Business Conflict Blog

Interesting China Conference

Tue, 2017-07-18 13:06

Colleagues at both the CCPIT Mediation Centers and the newly-minted Mainland-Hong Kong Joint Mediation Center have extended invitations to what promises to be a fascinating conference on 18-19 September in the beautiful city of Hangzhou.

The invitation is a broad one and I encourage those interested to contact the link provided below.

Mainland – Hong Kong Joint Mediation Center (MHJMC) will jointly organise the International Mediation Summit with China Council for the Promotion of International Trade (CCPIT), Hangzhou Municipal Government, CCPIT Mediation Center Hangzhou and the Asian Mediation Association. It will be held in Hangzhou Marriott Hotel, Qianjiang, No.399 Juyuan Road, Jianggan District, Hangzhou City, Zhejiang, China on 18 and 19 September 2017.

The Summit aims at promoting the use of commercial mediation internationally, enhancing global exchanges and cooperation in the field of mediation, endorsing China’s “Belt and Road” Initiative and Chinese reforms in alternative dispute resolution mechanism. Registration for the Summit is free of charge.

The Supreme People’s Court of PRC, China Law Society, All China Lawyers’ Association and the Department of Justice of Hong Kong SAR will be invited to be supporting organizations.

The discussion topics of the Summit will include but not limited to the following:

  • The Current Development of Online Dispute Resolution Mechanism
  • Dispute Settlement Methods Under the ‘Belt and Road’ Initiative and the Comparative Advantage of Commercial Mediation
  • The Current Development of and Future Outlook on the Internet and Dispute Resolution
  • Case Sharing on Cross-Border Commercial Mediation
  • Mediation and National Reforms on Alternative Dispute Resolution Mechanism

You are cordially invited to attend the summit. Hangzhou is an internationalized city with fabulous scenery.  It is expected that more than 350 delegates will be attending the summit, who are mediators from both China and abroad, judges, jurisprudential experts, lawyers and company representatives.

For interested parties, please submit the completed registration form as attached.  For more details or registration, please kindly contact Ms Irene Lam at 852 3620 3076 or email to [email protected]

Thanks for your kind attention.

Best Regards,

The Secretariat of Mainland-Hong Kong Joint Mediation Center

Tel: 852 2866 1800

Fax: 852 2866 1299

Website: http://mhjmc.org

 

More Leadership, Just in Time

Wed, 2017-07-12 18:19

From the New York Times, Wednesday July 12, 2017, quoting a spokesperson for the American Secretary of State who made the following distinction with respect to the Secretary’s efforts concerning Qatar:

Mr. Hammond said that Mr. Tillerson was maintaining his distance and not trying to act as a mediator.  “No, a mediator says this is what the final resolution is going to be, we’ll decide it for you, that’s a mediation,” Mr. Hammond said….

ABA DR Section Solicits Proposals for 2018 Spring Meeting

Thu, 2017-07-06 13:11

The ADR event of every year is the Spring Meeting of the ABA Dispute Resolution Section Spring Meeting.  The Section has announced that proposals for programming for the April 4-7, 2018 Meeting are now being solicited.  More surprisingly, the deadline for proposals is only a few weeks away — Friday, August 4!

Information on how to submit a proposal is available here.  Every conceivable track, topic, approach and format seem to be encouraged.  Do put on your thinking caps and, next April thrill us!!

“How Mediation Works”

Sat, 2017-06-24 13:21

A collection of Blaise Pascal’s letters, published in 1657, included a letter that contained the apology, ”Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”  That is to say, “I wrote a longer letter than usual because I did not have time to make it shorter.”  The recently published book, tersely titled How Mediation Works, must have taken the authors quite a bit of time.

The bulk of the non-bulky (111-page) volume is written by three seminal leaders of the ADR movement:  Stephen B. Goldberg, Jeanne M. Brett and Beatrice Blohorn-Brenneur.  A chapter on “Mediation and the Law” is contributed by Professor Nancy Rogers of Ohio State.  The result could be compared to those condensed “…for Dummies” series, except that the precision of thought, clarity of writing and general excellence prompts me to subtitle it “Mediation for Smarties.

