The 16th meeting of the World Mediation Forum of the UIA was held in Lisbon, Portugal, on January 27-28, 2012.  It was very well attended, as the attached attendance sheet attests.  Co-President Colin Wall noted that attendees came from 31 countries.

A panel on mandatory mediation brought out some interesting recent developments, including a game-changer in Italy. 

Alan Limbury of Woolloomooloo, Australia, reviewed the growth of mediation in that country, including the creation of LEADR as an effort to ensure that lawyers will be included in the growth of the practice.  In reviewing court responses to agreements to mediate, he distinguished between mandatory participation in the process and coerced outcomes in mediation.  Thus, as a matter of law, parties can be compelled by a court to mediate, but not to come to an agreement at the mediation.  He reported broad success in court-mandated mediation. 

Jeff Abrams of Houston, Texas, noted that mandatory mediation without assurances of inadmissibility and confidentiality may pose substantial risks, as may be the case in Italy.  However, he strongly encouraged mandatory mediation with appropriate protections, and reported that many cases in Texas have been resolved by the process since its inception in 1987.  Indeed Abrams believes that mediation flourishes only in jurisdictions in which it is (or can be made) mandatory. 

In perhaps the most compelling address of the entire conference, Giovanni de Berti of Milan, Italy, explained the year-old Italian law ordering mediation in certain disputes, designed to comply with the 2008 European Directive and also to reduce the backlog of court civil cases.  By the provisions of this law, mediation is a condition precedent to filing a case at all.  This requirement, set forth in Legislative Decree 28/2010, became effective from March 2011.  The sudden surge in mediation that was provoked by this law prompted a response by Italian mediation providers and practitioners almost overnight.  Previously, training and offering mediator services were the domain of Chambers of Commerce, professional bodies (i.e., lawyers, accountants) and a few schools.  Now, teaching schools have grown from 35 in 2008 to 234, mediation bodies from 37 in 2008 to 770.  There is, predictably, a question of quality control in many of these mediations. Applications for mediation in satisfaction of this requirement have grown to 34,000 in the six-month period from March 2011 to September 2011.  Respondents do not always accept the mediation applications, however, because they are disinclined to facilitate the litigation process by satisfying this condition precedent.  About 58% of the mediations that have taken place have resulted in agreement.  Predictably, many more cases settle prior to or after the mediation.  The average value of the disputes that have been subject to mediation is € 93,000. Businesses have been enthusiastic about the mandatory mediation requirement; lawyers have objected to the lack of a provision ensuring lawyer participation in each mediation.  In practice, applicants tend to be represented while respondents do not.  The statute is being attacked before the Italian Constitutional Court as an obstacle to access to justice, and also before the European Court of Justice because of the provision permitting the mediator to advise the court of a mediator’s proposal that is not accepted.  Judges are somewhat concerned about possible abuse of weaker parties who may forsake rights in mediation.  De Berti strongly urged his conclusion (similar to Abrams’) that mediation happens only when judges either strongly encourage it or else require it. 

Stefano Pavletic of Milan, Italy, reported on the same developments, noting that the parties forced to mediate still have control over the choice of providers and the creation of a new register of qualified providers and accredited mediators.  He reported that thousands of people have been accredited as mediators in Italy.  He said that lawyers and other professionals have become aware of this new market and a cultural change may be detected, and was optimistic that many civil cases will be resolved prior to filing in court. 

At the recent Annual Meeting of the CPR Institute in New York, Cornell Professor David B. Lipsky presented some of the results from a recent survey of the Fortune 1000, comparing the current use of ADR with the use that was reported in a similar survey in 1997.  The results are very interesting and, for the most part, good news.

The study was co-sponsored by Cornell’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University, and CPR.  The objective of the study was to obtain information regarding the current use of mediation, arbitration, and other ADR techniques used by major U.S. corporations, focusing on commercial, consumer and employment disputes. 

The results of the influential 1997 survey were published at the time and may be found in Emerging Systems for Managing Workplace Conflict (Josey-Bass, 2003).  That study garnered responses from 606 of the Fortune 1000; the current study has 368 responses.  About half the respondents were General Counsel and half were other attorneys in the General Counsel’s office. 

With respect to conflict resolution “policies” of the corporation, by far the most common (38%) was to “litigate only when appropriate; use ADR for all other disputes.”  The response was about 50% higher in 2011 than it had been in 1997.  Decreases were found for policies of “litigate first, then move to ADR when appropriate” (24% - 19%) and “always litigate” (6% - 1%).

Of the corporations responding, 97% had used mediation at least once in the previous three years; 83% had used arbitration.  Interestingly, 63% reported using Early Case Assessment, a technique that was not in the 1997 survey at all.  Most corporations said they use ADR to save time and money; more than half said it is because it is court-ordered and about the same number use it because it allows them to resolve disputes themselves.

