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Updated: 1 hour 55 min ago

Arbitration Primer for Litigators

Mon, 2016-05-30 11:42

The Dispute Resolution Section of the New York State Bar Association, under the Chairmanship of David C. Singer, has published a dandy 23-page booklet to introduce lawyers accustomed to the courtroom to the intricacies and nuances of representing a client in arbitration.  as the Introduction notes:

It is a common misconception among litigation attorneys that any attorney who has represented a client in court is completely prepared to represent a client in domestic arbitration.  [In fact] the differences between these processes are significant, and could easily prove to be traps for the unwary.

 

Brief and pithy essays are then provided by some of the leading lights of arbitration practice:  Peter Michaelson on selecting arbitrators, Paul Bennett Marrow on issues of arbitrability, Barbara Mentz on conducing a preliminary conference, John Wilkinson and discovery, Geri S. Krauss on conducting evidentiary hearings, and so on.

This is exactly the kind of service that a bar association’s ADR section should be rendering to its fellow attorneys.  Its brevity is very welcome.  Its utility is, as it states, to alert litigators out of their slumber and prompt them to hone skills that are uniquely suited to the curious forum that is private arbitration.

In his book Hooray for Yiddish! Leo Rosten defines a mitzve as a kind, considerate deed that reflects the will of the divine.  His illustration is a policeman who, in persuading a despondent man not to drown himself in the Sea of Galilee, pleads with him: “If you jump I will have to go in after you.  I can’t swim.  I have a wife and two children.  Don’t be so selfish!  Perform a real mitzve.  Go home, and in the peace and comfort of your own home, hang yourself.”

In this spirit I urge upon the reader that buying about 50 copies of this pamphlet and distributing one to every litigator you know would be “a real mitzve.”

New ABA Mediator Ethics Opinion

Sun, 2016-05-15 16:54

In a previous post I noted the work of the ABA Dispute Resolution Section’s Committee on Mediator Ethical Guidance, which interprets the Model Standards of Conduct for Mediators (promulgated in 2005 by the ABA, AAA and ACR).  In that same post, I noted the frequent close correlation between ethical lapses and raw stupidity.

Well, we’ve got another one.

The Committee recently published an opinion that addresses the conduct of a mediator who posted the following on his Facebook page:

Whew!  Just settled my first Superior Court civil mediation.  A case involving a non-English speaking elderly client, who really really didn’t want to have to go through trial.  Possible jury verdict could have been zilch to around $80k.  I got her $50k.

The Committee’s formal opinion noted that the public Facebook post “would not be proper unless the mediator had the consent of all parties.”  I’ll say!

(See, that’s why I wouldn’t do well on Committees like this.  Lack the tact.)

Two grounds were cited in support of the Committee’s analysis.  First, Standard II(B), requiring impartiality, was violated by the mediator’s apparent sole concern on “getting” the plaintiff benefits.  Second, the Facebook post violated two subsections of Standard V (confidentiality) inasmuch as (a) it disclosed facts about participants in, and the outcome of, a confidential mediation and (b) it revealed the plaintiff’s sentiments concerning trial, which were presumably communicated during private session.

This is all very well.  But neither of these lapses sent me off my chair.  The one that jumped out at me was the sentence, “I got her $50k.”

My friend, you “got her” nothing.  One party offered, and the other party accepted, $50,000.  And you didn’t “settle the case” — they did.  It wasn’t “your” case, and it wasn’t “your” mediation — it was theirs.

This conflation of the mediator’s value with the occurrence of settlement during or soon after mediation is too frequent among folks who really should know better.  The case you’re mediating will certainly terminate prior to trial, for one reason or the other, and the fact that it settles during mediation doesn’t mean that “the mediator settled it.”

We often cite the statistic of the teeny number of filed civil cases that are disposed at trial (in federal district courts, 1.1%) in support of the importance of mediators’ contributions to those dispositions.  But what that statistic really shows is that parties usually settle litigated cases prior to trial. It doesn’t show that mediators settle cases that would not otherwise settle in the mediator’s absence.

I accept that mediation (not mediators) frequently prompts parties to consider settlement at an earlier stage than they might in the absence of mediation (though that’s hard to measure).  And I take it as an article of faith that good mediators are more effective than unskilled mediators in facilitating early settlement (though I have never seen reliable statistics on that, either).   But I am skeptical of the notion that a case that was not ripe for settlement nevertheless settled because of the mediator’s efforts.  And I reject utterly the idea that a mediator “settles cases.”

I don’t know whether I’m asking for professional humility or a simple reality check.  I do hope we remember that when we do our job, we don’t settle cases.  We help the parties to do so, if they conclude that it is in their interest to do so.  And when it happens the credit belongs to them, not to us.

