International Commercial Mediation Update: UNCITRAL Working Group II Moves Forward on Convention and Model Law

erinBy Erin Gleason Alvarez

The United Nations Commission on International Trade Law (UNCITRAL) Working Group II met at its 68th session in New York from February 5 through 9 to finalize draft convention and model law documents. The focus of these instruments is on the enforcement of international commercial settlement agreements resulting from mediation.

Working Group II was initiated by UNCITRAL in 2014 in order to explore whether it is feasible to develop mechanisms for the enforcement of mediated agreements in international commercial disputes.  Since then, there have been several sessions to explore the most appropriate path forward.

The need for this Working Group grew out of concern that parties to mediated agreements may not be afforded the same protections as those available in international commercial arbitration. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), entered into force in 1959, obligates States to recognize and enforce arbitral awards made in other contracting States.

To accommodate parties’ desire to mediate international commercial disputes, practices have emerged to try to transform a mediated settlement agreement into an arbitral award. In addition to practical concerns over enforceability, these steps add significant process to mediation, which parties tend to like because it is simpler than arbitration (among other reasons). Other recourse for enforcement of mediated settlements in international commercial disputes can include pursuing claims for enforcement of the agreement under contract law. But this may also be difficult in the international context, depending upon the jurisdiction where enforcement is sought. Protracted cross-border litigation to enforce a mediated settlement is counterintuitive at best.

Thus the proposed model law and convention seek to alleviate these concerns, recognizing the increased use of mediation in the international commercial context and the benefits that the mediation process affords parties. The instruments, as they are currently drafted, address both enforcement concerns and the possibility for a party to invoke a settlement agreement as a defense. To date, changes have not yet been uploaded to the UNCITRAL website that would show the most recent revisions to the draft model law and convention. The most recent drafts are available here.

By way of background, a “model law” is a template of sorts, for States to consider adopting locally. A “convention” on the other hand is an instrument that is binding on States and other entities (so long as they are signatory to the document).

What does all of this mean for parties to mediation? For now, it means waiting for further developments. UNCITRAL must ultimately approve the instruments before any adoption or ratification processes may commence. The Commission will commence review this summer.


Erin Gleason Alvarez is Principal at Gleason Alvarez ADR, LLC.  She serves on the CPR Institute Panel of Distinguished Neutrals and co-chairs the CPR Institute Mediation Committee.  Erin previously acted as the former Global Head of ADR Programs for AIG. 

Erin now serves as mediator and arbitrator in commercial and insurance disputes and may be reached at erin@gleasonadr.com

Ethics Issues in Mediation: Confronting the Maze of Confidentiality and Privilege

By Ginsey Varghese

With a rise in litigation about mediation, likely linked to its  increasingly common use, it is important to take a closer look at the ethical issues facing both the mediator and advocate in a mediation.

What are the ethical obligations of mediators to parties when engaged in “shuttle diplomacy” in private caucusing? How does blanket confidentiality in mediation agreements intersect with attorney-client and work product privilege? In disputes following mediation, will courts pierce the confidentiality of mediation? Can mediators be subpoenaed to testify?

These hairy contours of the law and mediation were addressed in an interactive panel hosted jointly by CPR, Practical Law, and Jenner & Block, LLP on January 8, 2018.  The panel was moderated by Steven Skulnik (Editor) of Practical Law, and featured Noah Hanft (President and CEO) of CPR, Bernadette Miragliotta (Managing Counsel) at American Express Company and Richard Ziegler (Partner) at Jenner & Block, LLP (pictured in the order, from left to right below).

use webinar

Almost 400 people attended the session via webinar, and another several dozen in person at Jenner & Block’s New York offices. The discussion was extremely engaging as the moderator, Mr. Skulnik, steered panelists’ conversations around realistic hypotheticals with live polling and immediate feedback from the audience.

The session began discussing a mediator’s duty of confidentiality in private caucus. Mr. Ziegler stated, “An effective mediator must review with the parties exactly what the mediator can say in caucusing with the other side.” All the panelists agreed, adding that mediators must be tactful in their language conveying information to guard the confidentiality of each side.

In a discussion about whether mediators should suggest specific dollar amounts for offers or demands, Ms. Miragliotta stressed that this should be avoided as it is essential that parties feel like it is their mediation…that they own the process and the settlement. It is not beneficial for parties to feel rushed into an outcome over which they do not feel ownership, she added.

Another important consideration  discussed is that there is no single uniform body of law on mediation across the 50 states jurisdictions and federal jurisdiction, and only 12 jurisdictions have adopted the Uniform Mediation Act.

As Mr. Hanft explained, knowledge on the applicable law or the necessary “magic words” in a particular jurisdiction when enforcing a settlement or protecting confidentiality in a post-mediation dispute is paramount. He also offered practical guidelines to ensure a settlement is more likely to be enforced.

The panelists deliberated a range of other topics: the complexities of Attorney-Client Privilege and Work Product Doctrine in a mediation; post-mediation disputes that commonly arise including settlement enforcement; mediation confidentiality issues in malpractice or non-party disputes; and best practices for mediator and advocates, among others.

As Jenner & Block’s Ziegler summarized, “Confidentiality in mediation is not ironclad.”

The final takeaway? When in mediation, be mindful of not crossing ethical lines and not inadvertently waiving attorney client privilege or work product protection.

An audio stream of the panel discussion is available In CPR’s member’s only Resources Library HERE (you must be logged in to view).

Ecuador’s Plea for Mediation in the Assange Standoff

By Ginsey Varghese

In early January, Ecuador Foreign Minister Maria Fernanda Espinosa indicated interest in mediation by a “third country or personality” to resolve the asylum case of Julian Assange, the founder of WikiLeaks.

Assange has been living in Ecuador’s embassy in London since June 2012, avoiding extradition to Sweden on a rape charge. Paulina Dedaj, “Assange asylum ‘not stable,’ Ecuadorian embassy says,” Fox News (Jan. 9) (available at http://fxn.ws/2DX3Vaq).

The Swedes are no longer pursuing the case, but the United States still may want Assange extradited in connection with the WikiLeaks publication of U.S. military information.

Today, a U.K. court denied Assange’s request to invalidate the arrest warrant for him, after his lawyers argued that there was no need for extradition since the original charges in Sweden had been dropped.  “Julian Assange arrest warrant still stands, court rules,” BBC News (Feb. 6)(available at http://bbc.in/2GT7obb). The request was denied.