Types of disputes in which mediation was used were almost even with those cited in 1997.  The most frequent were employment, commercial/contract and personal injury.  A boost of almost 35% was reported in the use of mediation in Intellectual Property disputes, however.  By contrast, the use of arbitration fell by about half in employment disputes; by about 40% in commercial/contract disputes; and by a surprising 60% in construction disputes.

Many respondants cited the absence of appeal as a discouraging feature of arbitration.  Many also perceived that the process results in compromise outcomes, though many reputable studies have demonstrated that it is simply not so.  Some cite “external law” making arbitration more complex, costly and time-consuming.  Integrated conflict management systems for employment disputes are now adopted by about one-third of respondents.

Lipsky concludes that about 50% of American companies have adopted ADR as their principal approach to resolving consumer, commercial and employment disputes, and that they employ a wide array of ADR techniques such as ENE, ECA and other approaches that have recently come to the fore.  Moreover, ADR seems to have advanced from a method of companies’ avoiding litigation to a process for managing and resolving disputes at the earliest possible stage, prompted by their own interest.

I feel like an old man.  When I joined CPR in 1998, founder Jim Henry stated that the Institute’s mission was to “put ADR into the mainstream of the American legal practice.”  He seems to have succeeded and then some: ADR is not just in the legal mainstream; it is in the pantheon of corporate best practices.

Jim, take a bow.

Molly Klapper’s book Definitive Creative Impasse-Breaking Techniques in Mediation features an insightful and practical contribution by Dwight Golann about “insulting” opening offers or demands.  He suggests why they are made, how they can be conveyed by a mediator, and how they can be converted to useful negotiations.

To start with, Golann notes that “insulting” is more a term of art than the description of an event.  Lawyers and clients may be dismayed by a low-ball offer or a stratospheric demand, but they are seldom literally “insulted.”  Nor does anyone at a bargaining table get paid more to humiliate the counterparty.  Why, then, are “insulting” openers ever made?

TACTICS.  Golann suggests that an extreme opener may be signaling that the party believes that there is either (a) an attractive alternative to agreement or (b) a high likelihood of an exceptionally favorable outcome to the negotiation.  Moreover, the effect of “anchoring” the discussion by offering an absurd first number may be advantageous in unsophisticated bargainers; ”the less certain a bargainer is about case value… the more impact a high or low offer will have.”

EMOTIONAL VALUE:  Parties whose attorneys have been unsuccessful in instilling clear-headed calmness during negotiation may need to make an emotion-laden opener.  “I spit upon your offer, ptui!”  That out of the way, the party can settle down to real work.

MISEVALUATION:  The party may mistakenly believe that the “insulting” offer is the apporpriate one.  Thus, an insulting opener may contain a great deal of helpful information for the counterparty seeking to learn the opponent’s actual economic assessment.

CLUNKY BARGAINING DECISIONS:  A lawyer may agree that the value of the case is around $20,000, but insist on opening with $1,100,000 “to show I’m serious” or “to give us room to maneuver.” 

INTERNAL DISAGREEMENT:  When lawyers, accountants, spouses and spiritual advisors all give the client conflicting advice, the result might often be an extreme opener, “so as not to look weak.”

The participation of a sophisticated mediator can reduce the possible damage that extreme openers can wreak on the negotiation process.  Most experienced mediators are familiar with the “reality testing” or “probing” skills brought to bear when trying to save a party from its own missteps.  Golann lists five:

ASK THE REASONING:  What’s your thinking?  How did you pick that number?  Can I share your reasoning with them?

DISCUSS THE LIKELY RESPONSE:  How do you think they will hear that.  How would you hear it if you were they?  How do you think they will respond?  Is that the response you want?  What do you plan to do if they respond that way?  What if they respond differently, what will you do then?

BARGAIN OR ADVISE:  The parties aren’t the only ones who bargain during a mediation.  That number may drive them away; what if we halved it to make sure we stay in business?  What if I tell them what you wanted to start with and why, but say you’ve changed your mind to keep us at the table? What could the other side show you to bring your demand down?

PRIVATE INFORMATION: Just for my understanding, I know you won’t go below a million now, but might you later?  Where do you think they ought to be at this point?

OTHER TOPICS: Let’s set the money aside — what do you think of their assessment of their legal defenses?  Where do you think they’re wrong?  How do you suggest we plant the seed that they may be misevaluating the claim?

Golann also offers some thoughts on how the mediator conveys an extreme opener.

CONTEXT: Lay the groundwork of the offeror’s thinking before conveying the offer itself.

GENERAL NOT SPECIFIC:  They made a very low offer, and are still emotional. Let’s wait a while.

CALL IT WHAT IT IS: They offer $5,000, which is so low it hardly helps.  Do you want to play their game and respond in kind, or play your game and open with something that teaches them something about your estimate of the value of the case and gets us back on track?

PROCESS: Put the accountants together, or the lawyers together, or the consultants together.  “Let’s see what’s driving the disagreement about revenue projections.”  Golann points out that this is also code for, cut the b__ s__.