With statistics like the ones cited above, we may as well take credit when water runs downhill.

Party Autonomy: “Something They Teach at Pepperdine”?

Thu, 2016-04-14 14:21

A group of sharp and experienced thinkers on the mediation process offered a panel at the recent ABA Dispute Resolution Section meeting in New York before a packed crowd of just-as-sharp practitioners on the topic “Reevaluating the Role of Autonomy in ADR.”  The discussion was led by an ever-patient and always-perceptive Hiro Aragaki of Loyola Law School, and questioned whether party self-determination — often extolled as a primary virtue in ADR and, indeed, Standard I in the ABA/AAA/ACR Model Standards of Conduct for Mediators — is actually a comforting myth.  Prof. Aragaki opened the session with an anecdote about an exchange he experienced where the other discussant eventually threw up his hands in exasperation and said, “Autonomy?  That’s just something they teach at Pepperdine!”

It got a good laugh.  But as the hour went on, it became increasingly clear that party autonomy may, in fact, not exist in the real world of mediation — not ever.

One common example of incomplete party autonomy arises from the disconnect (whether intentional or not) between a party and her representative.  The lawyer, seeing the matter through the lens of damages and contingent fees, may be seeking back-pay while the client might be seeking reinstatement.  Who is the mediator to listen to, and is it the mediator’s job to mediate between them in the first place?  Moreover, if the client were purely autonomous, the lawyer wouldn’t be needed, right?

Another speaker distinguished between self-determination as an attribute (a political or social perspective, as in “this person is a voter”) and as a capacity (a medical, psychological or educational perspective, as in “this person needs assistance to perform daily tasks”).  Does the person sitting in that chair actually possess the capacity to make optimal decisions on her own behalf?  Indeed, isn’t her own uncertainty on that score the very reason she hired a lawyer?  And, one layer up, the reason they sought intervention by a mediator?

Indeed, the whole idea seems to make most sense when applied to people who have control of a situation.  One speaker proposed that powerful white men are among the few who feel comfortable discussing party autonomy — because they are among the few who might actually possess it!  May a woman in 1950 be said to have self-determination?  Or, indeed, a woman today?  Does an employee who needs the job have autonomy in negotiating its terms compared to an employer who merely needs the job filled by someone?  As Anatole France said, does mediation, “in its majestic equality, mean that the rich, as well as the poor, are forbidden to sleep under bridges, to beg in the street, and to steal bread?”

Jennifer Reynolds acts as Ombuds for the University of Oregon, and is accustomed to dealing with individuals who are uncertain as to the appropriate structural, procedural or substantive context in which their concerns may be voiced.  Indeed, their confusion is what prompts them to call the Ombuds office.  Does lack of clarity on what you want and whom you want if from amount, in practice, to lack of autonomy?  When one party to a divorce is financially dependent on the other, may each party be said to be autonomous?  Same goes for employment disputes: As one speaker put it, “Getting fired is pretty disempowering.”

The attendees left with a more nuanced and more useful understanding of the principle of “party autonomy,” which released us as neutral facilitators.  When we find ourselves trying to solve a conflict, we all are disadvantaged to some degree.  We all are interdependent; what we decide in a mediation room will have an impact on people other than those who are present. None of us acts in a vacuum and none of us has perfect parity in either factual knowledge or negotiation skills.

Instead we might, as students and practitioners of the facilitative process, hope merely to provide help that a party did not otherwise have.  We might seek to experiment; we might even hope that the exchange is, to some degree, transformative to the troubled or broken relationship.  But to posit that the people in front of us are autonomous is simply delusional.

UIA Mediation Forum and Employment Systems Design

Thu, 2016-04-14 12:42

The Union International des Avocats have hosted the World Forum of Mediation Centres since 2002, and I have attended all but three of their meetings.  It is a convivial crowd of well-informed, deeply committed and sociable folks who tend to meet at interesting (mostly European) venues.

The meeting scheduled for Luxembourg on April 22-23, 2016, will feature many of the topics and speakers that make the organization so valuable.

It will be tinged with tristesse on this occasion, however, since it will be the first time that the late Colin Wall, co-President and co-Founder, will not be with us.  By way of both honoring and exemplifying Colin’s devotion to sharing insights on mediation, the program designers have asked various speakers to contribute a paper for inclusion in a volume to be published in Colin’s honor, proceeds to go to his designated charity.  My topic is systems design for employment dispute resolution, and the article follows.