The BBC earlier reported that Assange’s current arrangement is unsustainable. “A person cannot live in those conditions forever,” Espinosa said. “Julian Assange: Ecuador seeks mediator in ‘unsustainable standoff,’” BBC News (Jan. 9) (available at http://bbc.in/2DZYc3S).

Assange earned notoriety in 2010 when WikiLeaks released confidential materials about U.S. military activity in Iraq and Afghanistan, which included helicopter video of civilians being killed in Iraq, diplomatic correspondence of underground negotiations and classified documents about the war in Afghanistan and Iraq. Liam Stack, Nick Cumming-Bruce & Madeleine Kruhly, “Julian Assange: A Legal History.”  N.Y. Times (Updated Jan. 26)(available at http://nyti.ms/2mZAywg).

There are rumors of a secret U.S. arrest and extradition warrant for his connection to exposing U.S. state secrets if he leaves the embassy. Maggy Ayala & Steven Erlanger, “Ecuador Gives Assange Citizenship Worsening Standoff with Britain.” N.Y. Times (Jan 11) (available at http://nyti.ms/2EzDfvk).

Assange fears prosecution by the United States, and British officials have not provided any assurances that he would not be extradited. Alexandra Valencia, “Ecuador says exploring mediation to solve Assange standoff,” Reuters (Jan. 9)(available at http://reut.rs/2DHNEpB).

CNN earlier reported that the British police maintain an arrest warrant for Assange because he jumped bail after the British Supreme Court denied his extradition appeal. Jason Hanna, “Swedish court refuses to revoke Julian Assange’s arrest warrant,” CNN (Nov. 20, 2014) (http://cnn.it/1r0v79Y). See also Ana Melgar, Jamie Grey, and Kara Fox, “WikiLeaks founder Julian Assange granted Ecuadorian citizenship,” CNN (Jan 11) (http://cnn.it/2D3H4wT).

Assange described the situation since his arrest as a “terrible injustice.” Robert Booth, “Julian Assange’s stay in London’s embassy untenable, says Ecuador,” Guardian (Jan. 9) (available at http://bit.ly/2CLUs4B).

When Ecuador initially granted asylum to Assange, he was viewed as a political hero by many for opposing “US imperialism”; but today, with his interference in the 2016 U.S. presidential election, Assange’s supporter base has shifted to “hard-right nationalists,” according to the Guardian‘s James Ball, “The only barrier to Julian Assange leaving Ecuador’s embassy is pride,” Guardian (Jan. 10)(available at http://bit.ly/2DguTtu).

Reuters earlier quoted Espinosa, who stated, “No solution can be reached without international cooperation and without cooperation from the United Kingdom.”

The Guardian noted that Assange’s lawyer appeared to welcome Ecuador’s mediation proposal, and emphasized that the U.K should “respect[] its human rights obligations and commitments to the United Nations.”

But UK government countered that Assange should leave the embassy and face justice.

The diplomatic standstill has only worsened with Ecuador’s grant of citizenship to Assange last month, a decision that Ecuador Foreign Minister Espinosa explained was made after careful review of Ecuador’s obligations under Ecuadorean law and international law, according to the New York Times.

Ecuador’s “mediation” pitch may be a route to resolution, but so far, the stalemate continues.

The author is a CPR Institute 2018 intern. She is a law student at Pepperdine University’s School of Law in Malibu, Calif.  

Dispute System Design: Advancing Predictability, Cost Savings and Efficiency In-house

erin
By Erin Gleason Alvarez

The problem with disputes is that they never go away.  Yes, they are resolved one by one – maybe even a group of them are settled at once.  But there are always more lurking: another claim, waiting to be filed; another complaint, making its way to your desk.  It’s a cycle and everyone knows that.

Many things in this dispute world are out of your control – or at least it feels that way.  Litigation costs money – sometimes lots of it.  It takes time – sometimes lots of that too.  Both of these things are hot commodities and less than ideal expenditures from a business perspective.  Thus, the pressure on the in-house attorney to manage risk, manage cost, settle, settle at the right cost at the right time… it’s always there.

If we know that there will most likely always be a disputes cycle, forever costing money and taking precious time, what is the best way to manage this and prevent logjams? There is an answer.

Dispute System Design

Perhaps it makes sense to take a cue from the business side of the house and view this dispute cycle as another business process to be mapped and managed.  At CPR, we’ve heard many stories affirming this strategy as a successful one, including my own experience in-house.

Nonetheless, year after year, in survey after survey – when in-house counsel voice their concerns over cost and efficiency – there is rarely a mention of dispute resolution systems.  For example, in the 2017 Litigation Trends Annual Survey produced by Norton Rose Fulbright, only 9% of corporate counsel reported that internal processes or controls for reducing the volume of litigation was an effective strategy; only 2% favor a regular risk mapping process.  Instead, a majority of corporate counsel responding to the survey rely on regular training programs for lawyers and early case assessment as effective ways to manage litigation.

What if you combine training + early case assessment + risk mapping + protocols?  Picture it: A coordinated system to resolve disputes, designed specifically to address the in-house concerns about spending too much money on litigation and wasting time that might be better spent elsewhere.

This is where “dispute system design” comes in.  Dispute system design is the process for identifying the trends and pain points in your dispute resolution/litigation practice, and then implementing process improvements along with measurements of your success.

How It Works

Here is a brief overview of what a dispute system design strategy entails:

  1. Conduct an assessment:  What’s vexing, trending, anticipated in your disputes portfolio?  This may be identified through surveys, interviews and data analysis.
  2. Process improvement:  What solutions can you identify to address these issues?  How is mediation being used – can it be done earlier?  What negotiation techniques are most relied upon?  How is arbitration handled?  Some cases must inevitably be routed to litigation – what is the best way for identifying them early?
  3. Implementation: How will you implement the strategies you have identified as most sensible for your work?  Training?  Metrics?  Employee evaluation? Changes to law firm relationships? Processes for identifying better mediators and arbitrators?
  4. Measure success: What criteria will you require to determine the level of success achieved?  Are you mainly concerned about saving litigation cost?  Cost associated with employee time? Case volume?  Settlement rate?  Or are there qualitative goals that should be considered as well, including employee job satisfaction and opening more opportunities for career growth?

Areas of Application

Just as systemic approaches to governance, compliance and contract management are well settled  corporate strategies, dispute system design and management is a practical way to manage exposure.  Bespoke litigation strategy will always have some role in the cycle.  But let’s face it:  Are most of your cases unique and deserving of their own individualized strategies and budgets?   Are the facts so  different that the analysis must be carefully tailored, time and again?  Sometimes.  Most of the time – probably not.