Reading the book is like brushing away cobwebs and seeing a room clearly.  The authors start off by distinguishing between “conflicts” – the collision of differing viewpoints – and “disputes” – a subset of conflicts in which one party makes a claim upon another, who rejects it.  Then they divide the process of resolving disputes into three broad categories:  processes relying on power and coercion (like boycotting a segregated restaurant), processes relying on rights (like appealing to an authoritative decision-maker to apply applicable principles and declare which party should prevail), and processes relying on interests (like engaging to reconcile priorities and effect trade-offs, resulting in an imperfect but acceptable outcome).  Then they define mediation as “negotiation with the assistance of a neutral third party.”  That gets us to page 7.

In keeping with their rigorous discipline of thought, the authors walk us through the role of a mediator in convening the parties, explaining the process, developing potential resolutions, and concluding the process.  In a 17-page chapter worth the price of the entire book they opine on common party-related obstacles during mediation, such as the urge for rights-based vindication, prevarication, or exploitation.  And they are admirably frank in the final chapter, titled “So You’d Like to Be a Mediator?”  This is, I’m pretty sure, the only mediation book I’ve read that includes in the index the entry “Day job, don’t quit, 104.”

The book is steadfastly mainstream.  The authors accept without challenge that a mediator should be “neutral,” for example – a proposition that a great number of sophisticated parties, including Asian disputants and many Western companies, would contest in a number of contexts.  It’s a little weak on recent scholarship and resources; the list of recommended mediation demonstration DVDs, for example, is pretty dated, and the suggested reading on impasse-breaking consists of only two items, the most recent six years old.  At the same time, aspects are quite contemporary; readers are provided a compilation of ADR blogs that includes this one – evidence of the authors’ profound discernment, if ever I saw it.  And the book is available in digital as well as hardcopy format.

Buy several copies of the book.  Share it, and give copies as presents to clients, counsel and your mediator buddies.  It really is that brief and it really is that good.

New York City Reception for New Book “Transforming Justice”

Tue, 2017-06-20 10:30

Prof. Marjorie Silver of Touro Law Center writes to say:

We are pleased to announce the publication of Professor Marjorie Silver’s new book:
Transforming Justice, Lawyers, and the Practice of Law
(Marjorie A. Silver, ed., Carolina Academic Press).

Transforming Justice, Lawyers and the Practice of Law is a collection of writings by participants in the Project for Integrating Spirituality, Law and Politics (PISLAP) and others actively engaged in transforming law, legal education and social justice into something that is collaborative rather than adversarial, that seeks to heal brokenness rather than merely resolve disputes, and that moves us toward The Beloved Community envisioned by the Reverend Martin Luther King, Jr. more than fifty years ago. The collection showcases the abundant ways in which lawyers, judges, law professors and others are employing more communitarian, peaceful and healing ways to resolve conflicts and achieve justice. It is written for those who share similar goals and are eager to learn new ways to practice law and create a legal system that fosters empathy, compassion and constructive change.
See http://www.cap-press.com/books/isbn/9781611635980/Transforming-Justice-Lawyers-and-the-Practice-of-Law for more information about the book.

If you are in the New York City area, please join Marjorie and several contributing authors at the Brooklyn Commons on June 26th.  See: https://www.eventbrite.com/e/transforming-justice-lawyers-and-the-practice-of-law-book-launch-tickets-35092493593<https://www.eventbrite.com/e/transforming-justice-lawyers-and-the-practice-of-law-book-launch-tickets-35092493593https:/www.eventbrite.com/e/transforming-justice-lawyers-and-the-practice-of-law-book-launch-tickets-35092493593>.

Michael Leathes’ New Negotiation Book

Fri, 2017-06-09 09:05

Michael Leathes has written a book on negotiation that is aimed at corporate counsel.  In so doing he has given us a clear insight into the challenges of decision making within corporations, and the skills needed for those of us who counsel them.  By virtue of his experience and his commitment to both deal-making and dispute settlement, he has also earned our deep respect and a place on my very thin shelf reserved for books that speak definitively to the core of our work in immediately practical terms.  I will refer to it frequently when I need guidance, skills refreshment, or inspiration.

It’s not just that Leathes’ volume, Negotiation: Things Corporate Counsel Need to Know but Were Not Taught, is worth the read and constitutes another excellent book on negotiation.  It is well-informed, articulate, authoritative, wears its scholarship easily – and it’s just plain useful.