Designing Employment Dispute Management Systems

Peter Phillips[1]

               In 2002, CPR Institute for Dispute Resolution[2] published a compendium of 20 American employers’ internal workplace dispute programs (the “Compendium”).[3]  The Compendium also included a comparative analysis of certain attributes of these programs,[4] as well as interviews with six program designers and administrators.[5]

This article summarizes the findings of this study. Some of the concerns addressed by the internal programs are unique to the American context, particularly its regulatory and statutory environment concerning workplace rights and regulations.  The overall approach reflected in these programs may nevertheless be of interest to students of workplace dispute resolution in other countries.

Why do companies adopt internal employment dispute systems? 

How do they measure whether the systems are successful?

            The impetus for most employment dispute resolution programs is usually managerial, and only secondarily legal.[6]  Though many companies are prompted to create employment dispute programs because of an adverse judicial ruling involving a class of employees, [7] a systematic managerial approach to workplace conflicts, clearly articulated and neutrally applied, lends consistency and manageability to the workplace.  It assists in identifying flaws (including supervisory weaknesses) in the workplace that might otherwise undermine employee confidence and morale.  It discourages intuitive, retaliatory, or vituperative managerial response to employee behavior.  Corporate policies and interests, rather than individual supervisors’ predispositions, drive company practices in the workplace.

            Additionally, there are the benefits of preventive legal exposure.  Managerial efforts to identify conditions or behaviors that might ripen into a legally cognizable cause of action, and to create nonlitigious avenues of redress, are clearly economically beneficial.[8]  Thus, well-planned and properly administered employment dispute management programs are not only managerially rational, but legally prudent.

The managerial goals of a dispute management program require the adoption of appropriate metrics.  That is, companies measure success in this area the same way they measure the success of any organizational system or policy – by a metric chosen for that purpose.  The effectiveness of employment dispute management programs might be measured by any of the following criteria:

  • How long does it take between the initiation of an employee complaint and its satisfactory resolution? And what resources (person-hours, days, etc.) are expended in that process?
  • What are the average costs of internal and external counsel in addressing an employee complaint?[9]
  • What is the rate of employee turnover before and after establishment of the program?
  • What is the rate of employee complaints filed with external government regulatory agencies?
  • What is the rate of employee utilization of the program?
  • To what extent are resolutions achieved at a junior management level, without implicating senior management time?
  • Are users generally satisfied with the experience of using the program? Would they recommend that peers use it?[10]

These metrics are merely indicative.  Each employer may adopt measurements that suit its management goals.[11]  The main point is that setting metrics to determine the effectiveness of any program is as important as creating the program itself.

Structural overview

            Almost all of the programs in the Compendium were designed with sequential and progressive phases, or steps.  Classically, the first step was consultative and informal; the second step was professionally facilitated formal negotiation (such as mediation), and the third step was adjudicative, either public (litigation) or private (arbitration).

Distinctions among the programs were variations on either the details of these processes or their sequence.  Some companies allowed mediation without the requirement of prior consultation.  Some companies made mediation optional for employees but, once selected, mandatory for supervisors.  Some used Human Relation officers as the first consultative step; others had peer review systems or methods to consult with management other than one’s immediate supervisor.  In some programs arbitration was binding on both parties; in others it was binding on the company but optionally binding on the employee.

Some companies required employees to use the program; others simply offered it.  One company encouraged employees to seek legal advice before accepting a proposal in settlement, and even offered to pay towards the employee’s legal costs for this purpose.  One company had no requirement of sequential use of its steps, and offered four rather than three: an “Open Door” or “Hot Line” option, an “Internal Conference” option, a “Mediation Option,” and an “Arbitration Option.”  Some companies required employees to waive court redress and agree to final and binding arbitration as a condition of employment; others offered but did not require it.

In designing “stepped” employment dispute management programs, all of the companies studied found it necessary to confront certain considerations.  These included:

  • Scope: Which employees will be covered by the program, and which disputes are cognizable under the program? Within the program, are some claims included in informal consultations but excluded from arbitration?[12]
  • Cost: Should employees be required to contribute to the cost of processes such as mediation or arbitration? Would cost-sharing deter usage, or would it ensure that the employer is not perceived as “owning” third-party neutrals such as mediators or arbitrators?
  • Neutrality: Who makes the choice of arbitrators and mediators?  How should the program address the risk of the “repeat-player syndrome,” where the same arbitrators are hired repeatedly by the company and are perceived by employees as incentivized to find in favor of the employer?
  • Incentives/Rewards: Many managers of well-designed programs are concerned to maximize employee usage. Should the program offer an incentive to prompt employee usage, or a reward as a consequence of usage?
  • Collaborative Design: Should the program be designed and then unveiled to the workforce, or should representatives of the workforce be enlisted in the design process? One employer strategically engaged union representatives who were predicated to object to the program, in an effort to co-opt that objection and create “ownership” by trusted members of the workforce.
  • Implementation: Even the most sophisticated program is ineffective unless utilized.  Who shall the program be communicated to employees?  Will junior supervisory management perceive that their authority has been undermined?  Should the “C-Suites” be involved in launching the program and making clear the company’s expectations of compliance with its directives?[13]

Skills of consensus-building are particularly valuable in this context.  The broader the input in program design, the more likely the program will be effectively implemented.  Objections to any program features are best heard early in the design stage, and not only addressed, but seen by the objector to have been addressed, in order to obviate their inevitable airing at a later time in less flexible circumstances.