Once we remember that an “insulting opener” is, at its core, either a tactic or an error, then we can defuse its potential for harm and shift the process away from personal vindictiveness and back to solving the problem.

The second post on Molly Klapper’s book, Definitive Creative Impasse-Breaking Techniques in Mediation, focuses on a deceptively simple and profoundly wise short essay by Laura Kaster, Addressing Impasse by Helping the Parties Value the Case.  She opens her piece with a “much overlooked but obvious” point:  “Settling or mediating a case is, among other things, a process for agreeing to the value of the claim. … Impasse often occurs precisely because the parties do not agree on the value of the case.”

There has been a recent mini-tsunami of empirical studies casting skepticism on attorneys’ ability to make objectively accurate determinations of outcomes of litigated claims.  Kaster cites Randall Kiser’s much-touted article, Let’s Not Make a Deal, for one of its many startling findings: that 61% of plaintiffs made errors in rejecting settlement offers, with a mean loss of $42,000; and 24% of defendants made decision errors in rejecting offers, with a mean loss of more than $1,000,000.   

So we must assume that there’s a high likelihood that the parties to a mediation are misinformed about the objective value of the claim/defense.  What is the mediator to do about it?  The client sitting in front of us doesn’t want to make an error in value assessment.  Accuracy is hampered by many barriers beyond the client’s control. 

Kaster notes the phenomenon of “groupthink,” as well as heuristics such as hindsight bias and cognitive dissonance.  She also notes the “sunk-cost bias” that prompts litigants (and their advisors) to throw more money and effort into an endeavor on which they have already invested.  All of these conclusions are made in good faith.  None of these distortions is a choice — they come with the territory.

Techniques to wrestle with this challenge?  First, ask the client to work out a risk-assessment protocol.  That is, encourage the client to be explicit with respect to the assumptions and calculations that underlie the value decision. 

Second, probe conclusory statements like “We have a very strong case.”  A former Chief Litigation Counsel for AT&T, Kaster is accustomed to encouraging the most straightforward calculations of risk for the benefit of business clients:

What is the likelihood of success at trial?

 Slam Dunk.

But what is the percentage likelihood?

80%.

And will the other side appeal?

Certainly.

What is the likelihood of success on appeal?

Slam dunk.  80%.

So you have a 64% chance of winning, subject to further reduction by costs of experts, court reports, trial exhibits, attorney fees, etc.

Being prepared to do the math, and being aware of the cognitive, unintended and unconscious influences on decision-making, enables a mediator to help a party to come to a closer estimate of the value of a case, and may help to lower the instances of decisional error by the parties and their lawyer.

A few years ago I fell head-over-heels for a recording in which a beautiful vocal group — Chanticleer — performed a beautiful 20th Century work — Franz Biebl’s Ave Maria — and I offered it to readers of this blog by way of greetings of the season.

Two years have passed and my cyber-friendships have broadened and deepened.  Yet nothing tops perfection, and so I invite you to treat yourself to five minutes of utter beauty by clicking here.  Very best wishes to you!

F. Peter Phillips

Just before Molly Klapper’s recent and much-mourned death, the New York State Bar Association released a wonderful book she had worked hard to edit: Definitive Creative Impasse-Breaking Techniques in Mediation.  The volume contains many useful contributions from extraordinarily accomplished mediators and trainers.  This and the following posts will highlight some of the best ones.

Rutgers Professor Jonathan M. Hyman writes about “The Roots of Impasse in the Mind of the Mediator.”  It is a perspective I had not even considered before — that the mediator may be the one who is dead-ending the negotiation process by his own closed-off observational skills.  Indeed, Prof. Hyman says as much: “I will argue that mediators may well bear a larger share of the responsibility for impasse than they would like to believe….. The way mediators think about the process of mediation — their modus operandi — may itself intensify, or even cause, impasse.”

Hyman suggests that there are four “approaches” or “mental models” into which mediators often confine themselves while they work.  He lays them out as follows:

Postitional/Distributive:  The mediator seeks to learn the parties’ bottom-line position, and structures the process to overcome resistence to making concessions. (”I want more, even at your expense.”)…Think Lawyers

Value-Creating: The mediator seeks to learn as much as possible about the parties’ underlying interests and needs as a necessary step to move the process ahead. (”Help me out, and maybe we can get you some of what you want, too.”)…Think Fisher/Ury

Relationship: The mediator seeks information about how the parties have related to each other in coming to the dispute. (”How can you be treating me in this awful way?”)… Think Matrimonial Disputes

Understanding: The mediator seeks to comprehend how accurately and fully each party understands the circumstances, perceived facts, feelings and motivations of their opponents and themselves. (”Don’t you hear what I’m saying?”)…Think Friedman/Himmelstein/Transformative Mediation

 The problem comes when there is a mismatch between the parties’ own condition(s) and the mediator’s inclination.  If a party is in the relationship mode but the mediator is seeking to add value, the mediator may be unable to assist with forward movement unless she perceives the incongruity and is willing (and able) to abandon her methodological predispositions.  The key is the variability of the mediator’s own modes, and the skill of really deep listening in order to perceive what mode is needed — what rules this particular game is being played by.