A dispute system design approach may be implemented to address your litigation portfolio, formalizing early case assessment measures, monitoring and reporting on their efficacy and helping to trigger other dispute resolution mechanisms where needed (e.g., direct negotiation processes, mediation, streamlined arbitration, etc.).

Dispute system design work may be applied in other contexts as well.  For example, many reports cite in-house concerns over the rise in cybersecurity disputes over the next year.  Analyzing your current cyber disputes portfolio, in order to develop methods for triage and settlement approach is one way to insert some predictability into an area that is causing a fair amount of anxiety in-house.  The same can be said for other areas of growing concern to in-house counsel: rising environmental concerns, the ever-present threat of mass disasters, and continued changes in health care – all of which are stressors on litigation budgets.  It is proactive to address these risks in a systematic way to enhance predictability, efficiency and cost controls.

Do You Need It?

In determining whether dispute system design is right for your organization, consider these factors:

  1. Are you currently satisfied with the length and cost involved in managing disputes?
  2. Have you identified any issues relating to dispute outcomes (in terms of quality, time to resolution, or expense required)?
  3. Are there any obvious issues that you can address to make your processes more efficient?
  4. Do you have the bandwidth or expertise to conduct this type of review for your company?
  5. What is the ROI in retaining someone to conduct the review for you?
  6. Would reporting on dispute resolution savings, or other efficiencies, be of value to the organization?

Conclusion

Dispute system design is an important function for in-house counsel to utilize in managing disputes in a systematic way.  A coordinated approach lends to predictability in dispositions, cost savings and many other efficiencies.

 

Erin Gleason Alvarez launched Gleason Alvarez ADR in 2017.  She formerly served as the Global Head of ADR Programs at AIG, where she designed dispute resolution systems and served as an advisor to state agencies in the development of mass disaster protocols following Hurricanes Irene, Ike, Sandy and mass claims resulting from wildfires fires in California. 

Erin now serves as a mediator and arbitrator in commercial and insurance disputes.  She also serves as a consultant to corporations and law firms in designing dispute resolution systems. 

 

Predispute Arbitration Would be Barred for Sex Harassment Claims Under Legislative Proposal

By Elena Gurevich

The Federal Arbitration Act is being targeted in Congress in a bill that seeks to ban predispute arbitration in matters involving sexual harassment.

Last month, Sen. Kirsten E. Gillibrand, D., N.Y., along with 13 co-sponsors., introduced U.S. Senate bill S-2203, titled “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

The act makes predispute arbitration agreements unenforceable for sex discrimination disputes.  It would put the responsibility for determining arbitrability on courts, not arbitrators.

The Dec. 6 proposal was immediately referred to the Committee on Health, Education, Labor, and Pensions.  It was introduced in the House by Rep. Cheri Bustos, D. Ill., on Dec. 26, with seven co-sponsors, and sent to the Judiciary Committee.

The act would amend United States Code Title 9—the FAA—by adding a new Chapter 4 “Arbitration of Sex Discrimination Disputes” at the end.

In a proposed Section 401, the legislation would define “predispute arbitration agreement” as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement,” and “sex discrimination dispute” as “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under title VII of the Civil Rights Act of 1964 [citation omitted] if the employment were employment by an employer [as defined in the act], regardless of whether a violation of such title VII is alleged.”

Proposed Section 402, on validity and enforceability, states that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute.”

According to a blog by employment attorneys at the law firm of Orrick, Herrington & Sutcliffe, if the act is passed into law, it “would not make employment arbitration agreements altogether unenforceable.” Joe Liburt, Allison Riechert Giese and Akasha Perez, “The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo,” Orrick Employment Law and Litigation blog (Dec. 14) (available at http://bit.ly/2rmpHSx).

The blog post notes that the proposal “would require employers and employees to litigate sexual harassment claims, while leaving unaffected all other arbitration-eligible claims.  This could potentially require employees who bring both harassment and non-harassment legal claims to litigate some claims in court while simultaneously submitting other claims to arbitrators.”

The proposed law, however, does not prohibit workers and employers from agreeing to arbitration after a dispute arises.

The Orrick blog notes that the legislative proposal “has a long journey” before it is signed into law, explaining that “the bill must be assigned to a committee for consideration, withstand debate” and “pass a vote.” The blog post predicts that it “could take months or even years to complete, if ever.”

A USA Today article notes that Congress also “is wrestling with incidents of sexual harassment,” referring to a resolution passed by the Senate that requires sexual harassment training for senators and staff.

The article discusses a bipartisan bill that was introduced in November that would “overhaul the congressional complaint process and provide better protections for accusers.” The article also notes that “other lawmakers are looking to reform the secret process lawmakers have used to settle numerous workplace harassment and discrimination claims.” See Jessica Guynn, “‘Enough is enough’: Gretchen Carlson says bill ending arbitration would break silence in sexual harassment cases,” USA Today (Dec. 6)(available at https://usat.ly/2ynUM6y).

Some companies already have taken action in the light of the proposed legislation. Last month, Microsoft became the first Fortune 100 company to support the bill. Microsoft President and Chief Legal Officer, Brad Smith, stated that the company should “act immediately and not wait for a new law to be passed.” Brad Smith, “Microsoft endorses Senate bill to address sexual harassment,” Microsoft blog (Dec. 19)(available at http://bit.ly/2mR65jR).

The author is a CPR intern.

How Far Can the Bench Go? The ABA on Judges’ Independent Research

By Elena Gurevich

Last month, the American Bar Association ABA Standing Committee on Ethics and Professional Responsibility, which develops model ethics standards for attorneys and judges, took on the judiciary’s use of the web in trial work.

The committee published Formal Opinion 478, “Independent Factual Research by Judges Via the Internet,” highlighting how “a vast amount of information available on the Internet exposes judges to potential ethical problems.” Released Dec. 8, the opinion is available at http://bit.ly/2mOetAr.

The formal opinion may have implications for alternative dispute resolution. It defines the term “judge” as “anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary.” See Model Code of Judicial Conduct, Application § I(B)(2011).

The question is whether it can be inferred that arbitrators fall into this category as well, subjecting their neutrals’ roles to the opinion’s rules.

