therefore, when problems arise in ADR and apology is demanded, withholding it can be devastating. Parties can end up with more problems than when they started the ADR. This is where procedural apology can be effective because it can cure potentially serious relationship problems quickly without addressing substantive issues so the parties can return to solving the substantive issues.

Crowded Society and Apology

Japan and the United States can be at the opposite ends of the spectrum regarding use of apology. Scholars including Professor Lee have studied “the U.S.­–Japan axis” and explain that Japanese cultural norms, which value respect, community, and harmony, cause them to apologize more readily, when “one’s actions have resulted in the significant injury of another[.]”[9] In contrast, the U.S. inclination is to refrain from apologizing or to deny responsibility in the very same situation.[10]

One relevant factor is geography; Japan is ten times more crowded than the United States. Most Japanese communities are highly populated, in which people must work and live together in harmony for survival. Japan’s population was 127.1 million in 2014 and its surface area was 377,962 square kilometers while the U.S. population was 318.9 million and its surface area was 9,831,510 square kilometers.[11] Comparing their “population density,” which is “people per square kilometer of land area,” the U.S. density was 34.9 while Japanese density was 348.7.[12] The United States is roughly 26 times the size of Japan but Japan’s population is nearly 40% of the U.S. population.[13] Japan is a country, in which the equivalent of almost 40% the U.S. population lives.[14] Yet Japan is “slightly smaller than California.”[15]

Living in a crowded country helps explain why Japanese people value harmony, respect, and keeping face, and why they appreciate apology as show of respect. Avoiding confrontation resolves disputes and conflicts efficiently in Japan because when everyone lives and works in close quarters, parties cannot escape from one another. Confrontation, escalation, and disorder, cannot be permitted in crowded communities because dissenters cannot simply move out west, where there is plenty of land and few people. In Japan, there is little unclaimed land and wilderness. In such crowded communities, independence, individuality, and respectful disagreement, which are valued in U.S. communities, are subordinated. In Japan, it is often easier, more efficient, and ultimately beneficial to everyone, to apologize. Strategizing and avoiding admission of guilt or liability would likely aggravate the matter. Therefore, lack of apology, when it is expected, is that much more devastating to Japanese parties.

Law and ADR that Reflect Host Culture

Law and ADR systems generally reflect each country’s “societal inclination or disinclination to apologize.”[16] In Japan, legal institutions have reinforced societal use of the apology and integrated it into the country’s justice system. To resolve conflicts quickly and to have finality, Japanese courts regularly demand apology from parties. Professor Lee explains: “The culture of Japan is such that all of society, including the bench and bar, expects and demands an apology from a party causing harm or injury to another.”[17]

In the United States, apology is not typically a part of civil or criminal court proceedings. Courts can ask parties to apologize. However, even in ADR, apology may not be mandatory because “the societal inclination not to apologize in the U.S. setting is matched (and perhaps shaped) by a legal culture that advises clients not to issue an apology for fear that it may be used against the apologizer as an admission of legal liability.”[18] Therefore, apology is not given high “legal priority” and “legal doctrine based on apology” is not as well developed in the United States.[19]

“You Should Know Better”: High Context v. Low Context

To convey that a person is better than his or her own misguided conduct, expression, “you should know better,” is used in the United States and in Japan. However, the Japanese version implies this notion: “You lack common sense that all of us in this community unquestionably share, which means that you are showing disrespect.” Assuming that everyone shares the same common sense is a mistake, which Japanese parties can make due to geographical and cultural conditioning.

The reason Suzuki was offended by VW may have been that Suzuki assumed that VW should know better. VW must know that it should not call Suzuki an associate because they are equal partners, Suzuki assumed. It may not occur to Suzuki that VW representatives simply misspoke or misused some words. Suzuki assumed that VW knew better and yet, VW called them an associate rather than partner. Therefore, Suzuki was offended. Similarly, Suzuki likely assumed that VW knew or should have known that VW must apologize; it is common sense. Yet VW refused to apologize. Therefore, Suzuki was further offended.

“Joshiki shirazu,” meaning “lacking common sense,” is an expression used to describe conduct that is frowned upon in Japan. In a small and crowded island country with long history of interdependent agricultural communities and limited immigrant population such as Japan, common sense enables collective survival.