The core virtue of this study lies in the reservoir of real-life experience from which the author draws.  The book notes that “Michael Leathes spent his entire career as a corporate counsel with Gillette, Pfizer, International Distillers & Vinters and BAT based variously in Brussels, New York and London.”  The reader is therefore the beneficiary not only of war stories about real business negotiation, but also the challenges of working with a team; the difficulties in having a corporate (rather than a single individual) client as ultimate decision maker; and the special considerations that arise from negotiating on behalf of an international entity, with counter-parties from every culture imaginable.  It is a heady mix, and as I say the book is entirely distinctive within the robust negotiation literature.

Leathes writes eloquently about the tension between legal training and common sense.  For example, he convinced his client to modify its former practice of opposing every trademark application made by a competitor, and instead focusing only on applications that had business consequences, and then communicating with the competitor with respect to their concerns prior to formally opposing.  As a result, he reports, “[t]he number of oppositions filed by each company against the other almost halved overnight, along with the costs involved.  More interestingly, the dialogue it opened up led to various negotiations for deals over trademark rights that significantly benefited both companies.”

Leathes’ career is the forge in which his lessons on negotiation were learned, and his experiences provide the basis for his conclusions, the proof of their pertinence, and the enjoyment of the narrative by which the book’s content is told.  He tells about the joint expert who, the day before the report is due to the arbitrator, makes it known that an additional payment of $30,000 would assure its safe delivery with conclusions favorable to the client.  He explains both “leverage” and “anchoring” in the context of initially unsuccessful negotiations with post-revolutionary Iran that eventually succeeded upon the initiation of proceedings before the Claims Tribunal in The Hague – because “we had the more credible BATNA.”

Leathes also relates a story that illustrates what one of my students calls “procedural apology.”  An American CEO opened a negotiation by directly saying to his counter-party’s president, “We apologize if you are under the impression that we have misappropriated your technology.  That was never our intent.”  Distrust deflated, and candor and respect restored, a mutually beneficial license agreement eventually resulted.

Over the years, Leathes has been a vocal proponent of “deal facilitation” – the use of a neutral third party to assist transactional lawyers in identifying and claiming value that, by virtue of the prudent caution that accompanies every deal process, might not be uncovered without facilitative intervention.  This section of the book puts Leathes’ argument down on paper in definitive form; one can only wish that, some day, the combination of hubris, inexperience and lack of curiosity that has been the obstacle to this practice might be overcome.

Everyone has their own “boiled-down” list of essential negotiating skills, but Leathes’ list is as good as any I’ve read:

To be most effective, negotiators need to cover a lot of territory:
  • Be perceived appropriately by the other party;
  • Understand as much as possible about those you deal with;
  • Have the best possible information you can get;
  • Know your real leverage and focus on the other party’s;
  • Think carefully about where the other side is coming from;
  • Distinguish between what they want and what they need;
  • Separate fact from fiction, and fairness from unreasonableness;
  • Know when to talk and when to walk;
  • Bring your own side along with you;
  • Know where best to turn for support;
  • Be skilled in listening, questioning and deep exploration;
  • Focus and do not let yourself be distracted; and
  • Generally be psyched up for the task.

There are several aspects of the book with which I take issue.  “Negotiation is the art of persuasion,” Leathes writes – a premise that I have not witnessed with any frequency whatsoever.  Very few are the mediations that I have handled where a party is persuaded to change its fundamental negotiating analysis.  Indeed, I think that I have never seen a party say, “Oh, wow, I see now that I was wrong about this and you are quite right – I adopt your view.”  Parties may learn that their aims are unobtainable without modification, or they may come to assess what’s on the table as more valuable than what they initially sought, but that’s calculus, not persuasion.

Leathes also includes two chapters – one on neuroscience and one on culture – that I find intriguing but useless in practice.  I have never found the application of neuroscience to my work as a mediator; I experience that knowledge to be similar to remembering, during a performance of Tristan und Isolde, that A’ = 440 vps.  It may be true but it yields nothing I can use to help the specific parties in the specific room to deal with each other better.  As for culture, I have both studied and lived with cultural analytical frameworks – often at Michael Leathes’ urging – and have found the views of Jeanne Brett and Geert Hofstede limiting rather than releasing.  To concede that no individual is to be received as a personification of an entire culture seems to me to be inadequate caveat to the thrust of cultural impact on negotiators — which is the general assumption that people of a particular culture may be expected to exhibit certain traits, and that one should be aware of those traits when dealing with individuals from that culture.  I rebel against this postulate both as a matter of personal experience and of moral principle.  Besides, the biggest obstacle I have faced in China, Switzerland, Nigeria, Singapore or Moscow has not been the culturally-based behaviors of those I meet, but rather my own.  I’m a friendly, energetic, large, white, male American, and it’s been through recognizing, anticipating and managing the consequences of other people’s preconceptions of those attributes that I have nurtured the cross-cultural relationships I so cherish.