The general rule, the opinion notes, is Model Code of Judicial Conduct Rule 2.9(C).  The rule states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” A comment to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”

In the opinion, the committee stresses a distinction between the “legislative facts”—defined as “general facts which help the tribunal decide questions of law and policy and discretion”—and “adjudicative facts,” which are facts “concerning  the immediate parties—who did what, where, when, how, and with what motive or intent.”

The opinion notes that “research of legislative facts does not raise the same due process concerns as research of adjudicative facts.”

The ABA provides guidelines in the opinion for independent Internet factual research by judges. These guidelines are designed to help judges decide whether to independently investigate facts on the Internet.

They include (1) assessing whether additional information is necessary to decide the case, and (2) whether the judge is corroborating or discrediting facts, or filling in factual gaps in the record—and, where, in the case adjudicative facts, it would be improper to do so.

But there is still a possibility that a judge can misjudge—pun intended—a situation when it comes to verifying sources. For example, a third guideline states that when a judge is “seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case . . . [then] the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books.”

A fourth and final guideline looks at a judge seeking background information about a party or subject matter of a case.

The question with these guidelines is what if, while doing research unrelated to a case, a judge stumbles upon and reads something that is related? The research might start as a need for a better understanding, but the moment a judge obtains that information it can affect his or her judgment.

The ABA underscores that the key inquiry for the judge is “whether the information to be gathered is of factual consequence in determining the case.”  The opinion, which illustrates its points with hypothetical examples, continues, “If it is, it must be subject to testing through the adversary process.”

The opinion also equates general background learning on the Internet to “attending judicial seminars or reading books”, but warns that it can be of service “so long as there is reason to believe the source is reliable.”

And here lies another problem: the definition of “reliable.” To different individuals, it is all a matter of perspective.  To some prominent judges, Wikipedia has been a reliable source. See, e.g., Lubavitch-Chabad of Illinois Inc. v. Northwestern Un., 772 F.3d 443 (2014)(7th Cir. 2014)(available at http://bit.ly/1xu1bZt).

For judges, the dangers are not only on the World Wide Web, but even in the court’s computerized records systems, where judges are essentially urged to rely on their skill and capability in order to get the search right. The committee quotes Illinois Judicial Ethics Opinion 2016-02, which cautions judges that

the particular judge’s competence to navigate the computerized court records is essential . . . only facts which are ‘not subject to reasonable dispute’ are the proper subject of judicial notice. The judge must be confident that his or her review will lead to accurate information. For example, indexes of computerized court records are likely to contain individuals with the same name; is the inquiring judge capable of finding the appropriate records and accurately matching them to the party in question? Judges must be aware of their own skills and, more importantly, their limitations.  . . . [Emphasis is in the opinion.]

The bottom line is that judges are walking a fine line every time they are taking on a case. After all, it is very easy to make a mistake when it’s only one click away.

The opinion also notes that Model Rule 2.9(D) requires judges to make sure the court staff and officials do not perform improper independent investigations.

The ABA’s website explains that the ABA Standing Committee on Ethics and Professional Responsibility “periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.”

ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct.

Formal Opinion 478 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions,” or directly at the link above.  For more analysis, see Debra Cassens Weiss, “May judges search the internet for facts? ABA ethics opinion sees problems,” ABA Journal (Dec. 8)(available at http://bit.ly/2DpkC1a).

The author is a CPR Institute intern.

In Memoriam: CPR Chairman Emeritus Charles Renfrew

By Russ Bleemer

The International Institute for Conflict Prevention and Dispute Resolution mourns the loss of Chairman Emeritus Charles B. Renfrew (pictured above), who died in San Francisco on Dec. 14 at age 89.

Renfrew had served nearly 15 years as board chairman when he stepped down from the post in 2011. He remained active with the organization and continued his longtime private practice focusing on mediation and arbitration, as well as corporate investigations.

He also had experience in a wide variety of specialized alternative dispute resolution processes, including early neutral evaluation and mini-trials, and acted as a special master.

“It is difficult to imagine a more impressive career than that of Charlie Renfrew,” said CPR President & CEO, Noah J. Hanft. “His commitment to public service was apparent to all who knew him, as was his commitment to the CPR Institute. CPR was indeed fortunate to have Charlie serve as its Chair for 15 years, and for far longer than that he was a clear and strong voice articulating the importance of CPR’s mission—continually seeking better ways to prevent and resolve disputes. Charlie was both a man of substance and a man of character with a warmth and kindness which was evident to all who knew him.  I will never forget that he was the first person to reach out to me after I was named CEO and his warm, supportive messages from that day forward. Charlie was a true gentleman and we will all miss him.”

Renfrew’s ADR work began during a storybook legal career that included private practice, in-house corporate representation and advocacy, the federal judiciary, and the U.S. Justice Department, as well as social activism.

A veteran who served both in the U.S. Navy in World War II and in the U.S. Army during the Korean conflict, Renfrew began his legal career at San Francisco’s Pillsbury, Madison & Sutro in 1956, becoming partner a decade later.

He departed the firm when President Richard Nixon appointed him to the U.S. District Court in California’s Northern District in 1972, where he stayed until President Jimmy Carter appointed Renfrew Assistant Attorney General under Benjamin Civiletti in 1980.

But when Carter was defeated by Ronald Reagan later the same year, Renfrew returned to Pillsbury.  After a two-year stint, he became Vice President of Legal Affairs for Chevron Inc., where, in 1988, he joined CPR’s board in 1988.

In 1993, Renfrew returned again to private practice as a partner at LeBoeuf, Lamb, Greene & MaCrae after retiring from Chevron.

After four years, he opened the Law Offices of Charles B. Renfrew in San Francisco, which became the longest-running job in his career, focusing on alternative dispute resolution.

In addition to his work at CPR, Renfrew served on the boards of Princeton University, Claremont University Center, the San Francisco Symphony, the San Francisco Museum of Modern Art, the NAACP Legal Defense and Education Fund, the Lawyers Committee for Civil Rights and the Council for Civic Unity. He also served as a director at Chevron.

Renfrew was active in bar associations and taught at Boalt Hall School of Law, University of California at Berkeley. He graduated with a BA from Princeton University, and from the University of Michigan Law School.

Renfrew was known for an unusual approach on the bench in the criminal cases he oversaw on the federal bench.  After sentencing, the judge would follow up on the convict’s service, and occasionally would visit the institutions to check on their rehabilitation progress.