The challenge of early problem identification

Four attributes of successful internal employment dispute management programs may be articulated as:

  • Providing expense-reduction benefits through front-ending resources to address problems before they ripen into more costly disputes
  • Encouraging amiable resolution of conflicts while avoiding animosities engendered by litigation
  • Building “early detection” mechanisms into the workplace to discover and address issues with supervisory error
  • Providing an adjudicatory process – when needed – other than public litigation

There are a variety of ways that the benefits of early detection of workplace problems may be accomplished.  One is the establishment of the office of organizational ombudsman.  Such an office is a resource to all members of the workforce, including managers and supervisors, and points inquirers to routes for solutions in a confidential atmosphere.  The ombudsman office is not part of Human Resources or the Legal Department, and is answerable directly to the office of the president of the organization.

This is an area in which responsible innovation may reap substantial rewards.  One program administrator, when asked what types of issues the program would address, replied that he would discuss with an employee concerns about the patterns of the linoleum on the floor, on the assumption that if the employee voiced concern about that, she had a broader concern about something else, and unless he heard about it now he ran the risk of hearing about in later, in the form of a legal filing.

The underlying premise is broadly shared:  Allocation of institutional resources to identify problems at an early stage is the most effective way of preventing later, more expensive claims or disruptive incidents in the workplace.[14]

Conclusory Observations

At the time the Compendium was compiled, not all participating companies maintained statistical reports of trends of usage, outcomes and user satisfaction levels.  Moreover, many of these programs no longer are in operation, either because of corporate restructuring, program modification, or other reasons.

Nevertheless, certain of the observations drawn in 2002 may still be useful for program designers today.  Among the most prominent are:

  1. Nearly all disputes submitted to systemic employment dispute resolution programs are resolved by agreement, and very few go to arbitration. Halliburton and Johnson & Johnson reported that fewer than 2% if disputes entering their programs proceeded to the arbitration stage.  General Electric reported only one arbitration in the 1998/99 period.  Shell reported fewer than 1% of the matters entering its program were arbitrated.[15]
  2. A good mediator can be hard to find. Though the market has likely changed in the 15 intervening years, as of 2002 many program administrators reported that few mediators had a background in employment law and few employment lawyers were trained in mediator skills.
  3. Many employees are skeptical of company-promulgated employment programs. Many of the administrators were confident of the fairness and efficacy of their programs, but spent a great deal of time trying to convince employees to use it.[16]  High employee satisfaction rates reported by those who did use the program seemed to have little effect on others’ usage.
  4. Reactive response, rather than proactive identification, still predominates management thinking. All programs were designed to respond to employee-initiated complaints and concerns.  None was designed to seek out the sources of employee dissatisfaction and prevent such concerns from arising in the first place.  Reactive policies have inherent limitations as managerial tools.
  5. The program does not result in increased employee complaints. None of the program administrators reported any change in the rate of voiced concerns in the workplace.  The concern that an institutionalized dispute management system might encourage or invite dispute reportage turned out to be a canard, with no data backing it up
  6. Cultural and legal assumptions persist. Employers in the United States approach employee conflicts from the assumption that employment is “at will” and the relationship can be terminated for any non-discriminatory reason.  By contrast, employees approach workplace conflicts in the context of a matrix of “rights” that legislatively express social values and give rise to legal causes of action.  In a given dispute, neither party has reason to reframe their vocabulary to articulate underlying interests.  The “rights” rhetoric of workplace conflict is pervasive and undeniable; rights-vindication is frequently the reason the problem is being pressed.
  7. The unavoidable still needs to be adjudicated. Despite the indications that efficiency derives from reallocating institutional resources from the back-end of a dispute to the less expensive front-end, it does not follow that all disputes will be resolved at the front-end and none will require adjudication.  The success of these programs does not imply that arbitration or litigation will one day be obsolete.  Rather, these programs address the many organizational benefits of resolving concerns at a very early stage, reserving costly adjudicatory processes for the very few instances where it is needed.

 

[1] F. Peter Phillips is a mediator and arbitrator in Montclair, New Jersey, USA.  His professional website is www.BusinessConflictManagement.com.  He is Adjunct Professor and Director of the ADR Skills Program at New York Law School.