Leathes also insists that negotiation is not taught in law school, or at least not nearly enough.  He has reasons for this conclusion, but I nevertheless doubt it is sound.  One need only to refer to the database maintained by the University of Oregon to appreciate that, at least in the United States, negotiation skills training is very widely offered in legal education.  It is true that not every young lawyer takes the course, and that one does not need to be trained in negotiation in order either to receive a law degree or pass the bar entrance examination.  I add that it is even truer that negotiation skills more urgently belong in business schools rather than law schools.  But formal negotiation training is by no means ignored by institutions charged with training young lawyers.  Indeed, I’ll challenge Leathes by asking whether Gillette, Pfizer or BAT gives preference to young lawyers who have been trained in negotiation when making hiring decisions — and if not, why not?

The most compelling lessons in the book are not technical, but reflections of Leathes’ own ineffable approach to his work and his relationships with his fellow man.  “Most successful negotiations require a bedrock of patience, respect, decency, politeness and courtesy,” he writes. “[S]mall acts of unexpected thoughtfulness can work wonders, provided your motives are not misinterpreted.  [S]imple gestures like arranging for a chauffeur to collect the party from the airport for transfer to their hotel sends a welcome signal.”  This perception of the key to successful negotiation — treating other people like human beings who are inherently worthy of respect — Leathes is quite right, is not taught.  Nor is it teachable, I suggest.  Yet it can certainly be learned.  There are some people who seem to have been put on the earth to bring out the most creative qualities of others.  Michael Leathes is one of them, and by this book we’re all the better for it.

For further information on the book and its author, go to www.MichaelLeathes.com.

Last Chance for 2-Day International ADR “Boot Camp”

Wed, 2017-05-31 11:47

This post is prompted by mixed motives of alerting practitioners to a great CLE opportunity, and what NPR’s Car Talk used to call its “Shameless Commerce Dept.”

A few slots remain in a two-day International ADR “Boot Camp” being offered by the AAA’s International Centre for Dispute Resolution and New York Law School June 14-16.  It’s a unique opportunity to meet global leadership, brush up on cross-border contract enforcement, earn 17.5 CLE credits, and enjoy a dinner cruise on the Thames.  I hope you will take advantage of it and/or encourage others.

ICDR and New York Law School Present…

A Two-Day Course in London:

International Dispute Resolution:

The London Boot Camp

How to Stay Ahead of Your Clients’ Globalized Business

REGISTER HERE

Participants will learn:

  • How to draft enforceable cross-border contracts;
  • The fundamentals of international commercial mediation and arbitration;
  • How to enforce international arbitral awards in other jurisdictions

…while earning 17.5 CLE credits (including 1.0 Ethics credits).

DATES:          Wednesday June 14 – Friday June 16, 2017

LOCATION:  Institute of Advanced Legal Studies, Russell Square, London, England

TIME:             5:30 – 7:15 p.m. Wednesday, welcoming cocktail reception to follow

9:00 a.m. – 5:30 p.m. Thursday

9:00 a.m. – 6:00 p.m. Friday, Gala Dinner Cruise to follow

CLE:                17.5 credits (16.5 credits in Professional Practice; 1 credit in Ethics)

COST:             $950.00

MEET THESE ACCOMPLISHED PRACTITIONERS:

  • Kenneth D. Beale, Boies Schiller Flexner
  • John Maurice Bishop, Pinset Masons LLP
  • Andrew Burr, Past President, Chartered Institute of Arbitrators – European Branch
  • Ekaterina Finkel, Baker & McKenzie
  • Philip Howell-Richardson, Independent Mediators (UK)
  • John Lowe, Past President, Association of Corporate Counsel – Europe
  • Paul Moss, Past Head of Claims, QBE European Operations
  • Christopher Newmark, Spenser Underhill Newmark
  • Peter Phillips, Director, ADR Skills Program, New York Law School
  • Edward Poulton, Baker & McKenzie
  • Andy Rogers, CEDR

PREMIER GALA DINNER CRUISE (included at no additional cost):

7:45 pm Friday 16 June.  Luxurious Four-Course Dining on the Harmony – Departing from Embankment Pier for a 2-3/4 hour Cruise — See London from the Thames!