Hyman calls this intense state “listening beyond the music that’s playing.”  The mediator’s task is to listen both to the subject matter being shared, and also the substance of the communication.  “If one accepts the idea that a substantial part of a mediator’s responses and actions in a mediation are the product of an automatic kind of thinking, and if one further accepts the idea that these responses and actions are not random or idiosyncratic but result from mental systems that have some kind of unconcious order to them, then it is important for mediators to keep their ears open for the music beyond the music that they are consciously playing.”

This reminded me of a truly brilliant observation by a mentor at the Royal Academy of Dramatic Art, the late Hugh Crutwell.  He described the state of the actor at the moment of performance not as rehearsed or memorized or prepared or practiced, but rather as relaxed, released, confident, open, unpredicting, unpredictable, ready to pounce when provoked.  His term was that the performing actor existed in ”a state of alert passivity.” 

Oh, how few actors — or mediators – truly accomplish that rare state of being.

The mediation scene in Italy sometimes seems like the upper balcony at La Scala:  Lots of opinions snd shouting but uncertain direction or authority.  Happily, Italy is graced with some real mediation leadership, some of whom are young, enegetic, persistent, articulate and smart.  One such is Alessandro Bruni.

Alessandro has recently posted a two-part article on the current state of mediation in Italy – post-lawyers’ strike, post-European Directive — that is informative and illuminating.  It can be found here and here, and it is hoped that all those interested in this vital part of the legal and economic European scene will devote attention to it.

Mediators are trained to detect subtle opportunities for value-adding integrative outcomes: separating positions from interests, offering out-of-the-box suggestions, and looking for ways that the parties can find mutual benefit.

For me, that ended in an early-career EEOC mediation where the ADA claimant, having been offered every accommodation to her disability, refused to withdraw the claim unless she was paid $600,000 — more than twenty times her salary. 

In mediation, as in life, money talks.  And Dwight Golann has recently reported empirical research backing up that conclusion.

In an article appearing in the Fall 2011 issue of Dispute Resolution Magazine, Golann surveyed some leading mediators and asked whether, in their most recent two commercial cases arising from a significant business relationship, those mediators concluded that the parties had repaired their relationship.  In 17% of the 60 cases reported, the mediator considered the relationship had been repaired, while in 83% it had not been.  And even when the relationship continued it was often a case of “too expensive to get divorced” (such as a dispute over a rent arrearage owed by a business tenant).

Why so low?  Golann  lists a variety of factors that encourage business disputants to stick with their positions and look for the money, not the love.

For one thing, by the time they litigate, it’s too late.  Litigation is itself a signal that the commercial relationship is bankrupt and only damages are left to be determined.  Another factor is the deep well of mistrust that has grown between the parties over years of disputatious behavior, ant that a mere mediation is unlikely to overcome.  Most business disputants have options to continuing the relationship – they can always hire a replacement employee or deal with a different supplier. 

Not only are incentives and rewards for an integrative outcome missing — authority is missing too.  In my experience the “guy with authority” is the guy who can write a check, not the guy who can write up a new contract.   

Golann offers suggestions to mediators who are confronted with money-only negotiations.  But his conclusion?  “Most training does not prepare students well for what they encounter in practice.” 

Well, Dwight, for that matter, does law school?

The Chartered Institute of Arbitrators (CIArb) has sold its dispute resolution provider service, IDRS Ltd., to the Centre for Effective Dispute Resolution (CeDR).  Both organizations see the sale as the beginning of a closer, mutually beneficial, relationship.

The provider program at issue, IDRS Ltd., administers a range of dispute resolution programs in the area of consumer complaints and complaints between businesses and public sector organizations.  As a result of the sale, IDRS will continue as a going concern under CeDR’s umbrella, and CIArb will concentrate on its core business as a professional and membership body.

Both organizations look forward to cooperating with respect to research that will further both CIArb’s responsibilities as a chartered learned society and CeDR’s estimable reputation as an innovator of dispute management approaches.  They are planning to co-host a joint mediation event in early 2012 on the theme of future research in ADR.

The New Jersey Association of Professional Mediators is holding its Annual Conference all day Saturday, November 19.  The keynote speaker is Joanna Jacobs of the US Department of Justice’s Office of Dispute Resolution.

Break-outs will be offered on school peer mediation programs, employment mediation, and the recent revisions to New Jersey’s presumptive court-referred mediation program.  John Harper and Robert Lenrow will deliver a presentation on ethical challenges to mediators.  I will be offering a program on the use of mediation in corporate/community conflicts, and showing the recently released film on the Peruvean community that was displaced by the open pit copper mine in Tintaya.

Substantial savings are available for those who preregister; to visit the registration page click here.

As a final report on the proceedings of the recent IBA Annual Conference, on Thursday November 3 Jane Player and I co-chaired a Panel on “The Use of ADR in the Management and Control of Dispute-Related Costs.” 