In contrast, in a large country made up of immigrants with frontier spirit, where multiracial, multi-ethnic and multi-religion communities coexist, such as the United States, common sense and assumptions are not dependable. Instead, freedom, pluralism, and tolerance for those who disagree with us, are valued. Many Americans living in large cities such as New York City, especially, do not assume that our neighbors, coworkers, and business partners, share the same customs and common sense. People in diverse communities must keep an open mind to learn from each other; we learn by compromising and communicating. Therefore, people are not so easily offended if there is misunderstanding or miscommunication.

In Japan, however, people are conditioned to assume that everyone shares the collective common sense, rendering disregard for common sense particularly disrespectful. Refusing to apologize can be offensive to many Japanese parties, when it may be dismissed as harmless by many Americans, who are conditioned to expect that people from different cultures have different customs.

[1] Ilhyung Lee, Introducing Int’l Com. Arb. and Its Lawlessness, By Way of the Dissenting Opinion, 4(1) Contemp. Asia Arb. J. 19, 27 (May 31, 2011), http://ssrn.com/abstract=1867886.

[2] Introduction to Japan’s Legal System, Library of congress, http://www.loc.gov/law/help/legal-research-guide/japan.php (last visited May 22, 2016).

[3] Anna Mukai, Suzuki Starts Arb. with Volkswagen to Buy Back Shares, BLOOMBERGBUSINESS (NOV. 24, 2011), www.bloomberg.com/news/articles/2011-11-24/suzuki-starts-arbitration-with-volkswagen; Hans Greimel, How the VW-Suzuki Alliance Went Wrong, AUTOMOTIVE NEWS (Aug. 3, 2015), http://www.autonews.com/article/20150803/OEM/308039944/how-the-vw-suzuki-alliance-went-wrong.

[4] Mukai, supra note 11; Greimel, supra note 11.

[5] Mukai, supra note 11; Greimel, supra note 11.

[6] Mukai, supra note 11; Greimel, supra note 11.

[7] Robyn Carroll et. al., Apology Legis. and its Implications for Int’l Disp. Resol., 2015-9 UWA FACULTY OF LAW RESEARCH PAPER 115–117 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2677033.

[8] Id.

[9] The Law and Culture of the Apology, supra note 8 at 2.

[10] Id.

[11] World Dev. Indicators: Japan, The World Bank, http://databank.worldbank.org/data/reports.aspx?source=2&country=JPN&series=&period= (last visited May 22, 2016); World Dev. Indicators: United States, The World Bank, http://databank.worldbank.org/data/reports.aspx?source=2&country=USA&series=&period= (last visited May 22, 2016).

[12] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[13] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[14] World Dev. Indicators: Japan, supra note 19; World Dev. Indicators: United State., supra note 19.

[15] The World Factbook, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/fields/2023.html (last visited May 2, 2016).

[16] The Law and Culture of the Apology, supra note 8 at 2.

[17] Id.

[18] Id.

[19] Id.

[20] The Law and Culture of the Apology, supra note 8 at 10.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

The New York City Convening of the Global Pound Conference: September 12, 2016

Tue, 2016-07-05 13:23

The Global Pound Conference is a series of convenings of ADR practitioners, end-users, teachers and students around the world. Its goal is to assess the current state of Alternative Dispute Resolution and to point the direction for its continued advancement.

GPC events have taken place at, or or planned for, London, Singapore, Lagos, Mexico City, and many other places around the world. New York City’s conference will be held at Cardozo Law School on Monday September 12, 20-16.

More information on the Global Pound Conference may be found here. Information on the New York event is found here.

It’s difficult to imagine a more exciting, broader, and more comprehensive event in our field. All in New York City should of course be there on September 12, and others are encouraged to find a gather in near you and take part in this extraordinary happening.

The New York City Convening of the Global Pound Conference: September 12, 2016

Tue, 2016-07-05 13:23

The Global Pound Conference is a series of convenings of ADR practitioners, end-users, teachers and students around the world.  Its goal is to assess the current state of Alternative Dispute Resolution and to point the direction for its continued advancement.

GPC events have taken place at, or or planned for, London, Singapore, Lagos, Mexico City, and many other places around the world.  New York City’s conference will be held at Cardozo Law School on Monday September 12, 20-16.

More information on the Global Pound Conference may be found here.  Information on the New York event is found here.

It’s difficult to imagine a more exciting, broader, and more comprehensive event in our field.  All in New York City should of course be there on September 12, and others are encouraged to find a gather in near you and take part in this extraordinary happening.