TOPICS ADDRESSED INCLUDE:

  • Law and Practice of International Commercial Dispute Resolution
  • Mediation Practices and Regulations in the UK, Europe and Asia
  • International Arbitration Practice Under ICDR, LCIA, ICC and CIETAC Rules
  • Cross-Border Dispute Management from the Corporate Client’s Perspective
  • Ethics for Negotiators
  • Enforcing Arbitration Awards Under the New York Convention
  • Insurance ADR: A Global Perspective
  • Introduction to the Chartered Institute of Arbitrators
  • Highlights from the Global Pound Conference

REGISTER HERE

Verdict in JAMS Lawsuit

Thu, 2017-05-25 09:37

A few months ago we posted disconcerting news of a dissatisfied party to a California arbitration who, rather than seeking to vacate the award pursuant to state or federal arbitration statutes, sued the arbitrator and the service provider, alleging that the arbitrator’s qualifications had been misrepresented on the provider’s website.

The matter went to trial and the jury found that, while it could not reach a conclusion as to the accuracy of the arbitrator’s representations, the claimant had failed to show any damage resulting from reliance on those representations, and the trial judge dismissed the claims.

A complete account of the result may be found here.   The case has caused some in the profession to reassess (with caution) how they market and promote their services as neutrals.  If such possible liability provokes a “cleaner” market, then perhaps some good may come of this.  But it would be at a very great cost.

From time immemorial, private commercial decision-making has been a boon to merchants who did not want lengthy and legal proceedings over essentially mercantile matters.  This goal is reflected in American arbitration statutes, narrowly circumscribing the bases on which an arbitration award can be subject to judicial scrutiny.  The mere fact that this claim was allowed to go to trial bodes poorly for the integrity of the arbitration process.  If the arbitrator’s behavior amounted to misconduct, vacatur under the statutes was available.  It did not, but the arbitrator was subjected to expensive public scrutiny regardless, along with the organization through which her services were engaged.  This is not good.

Consumer Redress and “The New Handshake”

Sun, 2017-04-23 00:48

For many years, a tempest has surrounded public policy approaches to consumer protection, largely implicating three utterly inapt legal constructs:  FRCP 23, the Federal Arbitration Act, and traditional principles of contract formation.  Accustomed to managing customer complaints but unwilling to expose themselves to the coercion of class actions, companies have sought to require consumers to waive rights to collective remedies.  Courts have recognized the validity of contracts containing such waivers if they are embedded in agreements to arbitrate.  And consumer agreements to arbitrate have been enforced despite widespread acknowledgement that consumers have no idea that they are agreeing to anything, what they are agreeing to, or what rights they are waiving.

So intractable has been the legal discourse that Congress, through Dodd-Frank, created an agency to promulgate rules protecting consumers of financial products from “forced arbitration and class action waivers.”  And so vulnerable is our regulatory environment that once Congressional power shifted that promulgating agency (the Consumer Financial Protection Bureau) and its proposed rules are presumed to be dead before ever having come to life.

The whole thing has been a testament to the futility of the law to address a felt need in a way that conforms to our legitimate expectations.

Comes now Prof. Amy J. Schmitz of the University of Missouri and Colin Rule of Modria with an extra-legal, market-driven, empirically-based approach whose values reflect old-time America and yet whose execution relies upon cutting-edge technology.

Prof. Schmitz remembers when she would buy ears of corn from a local farm stand, hand the farmer a buck, and shake his hand.  The dollar signified the market value of the corn.  The handshake signified the farmer’s willingness, in the event that an ear was wormy, to replace it with a good one.

Harry Truman expressed his frustration with economic advisors who equivocated “On the one hand… but on the other hand…” by declaring that what this country needs is a one-armed economist.  Schmitz and Rule suggest that what this country needs is a New Handshake.  Their book of that name makes a compelling argument.

In a calm and informed voice, the authors explain the legitimate expectations of online retailers and their online customers.  Both seek, and almost always realize, accuracy, satisfaction, efficiency and responsiveness.  Retailers devise easy methods of product identification, ordering, payment and order fulfillment.  Moreover, they compete with others in the marketplace to provide those experiences better than their customers’ alternative suppliers.  Consumers want ease of use, quick delivery, conforming goods, and both privacy and safety with respect to the details of their financial transactions.

The question is, if 98-99% of those transactions go as contemplated, what do consumers expect with respect to the 1-2% that do not?  And what are the market justifications for retailers’ trying to meet those customer expectations?