I opened the session with an overview of cost-driven ADR systems that have been successfully adopted by corporations.  Two examples were offered:  employment dispute management programs and medical malpractice policies followed by the University of Michigan Hospital and others.  In both cases, conflicts were anticipated (if not capable of precise prediction) and recognized as contingent liabilities.  And in both cases the enterprise approached these contingencies with managerial processes designed to confront the problems, manage them to the mutual satisfaction of the company and the counterparty, and yield an expense outcome substantially superior to the track record of arbitrated or litigated outcomes.

Jane Player discussed a product offered to clients of Bird & Bird whereby, for a fixed fee, a potential litigation was subjected to early analysis of varied granularity.  The result was not simply a budget (though that was one product) but also strategic recommendations, cost estimates for various routes including ADR, projections of ”windows of opportunity” for settlement discussions, and an analysis of the curve denoting ever-increasing settlement values as cumulative costs are invested by both parties over the life of the litigation.

 Kathryn Britten of KPMG in London explained the uses of forensic accountants, not merely as expert witnesses or accounting assistance in preparation for trial of damages, but in review and analysis of documents and other evidence while monetizing the dispute.  She demonstrated a tool by which vocal recordings such as telephone calls could be searched to find instances of a word or a phrase being spoken.

 Muna Dandan, Chief Legal Officer of Barclays Dubai, related the extensive use of mediation and negotiation in Barclays’ operations worldwide.  She emphasized the training of in-house counsel in negotiation skills, and the necessity that the bank directly intervene at an early stage in a troubled loan or financing in order to procure an optimal outcome.  In this sense, she acknowledged that the bank has developed, as part of its daily operations, a problem-identification and dispute-avoidance capability.

 Justice Ali Al Madhani of the Dubai International Financial Centre Courts and Jehad Kazim of the ADR Group of the Dubai Chamber of Commerce outlined the present state of mediation and (to a lesser degree) arbitration in this foremost commercial center in the Middle East.  Fees for these services are low and the instances of parties’ availing themselves of the services are growing exponentially.  Judge Al Madhani also noted the longstanding tradition in Arab countries of negotiation, sometimes through the good offices of a jaha (or wise and respected elder) in both personal and business disputes.  In such cases, explained the judge, there was never an issue of failure to abide by the agreed-upon outcome, because to fail to do so would be disrespectful of the jaha.   He thus touched upon, but did not pursue, the concept that a commercial mediator or arbitrator should not be a “distant neutral,” but rather someone that both parties know and trust.

Two years ago, a session was held at the Buenos Aires IBA Annual Conference on the feasibility of creating a set of rules for the mediation of disputes between investors and States.  The ICSID Conciliation Rules are broadly acknowledged to be clumsy and have seldom, if ever, been used.  For the past year, an IBA Task Force comprising four subcommittees has been working on drafting such rules, and its work was presented in Dubai for comment from the body.

Far from a rough draft, the rules are a robust and elegant document, reflecting considerable sensitivity to both State-investor disputes and to what goes into transnational dispute resolution.  The tone of the rules is both broad and flexible, with sharp delineations where needed.  Among its innovations are: 

• A statement by the proposed mediator of both independence and availability;
• An up-front disclosure of fee basis;
• A three-layered process to appoint a mediator if the parties cannot agree;
• A process for co-mediation if desired;
• A default that mediation communications would not be confidential unless so designated by a party (this provision was criticized during the comment period);
• A well thought-out process for an initial procedural conference;
• Provisions for authorized representation and eventual enforcement that take into account the difficulties of binding nation-states during a mediation.

The drfat Rules will be modified to reflect the comments at the Dubai Conference and then posted at the IBA website for further comment.  Eventually the draft will be presented to the IBA Council for adoption as official IBA Rules. 

Co-Chairs Anna Joubin-Bret and Barton Legum are to be commended for an excellent and very much needed piece of work.

At the IBA in Dubai last week, a three-hour session was held on “The Rise of Multiculturalism and Resulting Challenges of Managing Diversity in the Workplace.”  While the subjects discussed were fascinating, the subjects not discussed might have been even more so.  

The panel was preceded by an announcement from David Lowe of San Francisco, Chair of the Discrimination Law Committee that was co-sponsoring the discussion.  He stated that, five weeks ago, representatives of the United Arab Emirates had notified the IBA that the UAE was no longer willing to host the IBA Annual Meeting and that the event — six years in the planning — would need to be cancelled.  The concern seemed to be centered on seven programs on the agenda that, in the UAE’s view, singled out the UAE for criticism.  This panel was one such.  In response, and without convening the various Committees involved, IBA Executive Director Mark Ellis worked with the UAE representative to modify the titles and descriptions of the programs, offering assurance that none of them would contain attacks or criticisms of the host country.  The UAE relented, but many Committee heads - including Mr. Lowe - remained troubled when they were advised.  Mr. Lowe took this opportunity to advise the audience that neither he nor the Committee had instructed the panelists on what they could or could not say, and that he spurned utterly any effort to censor or control the discussion of the topic at hand.