Renfrew notably ordered specific sentences for community service as part of the condition of offenders’ release, to encourage reflection by the convict, and lower the odds of recidivism.  See Bob Egelko, “Charles Renfrew dies; Democrat appointed SF federal judge by Nixon,” San Francisco Chronicle (Dec. 26)(available at http://bit.ly/2m0ZbI7), and Carol Spiezio, Charles Renfrew, Former Federal Judge, Dies at 89,” The Recorder (Dec. 19)(available at http://bit.ly/2CGt7jQ).

Throughout his career, Renfrew spoke and wrote often about his deep faith in the effectiveness of alternative dispute resolution, and his expectations for its continued growth.  He frequently cited mediation and arbitration’s success as the core reason for his decades of work at the CPR Institute.

Renfrew was nearly evangelical at CPR meetings and in articles in his focus on developing ADR, and creating opportunities for its growth and improvement. During his years on the CPR board, he spearheaded the organization’s emphasis on international work, and measures to prevent conflicts, among numerous other conflict resolution efforts.

In a 2009 Alternatives article reflecting on CPR’s 30th anniversary, Renfrew, with his characteristic optimism about conflict resolution, and also characteristically looking ahead, concluded,

The future for the CPR Institute is promising, too, if we continue to build on our strengths and uniqueness. We must continue to involve the users of ADR services, not just be an organization of ADR providers. If CPR continues to be supported by those who recognize its unique role in the ADR movement, it will continue to flourish and perform the leadership role it has since its inception.

Renfrew is survived by his wife, Barbara Jones Renfrew, who often joined her husband at CPR Annual Meetings and events, as well as eight children, 21 grandchildren and two great-grandchildren.

A memorial service was held in San Francisco on Jan. 6.  The family suggested donations in his name to the NAACP Legal Defense Fund, where he also served as a board member.

 

*Russ Bleemer is the editor of CPR’s award-winning magazine, Alternatives

Court Backs Award for Class Arbitration, Refusing to Wait for Supreme Court’s Decision

By Shravanthi Suresh-Silver

A recent Wisconsin federal trial court decision backs confirmation of an arbitration award even though the defendant asked for it to be stayed until the class waivers-arbitration cases currently before the U.S. Supreme Court are decided.

The arbitrator in the case had backed a class arbitration process on behalf of employees, who said that the defendant, Waterstone Mortgage Corp., a Pewaukee, Wis.-based lender, failed to pay its loan officers overtime.

The three consolidated cases on waivers that ban class processes in favor of mandatory individual arbitration were argued together in the Supreme Court on Oct. 2. A decision on the relationship between the Federal Arbitration Act and the National Labor Relations Act is expected soon.

In Herrington v. Waterstone Mortgage Corp., No. 11-cv-779-bbc (U.S.W.D Dec. 4)(available at http://bit.ly/2BgULTT), U.S. District Court Senior Judge Barbara B. Crabb, based in Madison, Wis., concluded that plaintiff’s claims would have to be resolved through arbitration under the parties’ agreement, and that the NLRA gave the plaintiff the right to join other employees in her case.

Herrington also is notable because the court rejected an arbitrator bias argument and addressed claims that the arbitrator, former Second U.S. Circuit Court of Appeals Judge George Pratt, slept through key proceedings.

Plaintiff Herrington commenced arbitration on March 23, 2012, under her employment contract. Arbitrator Pratt issued an order determining that the arbitration could proceed as a collective action. Ultimately, the Wisconsin federal court opinion by Senior Judge Crabb notes, 174 class members opted into the arbitration.

On July 5, 2017, Pratt issued a final decision, holding that Waterstone was liable under the Fair Labor Standards Act for unpaid minimum wages and overtime and attorney fees and costs, but not liable under Wisconsin statutory or contract law. He ordered Waterstone to pay nearly $7.3 million in damages; $3.3 million in attorney fees and costs and an incentive fee of $20,000 to be paid to Herrington.

The plaintiff moved for confirmation of the award under 9 U.S.C. § 9 in the Wisconsin federal court, while the mortgage company moved to vacate or modify the award, asking Senior Judge Bragg to stay any action relating to the award until the U.S. Supreme Court reaches a decision in the consolidated cases of Ernst & Young LLP v. Morris; Epic Systems Corp. v. Lewis, and NLRB v. Murphy Oil USA Inc. (For more information on the cases, see CPR Speaks at http://bit.ly/2yWjWuf.). In the cases, the Court is considering whether class and collective action waivers in arbitration agreements violate the National Labor Relations Act.

The plaintiff countered by asking for sanctions against the defendant lender, arguing that the objections to the award’s confirmation were frivolous.

The court denied the defendant’s motions to stay and to vacate the arbitration award, as well as Herrington’s sanctions motion. The court confirmed the arbitration award, with one modification to correct the mathematical error identified by both parties.

In arguing to stay any action relating to the award until the Supreme Court reaches its decision in the consolidated cases, Waterstone suggested that if the Supreme Court concludes that class and collective action waivers do not violate the National Labor Relations Act, the defendant will be able to rely on that decision to file a motion under Federal Rule of Civil Procedure 60(b)(6) challenging Bragg’s March 2012 decision in the case striking the class waiver in the company’s employment agreement.

In noting that the defendant’s assumption was flawed, the Wisconsin court reemphasized that “a change in law showing that a previous judgment may have been incorrect is not an ‘extraordinary circumstance’ justifying relief under Rule 60(b)(6).” (Quoting Nash v. Hepp, 740 F.3d 1075, 1078 (7th Cir. 2014)(“Rule 60(b) cannot be used to reopen the judgment in a civil case just because later authority shows that the judgment may have been incorrect.” (Internal citation omitted.)), Bragg noted in her opinion that the defendant “made no attempt to explain why a change in the law would justify reconsideration of a decision made in this case five years ago.”

The court also noted that the ultimate decision allowing the case to proceed on a collective basis was made by Arbitrator Pratt, not the court. Bragg noted that Pratt said he was bound by her finding that the class waiver provision was invalid under the National Labor Relations Act.

But the opinion also says that Pratt found the employment agreement’s arbitration clause was ambiguous. Despite the waiver, he noted, the clause also stated that arbitration should proceed “in accordance with the rules of the American Arbitration Association,” which permits class arbitration.

The arbitrator noted that the defendant “at the very least created an ambiguity, which must be construed against [Waterstone,] the party who drafted the Agreement.”