Rule and Schmltz argue that the online nature of the transaction presents the opportunity for an online resolution of the disputes arising from this economy, and that management of disputes through the internet, arising from internet-based consumer transactions, presents opportunities for both customer satisfaction and enhanced business.  Setting aside the concerns of third party advocates, regulators and lawyers, the authors propose that what customers really want is a dispute process that is as easy to access as the sale was; is online, like the sale was; is fair, quick, private, confidential, effective and direct.  They do not want coupons, negotiations, arguments, excuses, or offers of discounts for future purchases, and they certainly do not want to have to pick up a telephone and have a recording tell them how important their call is.

Here comes the most compelling part of the study: based on a study of the buying behavior of millions of consumers on the retail site eBay, the authors conclude that consumers who are offered, and who initiate, online dispute processes concerning their purchases actually engage in more purchases – irrespective of the outcome of the dispute process they initiated.  That is to say, the mere availability of a direct, simple online access to remedy boost customer loyalty with respect to that online merchant.  The authors even call this phenomenon “Return on Resolution,” or RoR.

This can backfire if done badly, of course.  If the online consumer redress protocol is perceived as unfair, or complaints get lost, or other adverse experiences lead customers to feel hoodwinked, things will change rapidly for the worse.  But the empirically-based proposition is that the presence on a retail website of an online consumer dispute mechanism results in enhanced customer loyalty. It acts like a farmer’s handshake.

If you accept the validity of this behavior – and we’re talking about consumer behavior, not self-described consumer “satisfaction” – then a whole new world of online dispute resolution (ODR) presents itself, driven and enforced by the market rather than by legal theories or regulatory initiatives.  The authors envision a global, uniform, multi-lingual, cross-cultural system of online consumer redress that possesses certain design criteria:

  • The process is easy to access and to understand
  • The system is highly automated
  • User of the process are treated fairly and their privacy is respected
  • The system identifies “bad guys” – fraudulent sellers and repeated claimants – and uses a “tripwire” system to exclude them from participation or notify appropriate authorities
  • The process is sufficiently sophisticated to detect other efforts at “gaming”
  • The process must yield benefit to the merchants who take part
  • The system must self-improve through iterative lessons-learned

They go on to spell out in some detail how such a global network, www.newhandshake.org, might be built on a single platform.  And they offer hypothetical case studies of how it would work in instances of buyer nonpayment, seller failure of delivery, dissatisfaction with quality of service, or other common B2C disputes.

This is timely, innovative, creative stuff.  And it is a refreshing reminder that the law follows, and seldom incites, human endeavors.  New developments in trade relationships come from the felt needs of the market, and when the market undergoes fundamental reshaping – such as the multi-jurisdictional, multi-legal, cross-cultural, click-able world of contemporary online retailing – we lawyers are fortunate to have people like Amy Schmitz and Colin Rule to point us to the leaders, and encourage us to follow.

Stories Mediators Tell – World Edition

Fri, 2017-04-21 18:05

Many of the presentations at the ABA Dispute Resolution Section Meeting introduced new books in the field.  A notable example was Prof. Lela Love and her co-editor Glen Parker explaining the ongoing effort to open up mediation to people around the world who have may not have experienced it by compiling of “Stories Mediators Tell” — now supplemented by “The World Edition.

The volume is purposely anecdotal.  The idea is to “popularize” mediation by telling stories.  Prof. Love explained that stories educate and inspire, educate and entertain people.  We are more eager to hear stories than to be taught.  The volume perfectly vindicates her proposition.

The hour-long panel consisted, suitably, of a group of internationally-based mediators who told their stories.

