CPR’s new website now hosts the CPR Speaks blog. You can find new posts, at https://www.cpradr.org/news/cpr-speaks.
ACC’s Tori Payne on Measuring Diversity Efforts
By Cenadra Gopala-Foster
On Oct. 3, the CPR National Task Force on Diversity in ADR hosted Association of Corporate Counsel Vice President and Chief Membership Officer Tori Payne. She led a presentation on the ACC Foundation Diversity, Equity & Inclusion Maturity Model.
As described by Payne, the model is a living, evolving tool designed for use by legal departments. It outlines clear descriptions for three levels of DEI maturity–“early,” “intermediate,” and “advanced.”
For example, progress throughout the three levels for “governance and resourcing,” policies entail moving from the early stage of having little to no consistent policies incorporating an anti-racism or DEI message toward an intermediate level where the company adopts basic governance models with clear distinctions between policy-planning formulation and execution, closing the gaps between policies and practices, and monitoring identified goals and objectives.
At the final, a “mature” level, policies and projects operate with a consistent feedback loop using a cross-section of functional stakeholders, with diversity and equity resources–including budget–committed to the function. DEI also continues to develop in these mature settings–see below.
The ACC’s main concern for the model was practicability, reported Payne, so the in-depth descriptions can aid DEI efforts and gauge where improvements are needed.
The DEI Maturity Model was jointly developed by ACC and the ACC Foundation, in consultation with an advisory committee of DEI leaders from the legal and business communities who are responsible for advancing DEI results at their organizations. The tool derived from ACC’s recognition that law firms and in-house companies’ were challenged to assess the effectiveness of their DEI efforts without clear indicia for progress and success. The model provides business leaders with a critical snapshot of where their departments are currently and a roadmap on achieving future goals.
For example, in 2011, 11.7% of lawyers identified as people of color; a decade later in 2021, it has rose only 3% to 14.6%. Payne said she hopes this tool will give company leadership the insight to improve diversity efforts.
Throughout Payne’s presentation, she reaffirmed the importance of metrics, and how essential they are for DEI efforts. Metrics will help DEI efforts to measure progress, which will in turn affect future budgetary decisions. The ACC, she said, intends for this model to continue to be refined and improved based on the valuable feedback from those who use it.
Both CPR and the ACC recognize that diversity pledges can serve an important educational and consciousness-raising function. Payne expressed support for CPR’s Diversity Commitment-Ray Corollary Initiative. She further noted that the maturity model would aid companies who sign the CPR Pledge in creating additional policies and supportive mechanisms that will increase the nomination and selection of diverse neutrals. She stressed the need for companies to work only with provider firms that mandate all neutral requests, including diverse individuals.
CPR has taken a step toward encouraging diversity with a new Diversity Commitment Clause, which can be used by companies in their contract’s arbitration agreements. The clause was revised in the summer. It states that “[t]he parties agree that however the arbitrators are designated or selected, at least one member of any tribunal of three arbitrators shall be a member of a diverse group, such as women, persons of color, members of the LGBTQ community, disabled persons, or as otherwise agreed to by the parties to this Agreement at any time prior to appointment of the tribunal.”
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The author is 2022-2023 CPR Intern under CPR’s consortium agreement with Washington, D.C.’s Howard University School of Law, where she is a second-year student.
CPR Council Meeting: Abraham Lincoln and Dispute Resolution
By Xin Judy Wang
The June 22 CPR Council meeting featured a presentation on Abraham Lincoln and dispute resolution by the International Institute for Conflict Prevention & Resolution’s former CEO & President Thomas J. Stipanowich, the William H. Webster Chair in Dispute Resolution and a law professor at the Straus Institute at Pepperdine University’s Caruso School of Law in Malibu, Calif.
He served as CPR’s president and CEO from 2001 to 2006, and returned to discuss his project, “The Lincoln Way: Abraham Lincoln as a Problem Solver and Manager of Conflict.”
Stipanowich began his presentation discussing the United States’ fascination with Lincoln, the 16th president. Possibly the nation’s most familiar historical figure along with George Washington, Lincoln lived one of the most documented and written-about lives from the nineteenth century. Almost everyone feels some level of familiarity with Lincoln, attaching him to particular principles, life experiences, or lifestyles. Lincoln was also a self-taught lawyer who worked on a broad spectrum of cases ranging from pig-stealing incidents to representation of railroads.
Stipanowich said he was attracted to Lincoln’s legacy through a telling quote: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” The quote came from Lincoln’s lectures to fellow lawyers around 1850, many of whom were trial attorneys.