[2] Now the International Institute for Conflict Prevention and Resolution.  See www.cpradr.org.

[3] CPR Institute for Dispute Resolution, How Companies Manage Employment Disputes: A Compendium of Leading Corporate Employment Programs (2002).

[4] The companies whose programs were included in the Compendium were Alcoa, Anheuser-Busch Companies Inc., Bank of America, CIGNA, Credit Suisse First Boston, General Electric, Halliburton Company, Johnson & Johnson, Masco, McGraw Hill, MG Company, Pfizer, Philip Morris USA, Rockwell, Shell, Texaco, United Parcel Services, UBS Paine Webber, U.S. Air Force and U.S. Postal Service.  The programs included were those in effect in 2002.

 

[5] The Compilation included interviews with Richard R. Ross, Senior Associate General Counsel, Anheuser-Busch Companies, Inc.; Donna M. Malin, Assistant General Counsel, Johnson & Johnson; Wilbur Hicks, Shell Oil Company; Geoffrey Drucker, Chief Counsel, Dispute Resolution and Prevention, U.S. Postal Service; Teri P. McClure, Corporate Counsel – Employment, United Parcel Service; and Elizabeth W. Millard, Director and Counsel, Credit Suisse First Boston.

[6] Richard R. Ross of Anheuser-Busch Companies stated in his interview, “We saw the Dispute Resolution Program as a means to not only provide [a dispute resolution] avenue for employees, but also encourage better management practices.”

[7] Geoffrey Drucker, administrator of the REDRESS program at the U.S. Postal Service, said in his interview that, although “the settlement of the class action [in a Florida lawsuit] was the immediate impetus, behind that was a concern about this rise in complaints and a desire to do something about it.”

[8] Elizabeth W. Millard of Credit Suisse First Boston said in her interview that to some degree the company “saw a dispute resolution program as a way of promoting management accountability, because it can demonstrate to managers that, if they make inappropriate decisions, the company will take employees’ complaints seriously, and support the employees’ efforts to seek redress.”

[9] Donna M. Malin of Johnson & Johnson said in her interview that the primary metrics her office maintained were the number of employee-related lawsuits and the expense of outside counsel.  A secondary metric was the time from assertion of the complaint to resolution.  Teri P. McClure of United Parcel Service stated in her interview that “[t[he main reason UPS started looking at alternative dispute resolution is because the largest percentage of our legal department budget was spent on labor and employment related matters.  We were looking for ways to reduce costs with respect to labor and employment-related litigation.”

[10] Geoffrey Drucker of the U.S. Postal Service notes that the metric chosen has a relationship to the program goal.  In his interview he said that the primary purpose of the program was “to improve the workplace environment,” and the program valued information on user satisfaction higher than rates of resolution.  “[W]e’re getting about 40% success rate in terms of resolution.  And levels of satisfaction with the process are [in the high 90s].”

[11] Wilbur Hicks, who administered the Shell RESOLVE program, said in his interview that the CEO of Shell specifically abjured metrics as a means of evaluating program success.  “[H]ow do you measure that – people feeling that they have more of a stake in what happens to them in the workplace?  In fact, Phil [Carroll, Shell’s President at the time of the program’s adoption,] would probably say, ‘Gee, if the number of complaints went down, that’s not what I want – I want the number of complaints to increase.  I really want people to feel safe bringing forth these issues.”  In fact, complaints did not increase.

[12] Elizabeth Millard of Credit Suisse First Boston articulated, in her interview, the rationale behind designing that company’s program to “cover[] everything as well as everyone”:  “I think some companies have decided that they are better off in court with some types of claims – bonus claims, for example.  Whether or not that is true is not an issue for us.  We are committed to the principle of alternative dispute resolution for employment-related claims.  And if employment ADR is a good thing, then its benefits should be made available as to all types of claims.”

[13] Richard Ross of Anheuser-Busch Companies stated in his interview, “The only reason this worked was that we had the full support of senior management, including the CEO.”  Teri McClure of United Parcel Service said that, “as part of the rollout, we used a videotape that included our CEO and our senior VP of HR, telling people that this program was something that the company takes very seriously.”

[14] Wilbur Hicks, of Shell, said in his interview, “We’re getting these things earlier in the process, when the emotions haven’t ratcheted up.  Big lawsuits drag on and on and people perceive that the company is resisting and holding out and they become more and more angry, so the price of resolving it goes higher and higher.”

[15] The overall theme was voiced by Elizabeth Millard of Credit Suisse First Boston in her interview: “I think the information is reliable, and that it convincingly demonstrates that, as a result of the program’s being in place, disputes are resolved sooner and at a lower cost in terms of legal fees and other transaction costs.”