The topic, in the meanwhile, was the impact on employment law of the rapid increase in diversity in workplaces in various regions of the globe.  Cherie Booth QC of the Blair Partnership in London posited the essential distinction that the conversation was to address: Is the ideal approach to diversity in public institutions one of assimilation or of respect for difference?  She suggested that both approaches may be seen in the United Kingdom.  Sociologically, the wealthy classes tend to “melt” together, while in the less affluent parts of British society one sees Pakistani or Chinese neighborhoods where language, food and social customs of the “old world.”  UK law has been greatly influenced by various European Human Rights directives and rulings from the Strasborg court - initially barring discrimination in the workplace based on race and sex, then later on such attributes as disability, age and sexual preference, all of which, Booth suggested, are meant to be tolerated.

Nimer Basbous of HSBC Bank in Dubai portrayed the UAE as a “mixed salad” rather than a “melting pot,” by dint of circumstance.  Eighty percent of the workforce comes from outside the UAE, and so employing corporations are the engine of diversity in communities.  He emphasized that employers seek talent, and that diversity is an unintended but welcome by-product to this trend.  He reported no problems of intolerance; the UAE is trying to present itself to the world as an international commercial hub, and so diversity is a predictable implication of UAE’s commercial success.

Pascale Lagesse of Bredin Prat, Paris, took the opposite view.  France’s history has inculcated its society with expectations of equality, she said, which expresses itself in the firm practice of treating all people in France the same.  In public schools, for example, the state is neutral, secular and democratic, and the wearing of distinctive religious emblems is forbidden.  Immigrants from Corsica are not permitted to speak only Corsican - all must speak a common language.  Women wishing to wear a burka or other distinguishing cultural or religious dress may not do so in public schools, nor many students wear necklaces with crosses or other identifying emblems. If all French must show their faces while going through security, then no veiled women are allowed to pass through security, regardless of the religious nature of their custom. 

Marianne Granhøj of Copenhagen noted that Denmark’s society was not multicultural until the 1980s, because there had been little immigration until that time.  She predicted, however, that increasingly diverse workforce will yield better business results.  By contrast, Maria Alexia Aurelio of Buenos Aires reportted that Argentina is nothing but diversity, even among the many and varied indigenous populations who have been displaced by the Spanish and other Europeans who built modern Argentina.

Ms. Booth and Ms. Lagesse engaged each other rather directly.  Multiculturalism is a concept entirely distinct from discrimination, said Lagesse.  The question is the proper role of the state.  Is it to protect groups or is it to enforce strict neutrality in its treatment of citizens?  Barring all religious indicia in schools cannot be discriminatory.  Multiculturalism means respect for citizens’ behaviors and beliefs in their families; non-discrimination, on the other hand, means that requirements of unobstructed sight for drivers of motor vehicles are to be applied across-the-board, even if some drivers obstruct their sight with religiously-mandated veils.

The panel discussion, and the break-out sessions that followed, were superbly moderated by Anthony Hyams-Parish of London, Johan Lubbe of New York, and Gerlind Wisskirchen of Cologne.

What was missing, of course, was the elephant (the camel?) in the room.  Relatively stable theocracies such as Iran and Israel predominate much of the world and, with the “Arab Spring,” may be anticipated to grow in number and influence.  While France and England debate the nuances of social tolerance, what of the people who live in countries formed and maintained for the purpose of establishing a religious society?  A particular religion?  While Western thinkers debate the “melting pot” and the “salad bowl,” a great deal of the rest of the world is conformimg to, and finding national purpose in, religious intolerance.  Perhaps the 21st century will reveal the limitations of the precepts of individualism that the Age of Enlightenment proclaimed?

The tireless Hanna Tuempel of the Dispute Resolution Services of the International Chamber of Commerce reminds us that the 7th ICC International Commercial Mediation Competition takes place in Paris on February 3-8, 2012.

In the competition, law students are faced with complex interational commercial problems that they must attempt to resolve by mediation conducted by the ICC’s ADR Rules.  Around 60 student teams and over 120 professional mediators are expected to participate in around 200 mock mediation sessions.  Students’ performance is evaluated by some of the world’s leading dispute resolution specialists who participate in the competition as judges.

Registration is now open.  If you attend, can you let us know how it went?

 The Annual Conference of the International Bar Association opened on Sunday night October 30, 2011, with an address by Mohamed ElBaradei, former Director General of the International Atomic Energy Agency and, with the IAEA, 2005 Nobel laureate.  He focused on the dynamic state of the Middle East and addressed both the rule of law as an incentivizing influence on the creation of the society in which we want to live, and the role of the lawyer as social engineer.

ElBaradei posited that, in many states but particularly in the Middle East, governmental mechanisms are unable to cope with the great challenges that confront us as citizens: the collapse of global financial interdependencies; the persistence of poverty so dire as to induce starvation on a regional scale; the provision of energy in a form that does not despoil the planet; the beneficial application of scientific and technological advances to the broad populace rather than to the wealthy alone; and the persistent respect towards concepts of fairness, equity and justice. 