  • Thierry Garby of France told the story of a Parisian theatre that, 100 years after its construction, was remodeled and provoked neighborhood complaints because of noise. Five expert reports, 13 parties and 12 years of litigation yielded no acceptable outcome.  The remedy would cost $8,000,000 but, Garby discovered, the building was worth $250,000.  It settled in two hours.  Once he discovered this anomaly,
  • Maria Camelino of Argentina said that she uses media to resolve conflict. In her country, in 2002, there was dramatic political upheaval and economic crisis.  She initiated a conflict resolution on Argentine TV, offering advice from social workers and others on a particular case. Lawyers could bring cases to the panel and viewers could learn from them.  Subsequent mediation parties would be invited to watch clips from the show, changing their perspectives.
  • Jarwad Sarwana of Pakistan related an instance of a trademark mediation that was interrupted with the afternoon prayer towards Mecca, including the invocation by an imam to pray for peace. The mediation was about to re-commence after afternoon prayers but first one party asked to speak.  He reported having been moved by prayer, and proposed that he and his chief adversary discuss directly an incident that had occurred in Frankfurt years before.  Clarity was thereby achieved by means seemingly unrelated to, but likely possible only through, mediation.
  • Judge Srdan Simac of Croatia told a Christmas story. As chief of the mediation service in his court, he received a request from a party on December 23 to conduct a mediation the next day, so it would be done before Christmas.  He agreed and conducted a Christmas Eve mediation that proved successful.  The grateful parties arranged for the delivery of two boxes of cakes for the court.  The Judge explained that he was obligated to refuse it and asked if it could be re-delivered to the local orphanage.  All agreed.  Later in the afternoon he found one of the attorneys at the end of a corridor, crying.  It transpired that the lawyer had spent World War II in that very orphanage as a child, and was moved by the unexpected turn of fate by which he himself had been an agent of the very kindness he had so yearned for.

Prof. Love noted that there is a tendency for mediators to tell inspiring and successful experiences, not dull, boring, tedious or unsuccessful ones.  That’s okay with me.  Inspiration is in short enough supply in our business that no one is well advised to turn it down when it’s offered.

 

Lawyers as Peacemakers and Changemakers

Thu, 2017-04-20 14:34

Lincoln famously wrote: “As a peacemaker the lawyer has a superior opportunity of being a good man.”  Without challenging this proposition, I have often wondered to what extent lawyers are uniquely positioned to achieve “goodness,” or to do “good” for others.  Don’t teachers also have a “superior opportunity” to do good?  Landscapers?  Artists?  Butchers?

Kim Wright, Eileen Barker and Ann Marie Puente conducted a panel at the 2017 ABA Dispute Resolution Section Meeting investigating “expanding what is possible for lawyers.” The panel sought to show “how we can lead as peacemakers and changemakers in the current social and political environment.”

Kim Wright’s most recent book is “Lawyers as Changemakers.”  She described the “Integrative Law Movement” as part of rapid change in a broad swath of professional society, including shifting corporate governance paradigms and re-emergence of holistic medical practice.  She cited factors such as public disrespect for lawyers, lawyers’ disrespect for each other, and lawyers’ frequently reported personal distress and dissatisfaction, as incentives for professionals to self-reflect and critically assess.  One outcome, she proposes, is a re-adoption of ancient and fundamental values of individual purpose and worth – unfashionable though those terms may be to some.  She cited a trust and estate lawyer who stated that his firm’s mission was “helping clients to express their love for those most important to them.”  She seeks to “reunite law and love,” in recognition that all of law deals, in one way or the other, with relationships.  And the incorporation of these fundamental values into the individual legal practice may render one’s self a “changemaker” – in principle movingly illustrated by a remarkable 4-minute film on the consequence of the re-introduction of wolves to the Yellowstone National Park.

Eileen Barker described the process whereby she left litigation and opened a mediation practice as an intentional choice to conform her professional life with her personal desire to foster relationships and wrestle with the challenges of forgiveness.  She wanted to use her legal training to “help people to heal, and be at peace.”  She found, moreover, that helping people resolve a particular conflict was frequently only the tip of the iceberg, merely the first step of transforming and liberating people away from other-directed blame and towards self-directed nurturing and growth.  She noted Ken Cloke’s observation that, “in every conflict, forgiveness, like revenge, is always possible.” She insists that there is a fundamental human impulse to forgive, an impulse towards empathy, that can either be encouraged or dissuaded by facilitation.  She made it seem obvious: “Most people want peace.”  Pressed on the fact that most people also want moral vindication, she noted that forgiveness can also include acknowledgement of harm, accountability, restitution and other elements of moral suasion.

Ann Marie Puente urged a design analysis to problems that lawyer often address.  Regulation is a sign of design failure, she suggested – pollution is a flaw of systems design, as is injustice.  Thus, design is admittedly intentional, value-laden and outcome-oriented. Were lawyers to follow a design of numerous informal face-to-face interactions, she argues, outcomes would be more attractive to those effected by them.  She termed it a “culture of informality,” allowing porous and humane interactions that would yield progressive and enjoyable outcomes.  This principle is particularly urgent in times that are violent, uncertain and insecure, as she suggests we find ourselves now.  Humanity, not technology, will drive change.