The opinion says that the arbitrator “also noted plaintiff’s argument that the language of the so-called ‘waiver’ clause should actually be read as permitting class or collective arbitration, rather than prohibiting it, though the arbitrator chose not to resolve that dispute.”

Wrote Senior Judge Bragg,

In other words, the arbitrator’s discussion suggests that he believed there were independent bases for permitting collective arbitration, aside from this court’s previous decision. Thus, it is far from clear that the Supreme Court’s decision . . . would cause the arbitrator to change his decision to permit collective arbitration.

The court also stated that the case had been pending since 2011 and that it was not at an early stage. It was noted that a further delay would prejudice the plaintiff, who had been waiting several years through numerous delays to recover unpaid wages.

Additionally, despite the defendant’s assertion that a stay would “greatly simplify the issues and reduce the burden of litigation,” Bragg wrote that she was not persuaded that the Supreme Court’s decision will necessarily simplify the issues in this case, however it rules.

There were other significant issues. The defendant argued that Arbitrator Pratt “demonstrated bias in favor of plaintiff when he sent a survey to potential class members as part of his decision whether to certify a class.” The defendant stated that when the survey was submitted, discovery on class certification was closed and the arbitrator had said that the plaintiff’s evidence supporting class certification was insufficient.

Additionally, Waterstone argued that the phrasing of the survey was biased in favor of plaintiff.

But Bragg dismissed the bias claims.  She held that “there is nothing about the arbitrator’s decision to send out the survey and consider the responses that suggests bias in favor of plaintiff or against defendant.” The inquiries, the opinion noted, were “simply ‘yes’ and ‘no’ questions regarding the experiences of putative class members.”

Furthermore, the arbitrator permitted the parties to argue and brief their views regarding the survey, “and issued a written decision explaining his reasons for considering the results.” Pratt “later issued a well-reasoned 16-page written decision on class certification,” Bragg noted in her opinion, “explaining the survey results and his conclusion that the results supported class certification.”

Finally, the arbitrator was clear that he understood the evidentiary limitations of the survey results. Therefore, the court dismissed the defendant’s allegations of arbitrator bias.

The defendant also argued that the award should be vacated because Arbitrator Pratt “slept through portions of the evidentiary hearing,” the opinion says.

Waterstone argued that the arbitrator’s “alleged sleeping amounts to abdication of his duties and qualifies as misconduct sufficient to justify vacating the arbitration award,” the opinion says.

Senior Judge Bragg said she agreed with Plaintiff Herrington that if the defense believed Pratt slept during the hearing, it should have asked for a break. The court noted that there appeared to be a factual dispute regarding whether Pratt dozed. “To raise this issue now seems far too late,” the opinion says.

Bragg emphasized that even if the arbitrator dozed off, the defendant “had pointed to nothing suggesting that the arbitrator was prejudiced by the alleged napping.” While Waterstone claimed that Pratt slept during important testimony, it failed to identify any specific testimony that he missed.

In dismissing the defendant’s motion that the arbitration award should be vacated, the court noted that the defendant’s arguments about prejudice are based entirely on speculation.

* * *

The author is a CPR intern.

US Dist Ct Upholds Summary Disposition in Arbitration

Kantor Photo (8-2012)By Mark Kantor

Arbitrators and counsel often wonder whether summary disposition of an arbitral dispute is consistent with the requirements of applicable arbitration law and rules.  In Weirton Medical Center, Inc. v. Community Health Systems, Inc., N.D. West Virginia (Civ. Action No. 5:15CV132, Dec. 12, 2017) (available here – https://scholar.google.com/scholar_case?case=4968969295311804275&hl=en&lr=lang_en&as_sdt=20003&as_vis=1&oi=scholaralrt), Judge Frederick Stamp of the US District Court for the Northern District of West Virginia upheld last week an arbitration award on summary disposition issued under the 2009 AAA Commercial Arbitration Rules against an attack on grounds that summary disposition of the dispute without discovery and an evidentiary hearing was improper.  The District Court instead concluded that “that the arbitrator’s procedural determination that summary disposition was appropriate has a reasonable basis in the parties’ agreements. Accordingly, the arbitrator did not exceed his powers in disposing of the arbitration on summary disposition.”

Judge Stamp’s opinion involves a number of interesting issues, including collateral estoppel.  But for purposes of this post I focus only on the authority of the arbitrator to make a summary disposition.  The situation was complicated by the fact that there were two arbitration agreements.  Each contract referred to the then-current version of the AAA Commercial Arbitration Rules (i.e., the 2009 Rules).  But one also referred to the “substantive and procedural laws of the State of Tennessee applicable to contracts made and to be performed therein” and the other referred to the “substantive and procedural laws of the State of West Virginia applicable to contracts made and to be performed therein” (footnotes and many citations omitted below).

The Interim CFO agreement invokes the “substantive and procedural laws of the State of Tennessee applicable to contracts made and to be performed therein,” … the Turnaround Agreement invokes the “substantive and procedural laws of the State of West Virginia applicable to contracts made and to be performed therein,” … and both agreements invoke the “arbitration rules of the American Arbitration Association (“AAA”) in effect on the date of” the agreements.

The claimant in the arbitration, Weirton, found its claim summarily dismissed in arbitration on statute of limitation grounds.   Weirton argued both before the arbitrator and later in the District Court that the procedural laws of Tennessee and West Virginia prohibited summary dispositions in the circumstances.  By operation of the arbitration agreements, thus asserted Weirton, the arbitrator was bound to follow those laws and deny summary disposition.  The arbitrator concluded, however, that the arbitration agreements were subject for procedural issues to the AAA Commercial Arbitration Rules and that summary disposition was proper.  The arbitrator then dismissed Weirton’s claims “as a matter of law” as time-barred by the applicable statute of limitation.  Weirton thereafter sought to vacate that award on grounds that the arbitrator exceeded his powers and manifestly disregarded applicable law in so ruling.

Weirton argues that the arbitrator exceeded his powers by granting summary disposition rather than permitting discovery and holding a hearing. It argues that the arbitration agreements, the AAA Rules, and West Virginia and Tennessee’s Rules of Civil Procedure did not permit summary disposition. Further, Weirton argues that summary disposition was premature because no discovery had been conducted and factual disputes were evident.

Weirton made these same arguments before the arbitrator, and he rejected them. The arbitrator expressly concluded that the 2009 AAA rules provided him “discretion to hear and grant motions for summary disposition.” …. He concluded that summary disposition was not premature and that Weirton was not entitled to discovery because “the asserted claims fail as a matter of law.” …. The arbitrator also implicitly determined that this matter was governed by the AAA rules and not the Rules of Civil Procedure of Tennessee or West Virginia.