From this quote, Stipanowich saw a striking similarity between Lincoln’s peacemaking spirit and CPR’s mission to reduce conflict to enable purpose.
As Stipanowich’s project title suggests, Lincoln was a lifelong problem solver and a conflict manager.
Lawyer Lincoln encouraged fellow trial lawyers to discourage litigation and always sought ways to resolve conflict out of the courtroom to avoid the often-unsatisfactory result through trials. Stipanowich found evidence that Lincoln was an informal mediator and had served as an arbitrator. Once, he organized a minitrial with a judge outside the court, with the judge rendering a nonbinding decision that settled a dispute without going to trial.
Stipanowich found Lincoln recognizing that, especially for reputational conflict–a popular type of suit at the time–going to trial is not the best way, whether one is representing the plaintiff or the defendant. It was better to reach a negotiated settlement privately.
As a politician, Abraham Lincoln navigated across party lines to achieve resolutions in the context of a mega-negotiation to address every stakeholder group. He had contacts in different parts of the country, reaching out to border states and southern politicians. It was his awareness of changing circumstances that led to his campaign leading to the Emancipation Proclamation. The African American community’s support was critical for restoring the union as a growingly important constituency and a necessary force in the military.
As an individual, Lincoln wrestled with internal conflict on self-image, religion, and relationships. Stipanowich found Lincoln to be tremendously influenced by reading the autobiography of Ben Franklin as a teenager, thus developing an enduring rationalist spirit. Lincoln was clear in his mission and ambition: “Every man is said to have his peculiar ambition. Whether it be true or not, I can say for one that I have no other so great as that of being truly esteemed of my fellow men, by rendering myself worthy of their esteem.” In pursuit of such honor and respect, Lincoln wrestled with depression, a broken engagement, and an avoided duel.
Through navigating conflicts and periods of crisis stemming from his internal and external conflicts, Lincoln built and rebuilt a transformational leadership. Lincoln’s rational, problem-solving spirit is just as relevant today for lawyers, corporations, and interested parties. In Stipanowich’s 2009 article, “Lincoln’s Lessons for Lawyers,” he summarized Lincoln’s legal practice principles:
- Use litigation as a last resort—and be frank with your client about its costs and risks.
- Try to be objective in assessing your client’s case; avoid “irrational optimism.”
- Begin negotiating cooperatively and encourage the reliance of others by behaving in a logical and predictable way. Look for trade‐offs.
- Seek creative ways of bridging the gap to an agreement that achieves a client’s key goals and priorities in a simple, straightforward manner.
- Do not place your own financial interests or ego above the interests of the client.
Thomas, Stipanowich, “Lincoln’s Lessons for Lawyers” Dispute Resolution Magazine 18 (Feb. 1, 2010) (available at https://bit.ly/3INyalO).
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The CPR Council, the governance body of the CPR Institute, promotes the practice of more efficient and effective dispute prevention and resolution. It oversees the development of dispute management resources and tools. The Council’s web page is available at www.cpradr.org/about/cpr-council.
In addition to Tom Stipanowich’s presentation, the June 22 Council meeting also discussed the updated Council Charter, new Council programming, CPR Dispute Resolution Panelists, CPR’s new Immediation Platform for dispute resolution services, and the revised CPR Diversity Commitment. The meeting concluded with a networking session.
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The author, who will be a second-year student at Columbia University Law School in New York this fall, is a 2022 CPR summer intern.
Government Support: Task Force Meeting Covers ADR’s Reach into Federal Agencies
By Katerina Karamousalidou
A CPR Government & ADR Task Force meeting last month focused on the U.S. government’s executive branch alternative dispute resolution use. The participants, who included authors of a recent federal government ADR study, described ADR use and emphasized the need for support and assessments of the effectiveness of the processes used to negotiate and settle.
The April 19 meeting started with an introduction from CPR Senior Vice-President Ellen Parker, who explained that the Task Force’s mission is to educate companies, law firms, and government agencies and their attorneys on the laws and the specific requirements for engaging in ADR with target government agencies.
The Task Force comprises leading practitioners, corporate counsel, neutrals, academics, and current and former federal government employees, including ADR specialists and dispute resolution directors. Parker introduced the Committee chair, Pete Swanson, Director of the Office of Conflict Management and Prevention at the Federal Mediation and Conciliation Service, a 75-year-old independent Washington, D.C., agency whose mission is to preserve and promote labor-management peace and cooperation.
Swanson, together with Jeremy Graboyes, Director of Public and Interagency Programs at the Administrative Conference of the United States, an independent federal agency whose statutory mission is to identify ways to improve the procedures by which federal agencies protect the public interest and determine the rights, privileges, and obligations of private persons.