[16] Teri McClure of United Parcel Service said in her interview: “I can’t emphasize it enough – the senior management buy-in and the marketing, the on-going marketing of the program.”

 

ABA Dispute Resolution Conference April 7-9, 2016

Fri, 2016-03-25 18:31

The ABA Dispute Resolution Section Spring Conference is always a highlight.  For 2016 it’s being held in New York City, making it real easy for me.  The breadth and scope of the topics are, as usual, phenomenal, making this event consistently the Class Act of the ADR year.

I’m involved in two presentations.  Section Chair-Elect Nancy X. Walsh has headed a Section Task Force on the recommendations of the CFPB concerning pre-dispute arbitrations and class-action waivers in consumer contracts, and I’ll join that group to help facilitate a discussion on that important topic on Thursday at 9:30 a.m.  And at 2:00 p.m. on Thursday a group of students will offer their perspectives on what it’s like to learn ADR in law schools these days — not from casebooks, but from clinics, internships, simulations, international competitions, and taped exercises.

On Wednesday there’s a full-day Symposium on ADR in the Courts, including several speakers on the timely subject of mediating claims of police excessive force under Section 1983.  The ABA National Competition on Representation in Mediation takes place during the conference.  ABA President Paulette Brown will offer opening remarks, and between that and the Legal Educator’s Colloquium on Saturday I counted a ga-zillion and two programs, their very existence a testament to the astonishing diversity in practice and content in our field.  Bob Mnookin will receive an award for scholarship.  Laura Chasin, Judith Kaye and the New York Peace Institute will received deserved honors at the Section Awards Dinner on Friday night.

The link to the registration page is here.  And as they say….

Failure to Mediate Held as Ground for Summary Judgment

Fri, 2016-03-25 18:01

A recent decision of the Supreme Court of Nevada addresses the question whether a party’s ignoring a provision in a commercial contract requiring mediation prior to commencing litigation may be grounds for dismissal of the action.  In MB America, Inc. v. Alaska Pacific Leasing Company, the court said it was, confirming the award of summary judgment in favor of the defendant.

Alaska Pacific agreed to be a dealer to sell certain rock-crushing machines manufactured by MBA.  The contract provided:

Any disputes or questions arising hereunder… shall be submitted to mediation… with the rules of the American Arbitration Association….  If mediation between the parties does not result in a mutual satisfying settlement withing 180 days after submission to mediation, then each party will have the right to enforce the obligations of this Agreement in the court of law of Reno, Nevada with all reasonable attorney fees, court costs and expenses incurred by the prevailing party in such litigation to be paid by the other party.

Upon a dispute’s arising concerning equipment purchases made by Alaska Pacific, MBA filed a suit seeking (a) a declaration that it had not breached the contract and (b) specific performance of the mediation provision of the contract.  Alaska Pacific filed a motion for summary judgment on the ground that, in not engaging in mediation prior to filing suit, MBA had failed to perform a condition precedent to litigation.  The district court granted Alaska Pacific’s motion, and awarded its attorney’s costs pursuant to the contract.

The coincident request by both parties seeking that mediation take place gives one pause about the facts, but it did not pose a concern to the Nevada Supreme Court.  The mediation provision was perfectly clear that a claimant had to file for mediation with the AAA prior to initiating suit; Rule M-2 of the AAA’s Mediation Procedures spelled out perfectly clearly what steps a party must take to initiate a mediation with the AAA; and it was uncontested that MBA did not take them.

MBA protested that it had informally approached Alaska Pacific to mediate and had been rebuffed, not only excusing it from the requirement to mediate but, indeed, informing its request that the court order mediation.  Neither the district court nor the Supreme Court was moved, however, notwithstanding that several letters from MBA alluding to mediation were part of the record.  “As the prelitigation mediation provision constituted a condition precedent to litigation, and MBA initiated litigation without complying with the prelitigation mediation provision in the Agreement, the district court’s granting summary judgment was proper.”

Interesting though it is, that an agreement to engage in facilitated negotiation prior to litigating is held to be an enforceable condition precedent (inasmuch as it might be difficult to determine whether that condition was indeed fulfilled), more interesting to me is why counsel for MBA didn’t just file for mediation pursuant to M-2, rather than writing letters about it.  It’s not a very onerous procedure, and it’s way cheaper than engaging in discovery, defending against a summary judgment motion, and appealing to the Nevada Supreme Court.

I’m perplexed.  Then again, I often am.