He noted that, in the Arab world, twelve times the expenditures of the United Nations are directed to armament and “peace-keeping” as to developmental aid.  One million people have been killed during the last eight years in an “illegal, illegitimate war” in Iraq.  (Here he was interrupted by general applause.)  A lack of good government that pervades the Arab world has recently provoked widespread civil unrest in several nations.  Some of this revolt has yielded new authority and others - at least thus far — has provoked renewed violence and repression. 

Globally in even the most developed societies, citizens may be observed voicing impatience with a lack of basic needs and social opportunities; an “obscene gap” between the rich and the poor; and governmental corruption and oppression.  He noted a particularly high degree of distrust and lack of regional cooperation in the Arab world, and shockingly little economic development (except with respect to the production and sale of oil). 

The non-Arab the world seems willing to tolerate the most blatant governmental and social failures in the Middle East, as if they were immune from the consequences of these injustices. The Arab/Israeli conflict, said ElBaradei, has been going on since 1945, and continues into the fourth generation as a continuing source of Arab sense of injustice and humiliation. Western governments support occupiers, ruthless dictatorial regimes, and clearly undemocratic governments for reasons of transparently economic self-interest.  Conflicts are allowed to fester and grow among Arab sects and ideologies, as in Iran, without constraining forces from the region or elsewhere. 

In such a context, the creation of a new government in Egypt is crucial to ElBaradei.  There needs to arise in the region a country that offers a model for ideological moderation, democratic governmental processes, and social and economic justice.  If Egypt is successful in these efforts, it could serve as an engine for welcome regional change.  The role of the international community in supporting this delicate process is crucial; the role of lawyers and the provision of appropriate legal services is impossible to understate.

Once genuine stability is attained in the Arab world, investment opportunities will abound, says ElBaradei.  But were this effort to fail, and regional change were to take place in what he called an “unmanaged” way, the scale of the set-back could be enormous for all countries, not just those in the region. 

So ElBaradei listed certain absolute requirements for regional stability.  The injustices inflicted upon the Palestinian people are intolerable and must end.  Syria and Yemen must come to terms with their people and make the fundamental governmental changes that will permit those countries to move forward as partners in the dawning new age of the Middle East.  The famine in Somalia - as to which the lack of international intervention amounts to an unthinkable crime, in this stage of human development — must be halted.  Afghanistan must form a cohesive, self-governed state, free of imperialistic influences.  Iran must reconcile with the West.  The entire region must encourage mutual cooperation, particularly in respect of economic development.

ElBaradei considers that a Middle East that is at peace with itself and with an interconnected world is not just a vision - it is a necessity.  And in an age in which interconnectivity is becoming ever more fundamental an attribute, he pleaded for a new “mind-set” in which we acknowledge, both as individuals and as nation-states, that we are indeed all connected to each other, all responsible for the consequences of our actions to others — all, indeed, brothers and sisters.

This plea was all the more impressive because it was offered as a pragmatic solution rather than a visionary goal.  The “interconnectivity” that prompts ElBaradei’s urgings is as rapidly advancing as sales of iPhones and as inevitable as the spontaneous text messages that convened the demonstrations of the populous in Cairo.   In reminding his audience of the “gap” between what is happening and how governmental mechanisms lag behind what is happening, ElBaradei is describing, not wishfully hoping.  He suggests that there is no real choice than to alter our “mind sets.”  One is reminded of the words of W.H. Auden in his poem “September 1, 1939″:

There is no such thing as the State
And no one exists alone;
Hunger allows no choice
To the citizen or the police;
We must love one another or die.

The International Bar Association opens its Annual Meeting on Sunday October 30, 2011, in Dubai with an eagerly anticipated address by Nobel laureate Dr. Mohamed ElBaradei.  During the week, the IBA Mediation Committee, under the confident leadership of Babak Barin of Montreal, will offer some robust and discriminating panels.

With the IBA Arbitration Committee, a joint panel will address the strategic use of mediation-type processes in the course of an arbitral proceeding.  Leading arbitration counsel, international arbitrators and mediators from around the world will review the challenges and opportunities raised by hybrid processes where the parties agree either pre- or post-dispute to comb9ne various methods of dispute resolution.

With Jane Player of Bird & Bird, I will be co-moderating a session on the use of ADR in the management and control of costs.  The panelists will address the question: What can lawyers do to help clients manage the inevitable dispute process and are there ways to give better transparency to the process and to the costs throughout?  Mediation plays a role in this; is it in reality a complementary process alongside the more traditional litigation and arbitration processes, or still an “add-on” at the end?

The Mediation Techniques Subcommittee has in the past brought on some unforgettable sessions at the IBA meetings and this year looks to be no exception.  The title of the session is: “The art of mediation — what skills are needed to effectively mediate and how to obtain them.”  Three hours ought to be enough to cover the waterfront on that, right?  Even the Dubai waterfront?