They dove into ACUS’s history and the work it has been doing in promoting ADR use by federal agencies. Swanson and Graboyes were joined by University of Nebraska College of Law Prof. Kristen M. Blankley, of Lincoln, Neb., and Mediator Judith Starr, who heads ADR consulting firm Starr ADR in Palmetto, Fla. Blankley and Starr are co-authors of a consulting report on ACUS’s work, “Alternative Dispute Resolution in Agency Administrative Programs with the Administrative Conference of the United States” (Dec. 17, 2021) (available at https://bit.ly/38Vaeii).
Jeremy Graboyes set the stage by explaining ACUS’s mission in promoting effective public participation in the regulatory process by reducing unnecessary litigation and improving the use of science and the effectiveness of applicable laws.
He emphasized that ACUS has long been active in examining how agencies use ADR to manage federal administrative programs fairly and efficiently. ACUS also has published a variety of ADR-related reports in source books during its tenure, including a 1995 practitioners’ deskbook developed in partnership with the CPR Institute, the “The ADR Breakthrough for Government Contract Disputes.”
The agency’s efforts led to passage of the Administrative Dispute Resolution Act in 1990 and 1996 (an ACUS wiki explains the acts here), and the Negotiated Rulemaking Act (ACUS wiki here). Both acts designated ACUS as the lead agency responsible for coordinating ADR and negotiated rulemaking.
Jeremy Graboyes also mentioned that ACUS undertook an important project, the use of ombuds in federal agencies, and launched a new project to investigate how agencies might better use different types of ADR to resolve matters related to their core statutory authorities.
ACUS has recently established an ADR Advisory Group to advise the agency on potential new initiatives to improve ADR design and administration across the federal government, working closely with Pete Swanson and FMCS.
Kristen Blankley explained the overview, methodology, and main research areas of the ACUS consulting report. Judith Starr then talked about ADR’s deep historical roots in federal agencies since early 1900s to 1990 ADRA, the subsequent legislative landmarks, and the ACUS’s role in assisting in executive branch ADR implementation.
Blankley analyzed the most preferred selection and implementation of ADR modalities, including mediation, facilitation, ombuds, arbitration, conciliation, and factfinding. She reviewed recommendations regarding the selection and implementation of ADR processes in relation to the increased visibility of these programs, as well as the need to establish routine outside program evaluation.
Judith Starr said that staffing practices are highly dependent on agency resources. She talked about training programs and opportunities, their variation in length and form, and recommended continuing education, certification opportunities, and specialized training. Blankley emphasized the importance of increasing transparency in ADR proceedings, confidentiality, and harmonized ethics rules. Blankley also highlighted ADR case management strategies and tools, the importance of external audits, software review, and ethics policies for case managers.
Starr concluded her presentation by talking about interagency ADR operations, and Blankley discussed areas for further research, such as wellness, diversity, online dispute resolution, and supporting ADR across the executive branch.
The meeting concluded with a Q-and-A session.
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The author, an LLM student focusing on international commercial arbitration at Pepperdine University School of Law’s Straus Institute for Dispute Resolution in Malibu, Calif., is a Spring 2022 CPR Intern.
#CPRAM22: Corporate Counsel Roundtable–Leveraging Technology to Prevent Disputes
By Janice L. Sperow
Unlike many other alternative dispute providers that focus exclusively on conflict resolution outside the courtroom, the International Institute for Conflict Prevention & Resolution (CPR) also places a high premium on dispute prevention.
That’s right–curtailing an emerging issue before it becomes a full-blown legal dispute in the first place. CPR has challenged the corporate world to commit to dispute prevention by signing CPR’s Dispute Prevention Pledge for Business Relationships.
Business disputes impose enormous costs in loss of mission, business, focus, revenue, and relationships. Consequently, today’s savvy leaders understand the need to use every tool possible to prevent them–including increasingly available, sophisticated technology.
Four corporate leaders shared how they leverage technology to prevent business disputes at this year’s CPR Annual Meeting. Corporate counsel in-house thought-leaders joined this article’s author, CPR neutral Janice Sperow, La Mesa, Calif.’s Sperow ADR Services. who moderated a March 2 #CPRAM22 discussion on the role of technology in preventing disputes.
The panel explored data transformation’s accelerating role in avoiding litigation, securing compliance, and minimizing risk across a wide range of industries, sectors, and markets. From “big data,” software development, and retail sales, to aerospace and defense, these experts explained how they navigate the benefits and challenges of today’s technology and tomorrow’s automation.