The District Court began its analysis of this issue by observing that US courts will not question an arbitrator’s decision on procedural issues “so long as it has some reasonable basis in the parties’ agreement.”

It is well settled that an arbitrator has jurisdiction to “adopt such procedures as are necessary to give effect to the parties’ agreement” and that “`procedural’ questions which grow out of the dispute and bear on its final disposition are presumptively. . . for an arbitrator[] to decide.” . Thus, an arbitrator is empowered to make a determination on procedural issues, and courts will not question that determination so long as it has some reasonable basis in the parties’ agreement.

The arbitration agreements provided for a situs in those jurisdictions, thereby (said Weirton) importing the procedural rules of those locales in any event.  According to the petitioner, the procedural laws of the two States “require full discovery and a full evidentiary hearing.”  Weirton also contended that the references in the contracts to the procedural law of Tennessee and West Virginia, respectively, imported the civil procedure rules of those States.  However, according to the Court, “[t]he arbitrator implicitly concluded that the AAA rules rather than West Virginia or Tennessee’s Rules of Civil Procedure applied to determine whether summary disposition was proper.”  That conclusion, said the Judge, had “a reasonable basis in the parties’ agreements.”  Therefore, the arbitrator’s conclusion was proper.

To that end, Weirton argues that the arbitration agreements do not provide authority to dispose of the case on summary disposition. Both arbitration agreements contain substantially identical language. Each provides for binding arbitration of any dispute arising out of or relating to the Interim CFO Agreement or the Turnaround Agreement, both invoke the 2009 AAA rules, both require a written and reasoned award, and both contain choice of law provisions. The Interim CFO Agreement provides for arbitration in Brentwood, Tennessee and for the application of Tennessee law. The Turnaround Agreement provides for arbitration in Pittsburgh, Pennsylvania and for the application of West Virginia law.

First, Weirton argues that, because the arbitration agreements provide for binding arbitration at particular locations, the parties intended to require full discovery and a full evidentiary hearing. It also argues that the arbitration agreements invoke the AAA rules and the procedural laws of Tennessee and West Virginia, none of which allow for summary disposition without an opportunity for discovery.

Second, Weirton argues that the arbitrator was obligated to apply West Virginia and Tennessee’s Rules of Civil Procedure, which, Weirton argues, would not have permitted summary disposition without adequate discovery. The arbitrator implicitly concluded that the AAA rules rather than West Virginia or Tennessee’s Rules of Civil Procedure applied to determine whether summary disposition was proper. This Court finds the arbitrator’s conclusion to have a reasonable basis in the parties’ agreements.

Reasoning in a manner that gave effect to the arbitrator’s authority to resolve ambiguities and to to respect the function of arbitration, rather than a textual analysis of the contracts, the Court held that these agreements made clear that “the AAA rules governed procedural matters in the arbitration … [and] application of those States’ Rules of Civil Procedure in an arbitration proceeding would be wrong….”

Read as a whole, these agreements make clear that the AAA rules governed procedural matters in the arbitration, while Tennessee and West Virginia law governed the substantive legal issues. Although the choice of law provisions provide that the states’ procedural law applicable to contracts was to be applied, application of those States’ Rules of Civil Procedure in an arbitration proceeding would be wrong, especially in light of the express invocations of the AAA rules.  At best, these choice of law and procedural rules provisions create ambiguity as to what procedural law applied, a determination well within the arbitrator’s jurisdiction. The arbitrator’s decision to apply the AAA rules rather than the States’ Rules of Civil Procedure has a reasonable basis in the parties’ agreements. Thus, the arbitrator’s determination that summary disposition was procedurally proper is entitled to deference.

Judge Stamp also rejected the notion that designating a location for the arbitration had the effect of importing that locales’ judicial procedure rules.

Weirton argues that the arbitration agreements required discovery and full evidentiary hearings because they specified the locations for such hearings. However, these designations of sites for arbitration hearings are not equivalent to express requirements that the parties conduct discovery and participate in a full evidentiary hearing on claims that fail as a matter of law.

Interestingly, the Court found authority for arbitral summary judgment in Rule L-4 of the Large, Complex Commercial Case Procedures of the AAA Commercial Arbitration Rules.  Rule L-4 only states generally that arbitrators may “take such steps as they may deem necessary or desirable to avoid delay and to achieve a just, speedy and cost-effective resolution of Large, Complex Commercial Cases.”  Notably, the 2009 AAA Commercial Arbitration Rules did not include a provision expressly referring to summary dispositions, unlike Rule R-33 of the current 2013 version of those Rules which does conditionally authorize dispositive motions (“R-33.  Dispositive Motions.  The arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case.”).

While the arbitration agreements do not expressly permit summary disposition, they do not expressly prohibit it either. The agreements invoke the 2009 AAA rules, which provide a set of procedural rules including requiring arbitrators to “take such steps as they may deem necessary or desirable to avoid delay and to achieve a just, speedy and cost-effective resolution of Large, Complex Commercial Cases.” Rule L-4, AAA Commercial Arbitration Rules and Mediation Procedures (2009 ed.).

Perhaps sensing that he was relying only general authority under the Rules, Judge Stamp also buttressed his conclusion by asserting that result was consistent in any event with the civil procedure rules of the two states (“Further, the Rules of Civil Procedure of Tennessee and West Virginia allow for the dismissal of or summary judgment on legally insufficient claims.”).  At bottom, though, the District Court applied a deferential standard of review to the arbitrator’s decision that he had authority under the 2009 AAA Commercial Arbitration Rules to grant summary disposition.

As discussed above, the arbitrator implicitly concluded that the AAA rules rather than the States’ Rules of Civil Procedure applied to the arbitration. This was a procedural matter to be determined by the arbitrator, and this Court will defer to that ruling because it has some reasonable basis in the parties’ agreements. …. Thus, because Tennessee and West Virginia’s Rules of Civil Procedure did not apply to the issue of whether summary disposition was proper, the arbitrator did not manifestly disregard those laws.

The Weirton case therefore stands for the propositions that (1) an arbitrator’s decision to apply arbitration rules rather than a local civil procedure code will prevail even if the underlying agreements refer to local procedural law, so long as the arbitrator reasonably found ambiguity in that contractual language, and (2) authority for dispositive motions in arbitration can be found in general language of the AAA Commercial Arbitration Rules, even in the absence of specific reference to summary dispositions in the applicable Rules (“While the arbitration agreements do not expressly permit summary disposition, they do not expressly prohibit it either.”).