International Dispute Resolution in London

Fri, 2016-03-04 09:53

Click and Clack, the Tappet Brothers, reserved a spot in their NPR show “Car Talk” for what they called the Shameless Commerce Division.  I’m taking a page from their book by bringing your attention to a CLE event that is quite special — five mornings in London during the week of June 13, in which some of the most accomplished figures in cross-border dispute resolution will share perspectives with American practitioners.  And it includes a session on the Woolf Reforms, with former Lord Chief Justice Harry Woolf — conducted in the Houses of Parliament!

New York Law School’s ADR Skills Program has designed a CLE program on International Arbitration and Mediation that will be of particular interest to practitioners of dispute resolution, cross-border commercial transactions, and international law.  The program features presentations by the leading UK-based practitioners, including former Lord Chief Justice Lord Woolf, who has invited us to the House of Lords.  Other speakers include former Northrop Grumman European Legal Director Wolf von Kumberg, CEDR CEO Karl Mackie, former CIArb European President Andrew Burr, mediator Tony Willis, Helen Ashenden of Lloyd’s, and  Global Pound Conference sponsor Alex Oddy.

Those registering before April 15 enjoy $150 off the fee.  Members of the ABA Dispute Resolution Section and NYLS alumni enjoy a further $200 discount.  The event is scheduled for mornings-only, to accommodate those who would like to combine CLE with a family trip.  A detailed agenda is provided below and the registration form is here.

AGENDA Monday 13 June   Brick Court Chambers

0900    F. Peter Phillips, NYLS:  Overview of Course, Challenges of Jurisdiction, Introduction to New York Convention and Cross-Border Mediation

1000    Tony Willis, Brick Court Chambers: Mediation Techniques for Cross-Cultural Disputes; Building an ADR Practice

1050    BREAK

1110    TBA: CEDR Commission on Settlement in International Arbitration; Issues in Cross-Cultural Mediation

1200    Sir Richard Aikens, Brick Court Chambers: Arbitration Practice

1250    ADJOURN

 

Tuesday 14   House of Lords

0900    Karl Mackie, CEDR: Overview of Commercial Mediation in the U.K.

1000    Lord Harry Woolf: The Woolf Reforms and their Impact on English Litigation

1050    BREAK

1110    Pierre Raoul-Duval, Gide Loyrette Nouel: Challenges in Representing Clients in ICC Arbitration

1200    Joe Tirado: International Arbitration using SIAC Rules

1250    ADJOURN

 

Wednesday 15 June     Baker & McKenzie

0900    Ed Poulton, Baker & McKenzie: Investor/State Arbitration & Mediation

1000    Wolf von Kumberg, Former European Legal Director and Assistant General Counsel, Northrop Grumman Corporation: Cross-Border Commercial Dispute Resolution from the Client’s View

1050    BREAK

1110    Andy Moody, Baker & McKenzie: International Arbitration using LCIA Rules

1200    F. Peter Phillips: Ethics for Arbitrators

1250    ADJOURN

 

Thursday 16 June   International Dispute Resolution Centre

0900    Damian Hickman, IDRC: Welcome to IDRC

0910    Helen Ashenden, Lloyd’s: Introduction to Lloyd’s; a Global Perspective on Insurance ADR; ARIAS UK fast track arbitration protocol

1010    Paul Moss, Inrem: International (Re)Insurance Dispute Resolution

1100    BREAK

1120    Dominic Spenser Underhill: ICC Task Force on Reducing Time and Cost in International Arbitration

1210    Alexander Oddy, Herbert Smith: Global Pound Conference

1300    ADJOURN

 

Friday 17 June    Chartered Institute of Arbitrators

0900    Andrew Burr, Elina Zlatanska, Nabeel Khokhar, Chartered Institute of Arbitrators: Introduction to the CIArb; CIArb’s Revised Arbitration and Dispute Board Rules and Adjudication Guidelines; ICC’s Revised Dispute Board Rules; CIArb Guidelines for Interviewing Arbitrators

1050    BREAK

1110    Burr, Zlatanska and Khokhar: CIArb Issues Cont’d

1200    F. Peter Phillips: Ethics for Negotiators and Mediators

1250    ADJOURN

 

To register click here.

 

 

Splendid New “Must-Have” Book on Mediation

Tue, 2016-02-23 13:39

Of all the volumes on mediation — many of them very good, some of them of great practical value — few are “must-have” volumes, in my mind.  One “must-have” is Dwight Golann’s Mediating Legal Disputes.  It is well-thumbed and as recently as last night I had occasion to pull it down to review techniques for overcoming impasse.

At the ICC International Commercial Mediation Competition in Paris earlier this month I was pleased to learn that my friend and colleague Thierry Garby had released a book on mediation, Agreed!  Of course I bought it.  But I didn’t realize at the time just how very good it is.  It joins Prof. Golann’s volume as a “must-have.”