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The corporate counsel panelists included leaders in their fields: Amy Yeung, General Counsel and Chief Privacy Officer for Lotame Solutions Inc., a Columbia, Md., data collection and management consulting firm; Nick Barnaby, Staff Vice President and Associate General Counsel at aerospace defense contractor General Dynamics Corp. in Reston, Va.; Chris Nelson, head of the Data & Operations Team for Microsoft Corp.’s Compliance & Ethics organization in Redmond, Wash., and Kenneth Oh, Vice President of Privacy for Bath & Body Works, headquartered in Reynoldsburg, Ohio..
Before Lotame, Amy Yeung started her career the conventional way, in law firm practice. She soon went in-house, joining Zenimax Media Inc., a Rockville, Md.-based global video game publisher, as Associate General Counsel. She then moved to New York-based artificial intelligence platform Dataminr. Continuing to build on her successes, she became Deputy General Counsel at Comscore Inc., in Reston, Va., where she was integral in evolving the company to compliance with new and prospective privacy regulations, in addition to launching Comscore products.
Like Amy, Chris Nelson is no stranger to big data. His Microsoft position has primary responsibility for workplace- and business-conduct. The Data & Operations Team (DOT), brings together data analysts, program managers, and legal professionals to design and operate solutions that increase the effectiveness of investigations, translate learnings into data-driven insights, and build predictive models and analytics that help the company mitigate emerging compliance risks. Chris is also a core member of Microsoft’s Anti-Corruption Technology & Solutions program, a 10-year effort to “bend the curve” of corruption by delivering expertise and anticorruption technology to governments. Chris worked as Microsoft corporate counsel before taking over DOT.
Protecting new technology, Kenneth Oh is a privacy and intellectual property attorney with more than 25 years of experience. He is a former Trademark Examiner with the U.S. Patent and Trademark Office and was of counsel with Washington, D.C.’s Baker & Hostetler, where he advised clients on intellectual property issues, litigated cases, and appeared before the USPTO’s Trademark Trial and Appeal Board. He served as Associate General Counsel at Bentonville, Ark.’s Walmart Inc., and Assistant Vice President, Privacy and IP Corporate Counsel with Miami-based TracFone Wireless Inc. before becoming the Assistant Vice President, Privacy at Bath & Body Works Inc.
Handling large government and other contracts, Nick Barnaby is General Dynamics’ Staff Vice President and Associate General Counsel, where he advises on many of the company’s most significant litigation and disputes. Nick works on identifying and avoiding potential risks and disputes. Prior to joining General Dynamics, Nick was a partner at Jenner & Block, focusing on internal investigations and commercial litigation.
Moderator Janice Sperow is a full-time neutral, CPR arbitrator and mediator, hearing officer, special master, and Judge Pro Tem who serves on several arbitration panels, including emerging technology, complex commercial, and employment disputes. Formerly a litigator with Morrison & Foerster and then Managing Partner and Head of Litigation & ADR at Ruiz & Sperow, Janice has served as an arbitrator for more than 35 years, overseen more than 450 arbitrations as an arbitrator, and conducted more than 1,000 arbitrations as counsel. Like CPR, she also focuses on dispute prevention.
Despite their differences, the panelists shared one key innovation: they are on the cutting edge in using technology to prevent disputes and mitigate risk.
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The Format: The moderator used a series of questions to launch the dialogue. Here is what the panelists shared with CPR at its annual meeting.
Question: Share with us how your company currently uses technology to prevent disputes and avoid risks.
Chris: Microsoft aggressively uses technology inside the company to fuel its compliance programs and to drive a culture of accountability and business ownership of risk. One of the critical avenues Microsoft uses focuses on increasing the use of data and data fluency on the legal compliance side so that managers and risk owners can translate historically subjective descriptions of risk into objective quantifiable indicators of why a particular risk is trending high or low as compared to the rest of the world–all in the business language they understand and work with daily. It also paints a big picture of how the risk looks over time, its scope, magnitude, and current probability.
Amy: Lotame pulls together a lot of big data sets for commercial advertising purposes, but many companies also use these same data sets to address risk. For example, insurance and financial companies use them to round out their own data for benchmarking, context, and discrimination avoidance. Prior companies, such as Dataminr, capture social media content for immediate use on the ground, such as in the Ukraine conflict, to protect employees and personnel at risk by feeding them real-time data. Other companies use the data for anticipatory prevention such as crafting policies or developing training to address predicted risks.
Kenneth: Bath & Body Works focuses on technology use to protect privacy. In today’s world, it would frankly not be possible to practice privacy law without technology, AI, and third-party vendor software that track data, systems, and populates necessary information fields. Technology reduces the risk of human error as the AI manipulates the data.