To some degree, the concepts conveyed in this program are applicable to landscapers, butchers, and anyone who serves clients.  Our job is to fix our client’s problems – the dripping faucet, the tasty portion of beef, the elegant outcome of a conflict.  All of us who serve others express our caring for them, and are required therefore to bring our integrity and values – one of which is to refrain from saying “This is what you want” in favor of asking “What do you want?”  Those who are uncomfortable doing so when practicing law may find themselves rightly confused.

At the same time, if the desire to be at peace and the desire to morally vanquish are both intuitive, one can still ask whether the lawyer the professional agent best qualified to respond to both needs.

Interfaith Efforts at Peacemaking

Tue, 2017-04-18 19:22

There is so much to do, see, hear and learn at the ABA Dispute Resolution Spring Meeting that I frequently find myself at a loss how best to spend my time.  If you find yourself in such a quandary, I urge you to consider, at 1:45 p.m. Friday, in Room Pacifica 1, a gentle and inspirational hour with three women of faith who have responded to a mission of mutual understanding and peace.

The panel, titled “Interfaith Efforts at Peacemaking,” features leaders of Christian and Muslim congregations in the San Francisco area who have devoted themselves to service in the conviction that people of faith have something unique to offer, through simple interfaith dialogue and intercultural cooperation.  Speakers include Faith Ferde Ates of Pacifica Institute, Linda Crawford of Interfaith Center at the Presidio, and Rev. Susan Strouse of First United Lutheran Church.

Persecuted Coptic Christians; banned Muslim travelers, Jews subjected to newly awakened antisemitism — We are all too familiar with religion being used as a tool for division.  I encourage you to consider meeting and speaking with three inspired women who are committed to its use as an agent of healing and peace.

Third Party Funding in Arbitration — Ethics and Best Practices

Tue, 2017-04-18 19:01

In March 2017, New York Law School and the American Arbitration Association convened a discussion of “Hot Topics in Arbitration,” one of which involved third party funding.  The event was taped and the provocative discussion can be viewed here.

The issue is also addressed in a terrific article appearing in the Spring 2017 issue of the New York Dispute Resolution Lawyer.  Professor Elayne E. Greenberg of St. John’s Law School evokes circumstances “When the Empty ADR Chair is Occupied by a Litigation Funder,” and her succinct observations make dandy reading.

After reviewing the landscape of the legal and ethical status of what used to be called “champerty and maintenance,” Prof. Greenberg settles into a frame of discussion that I find very comfortable — analogizing to the insurer’s duty to defend, she refers to the settled ethical principles arising from a lawyer’s representation of a client when legal fees are paid by a third party with an interest in the progress of the defense.  These principles boil down to two cautions — (1) A  lawyer must take care not to impinge on the exercise of independent legal judgment on the client’s behalf, and (2) a lawyer must be aware of the risk of the loss of privilege to the extent that communications take place with the non-client funder.

Applying these ethical principles to arbitration and mediation, Prof. Greenberg concludes that “lawyers participating in dispute resolution should be ethically required to disclose the identity of litigation funders at the time that the lawyers and their clients consent to participate in dispute resolution.”  More to the point, she postulates that “arbitrators and mediators must know the identity of litigation funders… if these neutrals are to conduct these dispute resolution procedures in accordance with their ethical mandates and maintain the integrity of the arbitration and mediation procedures.”

I confess this clear-cut statement is new to me, but makes perfect sense in the face of an increasing trend of non-parties with financial interests in the arbitration.

 Prof. Greenberg gives five justifications for this bright-line rule, only two of which (it seems to me) relate to arbitration: (1) Disclosure is needed to ascertain conflicts between the neutral and the funder; and (2) disclosure is needed to ensure that all participants’ procedural justice expectations are satisfied.

The other three points seem to relate more specifically to mediation: (1) Disclosure is needed to enable the neutral to understand the interests that need to be addressed’ (2) disclosure is needed to “uncover all the invisible pulls that may be dictating settlement terms”; and (3) disclosure is needed to ensure that all interested parties agree to abide by confidentiality obligations.

Greenberg notes that disclosure does not address all of the ethical and procedural challenges that third-party funding addresses.  But she has identified a salient part of any discussion of the issue, and her article is a contribution for that alone.

(The issue, edited by Edna Sussman, Sherman Kahn and Laura A. Kaster, is simply splendid, and is alone worth a year’s worth of dues to the New York State Bar Association,