Thierry’s careful, mindful and comprehensive understanding of mediation is based not on inspirational or aspirational vision, but on small, experiential observations, that are piled upon each other.  The result is a compendium of insights and guidance of great authority.

A random example of what I mean is a section on the technique of reframing — what Thierry reframes as “reformulation,” and distinguishes from other closely related skills  He defines the technique as offering “as summary of what was said in words showing what the listener understands in an effort to reflect as well as possible what the speaker is trying to express.”

That definition alone rewards analysis.  It is not the restatement of what the speaker just said in an effort to show that the speaker has been heard, or to defuse its objectionable or finger-pointing elements to make it less objectionable to the other listeners at the table.  Nor is it an effort to clarify the content of what was said.  It is an effort to state what the listener understands the speaker is trying to say.  And, good teacher that he is, Thierry gives examples:

Initial Speech:  When I left home this morning, I quickly put my coat on but when I got in the car I felt bundled up and I had to take it off.

Repetition: You put your coat on when leaving the house this morning and when you arrived at the car, you took it off because you did not want to be bundled up.

Paraphrase: So you first put your coat on.  That was when you left home.  Then you took it off because it was bothering you when you were driving.

Reformulation: I understand that you were cold when you left home.  Nevertheless you took your coat off to not be hemmed in when driving.

The “reformulation” differs from the repetition or the paraphrase because it doesn’t seek to say back what was heard in different words, but instead to “add sense to the words… to deepen your understanding even when the words were perfectly clear.”  It is, in effect, the listener’s invitation to the initial speaker “to clarify what really matters to him.”

This is good stuff, and the book abounds with similar examples to support meaningful and nuances ideas.  No skill of mediation escapes the author’s attention and analysis, with a tone always to incite revisiting, refreshening and adjustment of one’s understanding.

Thierry told me that publication was delayed for over a year because he labored to translate it into English himself.  Certain idioms suggest that the task might have been better assigned to someone other than the author.  But why quibble?  This is solid gold.

In his Foreword, Thomas J. Stipanowich captures the essence of what makes the book distinctive:

[Garby is a] wide-ranging, captivating  enthusiast who brings his own form of brio to all aspects of life…. Appropriately, his primary emphasis in these pages is the importance of emotions — the human need for love and belonging, the esteem of others and ourselves… that is, it is focused on negotiation and the heart, as opposed to the head….  Garby consistently promotes the centrality of emotions as the “gas and the engine” of conflicts….

It’s a wonderful book, chock full of insight and guidance, and very highly recommended.

Labor Arbitration: A New Resource

Tue, 2016-02-23 12:55

A recent message from the University of Missouri announced a valuable addition to dispute resolution resources online.

In their own words:

The Center for the Study of Dispute Resolution at the University of Missouri School of Law (CSDR) is delighted to announce the launching of ArbitrationInfo.com.  In 2014, faculty at the CSDR and the National Academy of Arbitrators (NAA) began conversations about a possible collaboration on a website that would provide information about labor arbitration. Leadership of the NAA, founded in 1947 as a nonprofit honorary and professional organization of arbitrators in the United States and Canada, was concerned about the manner in which labor arbitration and the arbitration process were being portrayed in the media. With the expansion of the use of arbitration outside the labor area, particularly in consumer and employment disputes, negative descriptions of the process in the media had reached an alarming level. While some of the criticism in these other areas was, and continues to be justified, the NAA feared that such criticism could have a delegitimizing effect with regard to labor arbitration.  Our initial conversations led us to believe that in part some of the press that arbitration was receiving was due to misunderstandings and misinformation about the different contexts in which arbitration was used and the various types of arbitration.

 The website addresses these concerns by providing the public, professionals and the media with a neutral, noncommercial and comprehensive source of information about arbitration. It includes an Arbitration 101 page, which serves as a primer on the arbitration process.  In addition, the site features a list of press contacts who are available to talk to members of the media about arbitration. The website is managed by an editorial board composed of members of the NAA and faculty at the CSDR. Students at the School of Law have the opportunity to develop content for and help maintain the website, in collaboration with distinguished members of the NAA.  Unlike other arbitration-related websites, ArbitrationInfo.com doesn’t generate or funnel business to a particular arbitrator or an arbitration practice group.

 For a short essay describing the origins of the website and an ongoing research project on the subject of the media’s portrayal of arbitration see pages 19-23 of  Explorations in Dispute Resolution Scholarship.

It’s been a constant worry, as legitimate criticism of misapplications of arbitration persist, that the traditional and entirely appropriate use of arbitration becomes marred or, worse, subject to overbroad regulation.  It’s gratifying to know that someone is sticking up for the process as used in familiar and timeworn contexts..