Nick: General Dynamics likes to use technology to address the root causes of disputes. Most disputes trace back to three sources or drivers: poor business partners, poor assumptions, or poor contractual terms. For example, technology-assisted due diligence of potential suppliers or partners can uncover more information quicker than a manual review. It may reveal information that can permit the parties to structure a deal which addresses that information directly before a problem arises, or even information that permits a company to choose not to partner with a particular entity.
Question: Dispute prevention looks both backward and forward. We hope to learn from past disputes and avoid repeating them. We also hope to use data to predict potential future problems and avoid them. How has your company used technology both to prevent repeat problems and to avoid future risks?
Chris: Microsoft has been on a multi-year journey to learn how to capture lessons from disputes, workplace investigations, and corruption cases to then try to hone them into a compass that can help point in the direction of likely problems in other places to ideally avoid them, since most risks are serial in nature. Microsoft then feeds those lessons back to the management teams to implement and thereby can avoid a whistleblower case, for example, before it happens. While Microsoft understands that reactive capabilities are critical and therefore it has hotlines, complaint, and ethical issue avenues for problems requiring immediate redress, its focus also includes a proactive approach, for if we do not proactively apply what we learned, then we have as a society have learned nothing. Reactive posturing is a long-term losing proposition.
Amy: Post-mortems are critical on all levels: individual, enterprise, strategic. Plus, the data sets can serve as an independent check to confirm that the company is on the right track. The data become a movable white board to hold us all accountable and to avoid repeating mistakes because we all share in the lessons learned based upon the data.
Question: What are some of the most underused technologies in the corporate world today? Technology that could really help prevent disputes and risk but that we are simply not taking full advantage of?
Nick: Data currently used for business purposes could often be leveraged to mitigate risk if seen through that lens. For example, a budding contract dispute in a long-term contract can often mask a bigger underlying issue, such as a failure to meet a contractual obligation. If we used the information we collect in the aggregate for business purposes for prevention purposes, we could often address concerns before they ripen into full-blown disputes. General Dynamics, and likely many other companies, could use the information they already capture for business uses and repurpose it for risk-management purposes and to escalate the issue more quickly to higher-level decisionmakers before it blossoms into litigation.
Ken: Technology tools work exceptionally well for version- and document control. [Version control tracks systemic changes in software engineering.] We actually have many tools right now that we do not fully understand and use to their maximum capabilities.
Chris: The type of tool most needed and underused depends on the type of risk. For example, for financial risks, data architecture and structure are key. At the executive level, if the company is deciding where to deploy personnel to manage risk, then visualization and constant monitoring are essential.
Question: Greater technology use certainly achieves greater benefits. But it also comes with its own challenges. What are some of the issues you have faced with increased reliance on technology and how have you navigated them?
Amy: The greater the footprint grows, the more resources the company needs to devote to it. For example, most companies adopted email without pre-planning or thought. Now, emails frequently represent litigation fodder. Well, many companies are not currently thinking of today’s email equivalent–the data and technology we are using or adopting today and how it will be used in disputes down the road. Thus, one of the key challenges both at the enterprise and commercial level is the thoughtful planned and integrated structure for technology use at your company. Earlier architecture and ongoing monitoring of data uses can create a much more seamless integration of technology and avoid some types of risk before they occur.
Nick: General Dynamics very deeply values transparency and trust. So, one of the challenges we face in any adoption of new technology is managing the culture around its implementation, requiring us to focus on alignment and trust so employees understand the purpose, need, and benefit of the technology. General Dynamics empowers employees to use and adopt the technology themselves rather than imposing it on them.
Question: How does data ethics fit in?
Amy: Awareness and enactment of data privacy regulations has definitely increased dramatically. Consumers are also becoming more conscious of the varying uses of their data. We data professionals are really looking at the ethics involved in data use and taking responsibility. We do a gut check: Are our assumptions correct? Did we start with the right questions to begin with? Is this the right thing to do?
Question: What has really been worth it in terms of return on investment? If you had to choose one technology that has most impacted your company’s bottom line in terms of dispute and risk cost savings, what would it be?
Kenneth: Privacy software. Frankly, it would subject the company to statutory liability and damages not to properly monitor the use and privacy of customer data with available technology.
Chris: Microsoft uses its own really deep stack of technological tools. In addition, Microsoft spends on securing rich, valuable data sources, especially when working with governments. We also spend on data fluency, making sure we have the personnel who can bridge the risk managers to the backend data.
Nick: Technology limiting and eliminating the environmental impact of our operations. Investing in remedial technology beyond legal requirements to reduce any lingering liability from past environmental issues that occurred before people understood the environmental impact of the chemicals and materials used.