CPR’s Third Volume on Employment ADR

Tue, 2016-07-05 12:05

Last year the International Institute of Conflict Prevention and Resolution (“CPR”) published a new volume, Cutting Edge Advances in Resolving Workplace Disputes. It is a fine book, an deserves to be a steady reference to practitioners and systems designers in the field.

The book is a joint publication of CPR and Cornell’s Scheinman Institute, and reflects the leadership of Jay W. Waks, Chair of the CPR Employment Disputes Committee, and Nancy L. Vanderlip, former senior counsel to several corporations and Chair of the Subcommittee charged with the project. It is a compendium of essays contributed by members of the Committee, each a contribution to the thought-leadership at which CPR is unparalleled.

David Lipsky of Cornell writes an overview of how corporations use ADR in employment, presenting useful findings from corporate surveys conducted in 1997, 2011, and 2013. He concludes that a growing number of companies rely on ADR as their principle approach to employment disputes, embracing a wide array of ADR techniques. In a subsequent chapter Lipsky focuses on the evolution of Integrated Conflict Management Systems and notes intrinsic organizational obstacles to their adoption, independent of their benefit.

Judy Cohen offers a chapter on approaches to stakeholder engagement in developing and nurturing such systems, including examples of companies’ roll-out materials and online resource centers. In that theme, Michael J. Wolf offers an approach to the use of online tools in service of workplace dispute identification and resolution. These range from web conferencing to sophisticated online dispute resolution platforms.

Employee hotlines are the subject of Stephanie Morse-Shamosh‘s chapter, which itemizes the many considerations in determining a hot;line’s function, attributes and trustworthiness. Mary Rowe and Randy Williams write on the practice — still too infrequent, in the view of many observers — of the organizational ombudsman.

Finally, Cynthia S. Mazur introduces a practice to which I have not previously given enough thought — the skills of a “conflict coach” in service of the goal of preventing, rather than resolving, conflicts that too often — and in her view unnecessarily — absorb institutional resources through formal mediation or arbitration.

While I served as Executive Vice President and Interim President of CPR, the Institute published two books in this area: What Jay Waks in his introduction calls the Fat Book and the Skinny Book. This newest publication is perhaps the Goldilocks Book — just right!

 

 

CPR’s Third Volume on Employment ADR

Tue, 2016-07-05 12:05

Last year the International Institute of Conflict Prevention and Resolution (“CPR”) published a new volume, Cutting Edge Advances in Resolving Workplace Disputes.  It is a fine book, an deserves to be a steady reference to practitioners and systems designers in the field.

The book is a joint publication of CPR and Cornell’s Scheinman Institute, and reflects the leadership of Jay W. Waks, Chair of the CPR Employment Disputes Committee, and Nancy L. Vanderlip, former senior counsel to several corporations and Chair of the Subcommittee charged with the project.  It is a compendium of essays contributed by members of the Committee, each a contribution to the thought-leadership at which CPR is unparalleled.

David Lipsky of Cornell writes an overview of how corporations use ADR in employment, presenting useful findings from corporate surveys conducted in 1997, 2011, and 2013.  He concludes that a growing number of companies rely on ADR as their principle approach to employment disputes, embracing a wide array of ADR techniques.  In a subsequent chapter Lipsky focuses on the evolution of Integrated Conflict Management Systems and notes intrinsic organizational obstacles to their adoption, independent of their benefit.

Judy Cohen offers a chapter on approaches to stakeholder engagement in developing and nurturing such systems, including examples of companies’ roll-out materials and online resource centers.  In that theme, Michael J. Wolf offers an approach to the use of online tools in service of workplace dispute identification and resolution.  These range from web conferencing to sophisticated online dispute resolution platforms.

Employee hotlines are the subject of Stephanie Morse-Shamosh‘s chapter, which itemizes the many considerations in determining a hot;line’s function, attributes and trustworthiness.  Mary Rowe and Randy Williams write on the practice — still too infrequent, in the view of many observers — of the organizational ombudsman.

Finally, Cynthia S. Mazur introduces a practice to which I have not previously given enough thought — the skills of a “conflict coach” in service of the goal of preventing, rather than resolving, conflicts that too often — and in her view unnecessarily — absorb institutional resources through formal mediation or arbitration.

While I served as Executive Vice President and Interim President of CPR, the Institute published two books in this area:  What Jay Waks in his introduction calls the Fat Book and the Skinny Book.  This newest publication is perhaps the Goldilocks Book — just right!

 

 

David Hoffman Inspires Us Again

Sat, 2016-06-25 14:24

David Hoffman‘s capacity to lead by inspiration is unparalleled.  When you attend a program or lecture by David, you feel as if he’s talking to you over a table, sharing stuff that matters to him in the hope that it will matter to you, too.