Investor-state mediation has developed considerable momentum in recent years, and will be the topic of another session.  The existing legal infrastructure on the topic is considered by many to be dated.  The State Mediation Subcommitee’s past work has identified a number of ways in which investor-state mediation can be improved and promoted.  One of these is through rules for mediation specifically adapted to this context.  A draft set of such rules will be presented for evaluation and critique.

The Arbitration Committee, Co-Chaired by Mark W. Friedman and Judith Gill, is presenting sessions on hot topics in international arbitration; review of investment arbitration awards; winning damages and other remedies in international arbitration; and perspectives from providers and users on arbitration institutions in the Middle East and Asia.

I hope to provide reports on these and other IBA events during the first half of November.

The second film on the use of facilitated dialogue to ease corporate/community tensions has been posted online.  It may be viewed by clicking here.

This film concerns a vast pit mine in the Tintaya region of Andean Peru, that had been created by the government a generation ago.  The indigenous communities that were forced to relocate were left without a means to continue their way of life, and suffered greatly.  When the mine came into private hands, the new owner — BHP Billiton – was unprepared to be confronted with an angry, resentful, hostile and bitter community.

The film tells the story of a multinational company’s confronting its responsibilities to the society in which it is operating, and using mediation and facilitated negotiation to rectify past errors and to put in place continuing, sustainable methods of conflict identification and resolution, called “dialogue tables.”

The film series is a project of the Kennedy School of Government at Harvard University, in cooperation with the Special Representative of the United Nations Secretary General for Business and Human Rights.  The interviews were conducted by David Plumb of Larry Susskind’s Consensus Building Institute and yielded hours of incisive and  illuminating material, here boiled down to 30 minutes.  The film itself was made by David Stott of Match Productions, and is visually ravishing.

The earlier film in the series, documenting communities displaced by a hyroelectric dam and plant in Luzon, Philippines, can be viewed here.  The third film, which concerns Chevron’s efforts to address community demands in the Niger Delta, should be ready by December 2011.

Juris Publishing has issued a wonderful, concise and revelatory volume edited by arbitration gurus Larry Newman and Ben Shepard.  Take the Witness is a collection of do’s, don’ts, and real-life examples that thread the fine needle of cross-examination before a panel of international arbitrators — many of whom are unfamiliar with, and perhaps even skeptical of, this common-law tradition. 

It is said that international arbitrators prefer to rely on documents rather than witnesses, on the presumption that witness testimony is always self-serving and therefore of scant probative value.  Documents, on the other hand, say what they say without the need to waste time asking them.  Thus, in a forum where even direct testimony is often submitted by certification rather than by questioning, the problem arises where, when, how and why to cross-examine a live witness.

The contributors to this volume raise marvelous topics.  Is your purpose in cross-examination to undermine the direct testimony?  To emphasize selective facts and opinions proffered during direct but beneficial to your side?  To impeach?  To refocus the tribunal to parts of a document rather than the witness’ interpretation of it?  To refute?  To underscore partial agreement?  To argue?  To bring out what the witness failed to say or do?

Contributors Carolyn Lamm, Francis Vasquez and Matthew Drossos cite the first of their “Ten Guidelines for the Cross-Examination of Financial and Technical Experts” as “Know Your Purpose.”  It is not as easy as it may first appear, and becomes more complicated when layered with some of their other Guidelines, such as “Adapt To Your Audience,” “Focus On What The Expert Did Not Do,” and “Do Not Engage In Debates.”

The tone of these essays is as enjoyable as the content is enlightening.  John Townsenddiscusses the charmingly named practice of “hot-tubbing” expert witnesses — allowing experts to give their testimony concurrently and in each others’ presence so that any proffer may be immediately tested.  (Notes Townsend, “There is not much to be done with the paid liar other than to attack.”)  Hilary Heilbron and Klaus Reichert study the art of when to cross-examine, and when to stop cross-examination, by citing the authority of Kenny Rogers: “You got to know when to hold ‘em, know when to fold ‘em.”

Arthur Rovine, in his chapter on “Polite Cross-Examination,” fits in the story of the following colloquy:

Q: You’re not a partner in the firm, are you?

A: No I am not.

Q:  Why not?  Why are you not a partner in the firm?

The roster of contributors reads like a list of the greats in the field.  The mighty Laurence Shore writes on “Cross-Examination Without Discovery.”  David Haigh instructs us on “When to Be Friendly and When to Impeach.”  Robert Smit takes the bull by the horns and addresses “Cross-Examining Before Civil Law Arbitrators.”  And the richly experienced James Carter writes the final word on a notoriously risky decision: “The Perils of Cross-Examination in a Language Other Than the Language of the Proceeding.”

The book is eye-opening, entertaining and richly provocative.  It would be difficult to imagine a more authoritative single volume on the subject, and it is of inestimable value to counsel and tribunal alike.