Question: How has data automation affected your own department? Has it helped prevent disputes and minimize risk?
Ken: Access to data quickly has allowed us to prevent disputes.
Chris: Data transformed the de-escalation of the energy after an investigation or dispute. After a dispute, the stakeholders meet and determine the critical failure points. At the end of the meeting, they are energized to avoid the same problems in the future. But a manual audit approach does not have a good return on investment and tends to deenergize the good intentions and follow up. Data has transformed that phenomenon. Now, people have data and a model showing where to look next for the problem to surface and to avoid it, rather than anecdotal memories. Vertically integrating the process to avoid waiting to get answers and analytics in the middle of the process has really helped as well.
Nick: Technology has helped us diagnose legal spend and determine patterns with data analysis rather than an old-school subjective review of legal bills.
Question: Predictions–Experts predict that we will see more technological advances in the next decade than we did in the past century. Given our world’s accelerated data transformation, what area do you predict will see the greatest advancements in dispute prevention over the next five years?
Nick: A more-hope-than-a-prediction that conscientious folks will use technology for good purposes, such as preventing disputes, and not just to gain an advantage.
Amy: Consolidation and integration of technology uses and functions.
Chris: Natural language processing.
Moderator: Personalized and genetics-based healthcare.
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Key Themes & Takeaways:
- With greater technological advancement, comes greater responsibility.
- Use technology in a language business managers understand to achieve common goals.
- Real-time data allow on-the-ground, in-the-moment decision-making to mitigate immediate risks, such as supply-chain blockage due to extreme weather or civil unrest.
- Keeping knowledgeable and current on developing technology allows companies and individuals to pivot nearly instantaneously to new business opportunities.
- Technology-assisted due diligence can more easily permit companies to partner and align themselves with others that share their goals and values.
- Capturing data over time illustrates the serial risks companies face, their pattern, and where they are likely to surface next.
- Technology allows society to turn its past lessons more easily into future remedies.
- Repurpose and leverage data already captured and monetized for business uses to prevent disputes.
- Understand and use all the features of your technology.
- The nature of the risk will often dictate the best technological tool to prevent it.
- Data ethics must be a conscious part of all technology use.
- Ultimately, technology is only as good as the uses to which we, as humans, put it.
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Take the Pledge:
If you agree that dispute prevention should play a vital role in our economy and society but are not sure where to begin, start by taking the CPR Dispute Prevention Pledge for Business Relationships. If you would like to become more active in dispute prevention, join CPR’s Dispute Prevention Committee, or if the intersection with technology sparks your interest, join CPR’s Technology Advisory Committee. Contact CPR Senior Vice-President Ellen Parker at firstname.lastname@example.org. For other questions or information about this article or the roundtable, contact Janice Sperow at email@example.com.
CPR members can access the roundtable video and other #CPRAM2022 sessions after signing in here.
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Author Janice Sperow is a full-time neutral, arbitrator, mediator, dispute prevention facilitator, and Hearing Officer specializing in mass claims, healthcare, technology, employment, and all commercial matters. She works on domestic and international matters at her La Mesa, Calif., firm, Sperow ADR Services. Her previous CPR Speaks article was “Increased Mobile Health Triggers Increased FTC Enforcement, and Points to a Need for Dispute Prevention Efforts,” CPR Speaks (Nov. 4, 2021) (available here).
Highlights from the CPR Houston Regional Meeting & Networking Event
By Tamia Sutherland
The CPR Energy, Oil, and Gas Committee held its Fifth Annual Houston Regional Meeting and Networking Event on January 19. The meeting, attended by more than 75 participants, was divided into two parts: a panel discussion and networking roundtable where attendees were placed in breakout rooms with the panelists and rotated every 10 minutes.
BakerHostetler was a co-sponsor of the meeting, which was moderated by Sashe Dimitroff, the national practice leader of BakerHostetler’s International Commercial Arbitration team. The panelists discussed the most important factors they look for and their frame of mind while selecting outside counsel when a problem arises and included:
- Victoria Lazar, the Executive Vice President, Chief Legal Officer, and Secretary in Houston at TechnipFMC, a global company providing technology for energy operations (see Marc Curriden, “TechnipFMC’s Victoria Lazar Solves Billion-Dollar Problems,” Texas Lawbook (Dec. 21, 2021) (available here).
- Bryan Elwood, the chief legal officer at Houston’s Tricon Energy, which provides support for commodities market participants including risk management, finance, and more.
- Josh Dazey, the general counsel of Arlington, Texas-based U.S. Energy Development Corp., a private oil and gas producer, and
- Alberto Ravell, senior legal counsel at ConocoPhillips Co., a Houston-based oil and gas producer.