David recently gave a TEDx Talk in Northern Illinois University, and happily it is posted at YouTube.  It’s titled Lawyers as Peacemakers.  Really?!? Yes, Really!  His talk, couched as a summary professional memoir, is actually a testimony to the core impulse of dispute resolution — the desire to help parties to resolve the conflicts that burden them.

David is the only one of my heroes who regularly cries when he tells stories.  He cries in this TED Talk, too.  I attribute this proclivity not to David’s tendency to be emotionally labile, but to reflect his practice of entering the very beating human pulse of conflict.  He moves easily from a war story of a family conflict to the teachings of two Buddhist priests.  This is because David’s approach to his work is as transparent and committed as his approach to his life.  He seeks to live in a way that reduces the conflict that surrounds us — whether or not he is in a formal mediation.  The way he thinks, is the way he lives, is the way he works, is the way he talks, is the way he thinks.

It is no surprise, then, that David cites Gandhi in his talk, urging us to “be the change you want to see in the world.”  In the talk he “announces” that, as of that day, he will forthwith be a lawyer who is a “full-time peacemaker,” and “just say no” to litigation as part of his practice.  He sees the role of a lawyer as assisting parties to heal their rifts.

David Hoffman as peacemaker.  Really, David?!? Yes, Really!

Early Call for DR Section Proposals

Sat, 2016-06-25 13:51

The ABA Section of Dispute Resolution has announced that proposals for programming for the 2017 Spring Meeting (scheduled for San Francisco April 20-23 2017) are due by Wednesday, August 3, 2016.

This annual event is one of the wonderful ADR-related events of the year, and San Francisco of course among the most delightful cities in the world.  Gina Brown of the ABA notes: “A PDF of the proposal form is available on the Conference RFP web site, http://www.americanbar.org/groups/dispute_resolution/events_cle/annual/conf_rfp.html for preparation and planning purposes. All proposals must be submitted through the online proposal form.”

Screw on your thinking caps, colleagues.  I can’t wait to ttend your programs in San Francisco.

 

David Hoffman Inspires Us Again

Sat, 2016-06-25 02:24

David Hoffman‘s capacity to lead by inspiration is unparalleled.  When you attend a program or lecture by David, you feel as if he’s talking to you over a table, sharing stuff that matters to him in the hope that it will matter to you, too.

David recently gave a TEDx Talk in Northern Illinois University, and happily it is posted at YouTube.  It’s titled Lawyers as Peacemakers.  Really?!? Yes, Really!  His talk, couched as a summary professional memoir, is actually a testimony to the core impulse of dispute resolution — the desire to help parties to resolve the conflicts that burden them.

David is the only one of my heroes who regularly cries when he tells stories.  He cries in this TED Talk, too.  I attribute this proclivity not to David’s tendency to be emotionally labile, but to reflect his practice of entering the very beating human pulse of conflict.  He moves easily from a war story of a family conflict to the teachings of two Buddhist priests.  This is because David’s approach to his work is as transparent and committed as his approach to his life.  He seeks to live in a way that reduces the conflict that surrounds us — whether or not he is in a formal mediation.  The way he thinks, is the way he lives, is the way he works, is the way he talks, is the way he thinks.

It is no surprise, then, that David cites Gandhi in his talk, urging us to “be the change you want to see in the world.”  In the talk he “announces” that, as of that day, he will forthwith be a lawyer who is a “full-time peacemaker,” and “just say no” to litigation as part of his practice.  He sees the role of a lawyer as assisting parties to heal their rifts.

David Hoffman as peacemaker.  Really, David?!? Yes, Really!

Early Call for DR Section Proposals

Sat, 2016-06-25 01:51

The ABA Section of Dispute Resolution has announced that proposals for programming for the 2017 Spring Meeting (scheduled for San Francisco April 20-23 2017) are due by Wednesday, August 3, 2016.

This annual event is one of the wonderful ADR-related events of the year, and San Francisco of course among the most delightful cities in the world.  Gina Brown of the ABA notes: “A PDF of the proposal form is available on the Conference RFP web site, http://www.americanbar.org/groups/dispute_resolution/events_cle/annual/conf_rfp.html for preparation and planning purposes. All proposals must be submitted through the online proposal form.”

Screw on your thinking caps, colleagues.  I can’t wait to ttend your programs in San Francisco.