We will have to see if this ruling is appealed to the US Circuit Court of Appeals in due course.

Mark Kantor is a CPR Distinguished Neutral and a regular contributor to CPR Speaks. Until he retired from Milbank, Tweed, Hadley & McCloy, Mark was a partner in the Corporate and Project Finance Groups of the Firm. He currently serves as an arbitrator and mediator. He teaches as an Adjunct Professor at the Georgetown University Law Center (Recipient, Fahy Award for Outstanding Adjunct Professor). Additionally, Mr. Kantor is Editor-in-Chief of the online journal Transnational Dispute Management.

“New and Improved New Year’s Resolutions” For Judges, Politicians and Policy-Makers

By Judge Steven I. Platt (Ret.)

steven_125
As the new year approaches, I welcome the opportunity in this space provided by The Daily Record, to reflect on the last almost 11 years since I “retired” as a full-time judge and entered a very different world of Private ADR, consulting, as well as public speaking, lecturing and teaching for diverse organizations. I have also been lucky enough and honored, during that time, to have been approved by the Court of Appeals to be recalled as a Judge and have done so enthusiastically and learned even more with the added perspective of my other work and experience incorporated into my decision making.

That said—and with I hope the proper degree of humility, as well as a recognition that our hopes and dreams should not be born out of naiveté or unrealistic expectations for ourselves, the three branches of government, or, for that matter, the human race—I offer the following, hopefully improved over previous years, based on new experiences and additional perspectives, suggested 2018 New Year’s Resolutions for Judges, Politicians and Policy-Makers:

1 – Don’t refuse to reference reality when you make personal, political, legal, and even medical decisions. You can aid that process by listening and paying attention to people and ideas with which you do not agree, in lieu of reinforcing or restricting your sights and sounds to those pictures and words which reinforce your previously held views.

2 – Don’t even try to defend the indefensible. It won’t work.

3 – Recognize that isolating yourself, your community and even your country—if you are a President, Governor, Legislator, political or community leader, policy-maker, or even a Judge—will not make the complexity of an increasingly complicated world go away. On the contrary, it will make your decision-making progressively more flawed and exponentially more dangerous to you and those affected by your self-inflicted defective judgement.

4 – Recognize that the choices which you desire are usually not the options that reality dictates that you must choose from. Wishing otherwise won’t change that reality.

5 – Don’t insist that “the other side” accept and subscribe to your perception of reality as a pre-condition to further communication, whether that “other side” is competing with you or is attempting to collaborate with you. Better to analyze and address your counterparts’ interests in the context of their reality if you wish to move your idea or process forward.

6 – If you are trying to persuade a third party of the merits or wisdom of your position on an issue—whether that third party is a jury, judge, the voters of a federal, state, or municipal district or the elected or appointed officials put there by the voters to decide your fate or your client’s fate—do not forget or ignore who those person(s) are and the intellectual world they live in. To do so will be fatal to your cause.

7 – Be intellectually curious if it is within your DNA to be so. If it is not, check with the best and the brightest in the medical profession to arrange a transfusion of DNA from a known intellectually curious person. Your life will be much more interesting and fulfilling.

8 – Recognize that there are many “Monuments to Persistence” whose success in whatever professional, business, personal field they chose was, in large part, the result of their persistence. Persistence in the pursuit of a good idea is worth emulating.My favorite illustration of this came from my now deceased friend and mentor, the first Chief Judge of The District Court of Maryland, Robert F. Sweeney, who in an interview upon his retirement, reflected upon what it took to accomplish what Governor Mandel had described as a “gargantuan task” – the creation and implementation of a new Court, The District Court of Maryland.

On May 5, 1971, as he was sworn in as the first Chief Judge and at the time the only Judge of The District Court, Chief Judge Sweeney said “Insofar as I am able, I shall attempt to make this court what the people of Maryland are entitled to have it be: A Court of integrity and a forum in which the personal and the property rights of all citizens can be freely and fairly adjudicated by judges learn in the law—judges who are dedicated to the principle of equal justice under the law for all.”

Upon his retirement, virtually a quarter of a century later, illustrating the wisdom and concomitant success of persistently confronting the reality of a corrupt culture in accomplishing that goal, Chief Judge Sweeney recounted that experience as follows: “There were judges who were racists, who had alcohol problems, who were wife beaters and who thought they had found the greatest 10-2 job in the world. I outlived the bastards. The whole collection of them.”

The moral of this story is obvious. The Monument is the District Court of Maryland!

9 – Share in the optimism of Bernard Baruch, an advisor to four Presidents, about the future based on his faith “in the power of the human mind to cope with the problems of life.” Share in his conclusion after a lifetime of advising Presidents that “To nothing so much as the abandonment of reason does humanity owe its sorrows.” We should therefore heed the warning based on history and experience that our failures as individuals and communities have been, and will be the consequences of “action without thought” which usually follows thoughts unaccompanied and therefore devoid of analysis.

10 – Believe, as did Bernard Baruch, that our society can in fact solve our problems by placing our trust in the unfettered intellect, reason, wisdom, and compassion of smart individuals not in crowds.

 

I would footnote these updated suggested “New Year’s Resolutions” with the following afterthought based on my continued observations of all three branches of government and the politics, economics and psychology which drives them: The collective blogosphere, talk radio, cable TV, internet and advocacy groups, politicians, and other public figures—whether they claim omniscience, heavenly blessings or other supernatural powers or origins—do not address any reality except their own. That said, let’s try analytics in 2018. We might like it. In any case, Happy New Year!

This post is reprinted with permission from “A Pursuit of Justice,” a blog by Judge Steven I. Platt (Ret.) that focuses on the intersection of law, economics, politics and the development of public policy.  Judge Platt currently owns and operates his own private Alternative Dispute Resolution Company, The Platt Group, Inc. through which several retired judges and experienced practitioners offer mediation, arbitration and neutral case evaluation services to business, governmental agencies and their lawyers mostly in complex litigation and disputes.  Judge Platt’s experience and vocation make him an expert in conflict resolution particularly in complex disputes whether they are political, economic, legal, or as most often the case all of the above. Judge Platt can be reached at info@apursuitofjustice.com or via his website at www.theplattgroup.com.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of CPR.