Brief introductions were made by CPR’s Vice President of Global Development, Mia Levi, and President and CEO Allen Waxman. Moderator Dimitroff then began with a question about the panelists’ biggest internal clients from the in-house counsel viewpoint. Panelist Josh Dazey explained that his internal clients are the entire executive management team, including the chief executive officer, chief financial officer, vice presidents of securities, operations, and business development. Panelist Alberto Ravell added that he also has to address international and domestic business units and other colleagues in his legal department.
Dimitroff then asked what type of research the panelists do before hiring outside counsel. Panelist Bryan Elwood explained that he generally has a list of counsel. But he highly recommended that firms have a good network of lawyers who can make referrals. Furthermore, Elwood said he explores information on the Internet, such as Legal 500 and other similar sources. Once his research is complete, he said he goes through interview, shortlist, and decision processes.
An audience member asked how solo practitioners can get in front of the panelists and in-house counsel. Panelist Victoria Lazar explained that the best way is to cultivate relationships for references, and publish thought-provoking, industry-specific articles that will catch people’s attention.
Moreover, Lazar stated that she is willing to follow lawyers if they leave larger firms and branch out independently. Panelist Bryan Elwood added that in his experience, sometimes larger firms will bring on a solo practitioner to help in a case, which is a great starting point to build relationships with in-house attorneys.
The last question posed asked the panelists to provide examples of a good first meeting with a lawyer/firm. The panelists suggested being prepared, understanding the business risk, and chemistry as essential factors. Moderator Dimitroff summed up the answers by stating that the most important thing clients care about is commercial solutions.
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For more information about CPR’s Energy, Oil and Gas Dispute Resolution Services, please visit the CPR website.
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The author, a second-year law student at the Howard University School of Law in Washington, D.C., is a CPR 2022 Spring Intern.
From CPR’s International Conference Last Month: How to Work Effectively with Your In-House Counsel
By Mylene Chan
During the 2021 CPR International Conference, held online Oct. 6-7, CPR’s Young Leaders in Alternative Dispute Resolution Steering Committee presented “How to Work Effectively with Your In-House Counsel.”
The panel was moderated by Y-ADR’s Steering Committee member Elizabeth Chan, an associate at Three Crowns in London, and included Daniel Huth, Legal Counsel of Global Litigation Europe & MENA for Shell in London; Hemma Lomax, Senior Corporate Counsel, Snap Inc., in Santa Monica, Calif.; Brittany Mouzourakis, Counsel-Litigation at Detroit’s General Motors Co., and Megan Westerberg, Assistant General Counsel, Eisai U.S., Woodcliff Lake, N.J. (Links to the participants can be found on CPR’s website at https://bit.ly/3qlhryI.)
The panel’s focus was on providing advice for young practitioners on developing business relationships and working with in-house counsel. Young practitioners are often told to “think commercially” and to draft advice that reflects commercial acumen. As young practitioners gain more experience, they are expected to manage client relationships and case matters efficiently and within budget. This panel discussed how young practitioners could gain visibility with the client, how they could understand their client’s commercial objectives, and how they could win clients’ trust and confidence.
The panel opened with a discussion on effective pitching to the client. One panelist advised that young practitioners at the pitch table should project confidence, passion, and knowledge of the subject. Even if a rainmaker is present, junior practitioners should not think of themselves as window dressing because the in-house counsel listening to the pitch wants to hear from the junior practitioners as well for other perspectives.
Another panelist explained that the presence of junior practitioners at the pitch table underscores the law firm’s commitment to workforce diversity, which is an important criterion for many in-house counsel in selecting outside lawyers.
To raise visibility, the panelists encouraged young practitioners to find a few moments around the pitch to greet the potential clients, build rapport and to get to know the client. Young practitioners should take the initiative to interact with in-house counsel directly to create face-time opportunities, such as offering to buy in-house counsel a coffee to network.
The panelists also urged young practitioners to publish; the publication does not have to be in a formal journal but could be a blog. Many young practitioners also gain visibility through re-posting on LinkedIn and piggybacking on others’ posts. Newcomers to ADR practice should start networking early on, and one easy method is through joining relevant online communities.
In addition to finessing interpersonal skills, young practitioners also must learn how companies approach risks, including the practices that they put in place to avoid, mitigate, and remediate risk.
The panelists elaborated that if young practitioners are cognizant of the principles of risk control, they will have a holistic view and better understanding of the company, putting those practitioners in an excellent position to help companies resolve conflicts–which will inevitably happen–and to move past impasses.
The panelists cautioned that in-house lawyers and company executives do not think alike, contrary to what many young practitioners appear to believe. For example, a vice president may or may not approach risk and compliance the same way as a manager.
Many young attorneys appear to harbor the erroneous assumption that companies have properly trained their staff and have the appropriate monitoring programs in place when, in fact, in-house counsel may expect external lawyers to guide companies in risk management through baby steps.
Young practitioners should be mindful of the collaboration dynamics between inside and outside counsel so that they can contribute accordingly. When an arbitration or legal proceeding launches, the initial step is for the internal and external counsel to determine the appropriate questions to ask, the respective roles, and the documents to be collected in order to develop a case strategy.
The next step is to consider the staffing of the team, and the rule, the panel members agreed, is the broader the better. The team should ascertain the length, cost, and insurance coverage, and of course, they must discuss the assessment of the case, including the strengths and weaknesses of each claim. The panelists agreed that there should be full collaboration all the way through the matter between inside and outside counsel.
For enhanced communication with outside counsel, young practitioners should understand that in-house counsel hire outside lawyers for their energy, expertise, and resources to facilitate decision making, so outside counsel must learn to synthesize complicated ideas and present information succinctly.
Since inside counsel may receive hundreds of emails per day, the communication must be concise and easy to digest. In such communications, young practitioners should lay out options, make a recommendation, and explain the relevant reasoning. In-house counsel often want bullet points that they can easily parse through, not legal briefs, so that they can interface with business colleagues seamlessly. Understanding the life cycle of decision-making at companies and partnering with the in-house counsel is also critical for aspiring young practitioners.
The panelists concluded by giving their final advice for young practitioners: (1) be nosy and greedy, be a creator not just a consumer; (2) just jump in, be genuine and sincere; (3) take the initiative to be heard; and (4) distinguish oneself from the team, ask the right questions, help clients avoid surprises, and dare to challenge.
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A video of “How to Work Effectively with Your In-House Counsel” from the 2021 CPR International Conference has been posted on CPR’s website at https://bit.ly/3qlhryI.
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The author, an LLM candidate at Pepperdine University Caruso School of Law’s Straus Institute for Dispute Resolution, in Malibu, Calif., is a 2021 CPR Intern.
The Current State of Arbitration in India–Recent Developments
By Arjan Bir Singh Sodhi
CPR’s Arbitration Committee conducted a Sept. 23 Zoom on recent India conflict resolution developments. The session also provided an update on the “CPR Corporate Counsel Manual for Cross-Border Dispute Resolution–India Supplement.” (See the new supplement on CPR’s website at https://bit.ly/3oR6y7l.)
Viren Mascarenhas, a partner in King & Spalding’s London and New York offices who is the India Supplement’s co-editor and CPR Arbitration Committee vice chair, moderated the discussion. The panel included:
- Tapasi Sil, general counsel–South Asia, GE Renewable Energy, Dehli, India
- Rishab Gupta, partner, Shardul Amarchand Mangaldas & Co., Mumbai
- Shaneen Parikh, partner (head-international arbitration), Cyril Amarchand Mangaldas, Mumbai
- Sanjeev K. Kapoor, partner, Khaitan & Co., New Dehli, India
- Quentin Pak, director, Burford Capital, Singapore
For more on the panelists’ and the program’s background, see CPR’s website here.
Viren Mascarenhas kicked off the discussion, welcoming the panelists, and updating on the new version of the CPR Corporate Counsel Manual for Cross-Border Dispute Resolution–India Supplement.
Tapasi Sil provided a view on her international work as an in-house counsel, and how business sees the development of India arbitration from her position as GE Renewable Energy counsel. She acknowledged the positive impacts amendments to the Indian Arbitration and Conciliation Act of 1996, but she also noted that business might face strains in using arbitration over time and costs.
Sil also noted a lack of expertise in commercial and technical knowledge required by the current India arbitrators. She said she hoped that India would welcome diversity and inclusion in arbitration in the future, and increase the numbers of women arbitrators.
Panelist Rishab Gupta also addressed the Indian Arbitration and Conciliation Act of 1996, which he said is based on the UNCITRAL Model Law on International Commercial Arbitration (1985). While pointing out many similarities of the Indian arbitration law with other common law jurisdictions, he noted that the law still required multiple amendments due to cultural factors such as:
- A long history of having only ad hoc arbitration and a lack of institutional arbitration;
- The need for a more professional arbitration body that focuses on arbitration expertise emphasizing commercial and technical knowledge;
- A lack of professional arbitrators, and more focus on litigation for dispute resolution;
- A lack of trust in the arbitration process, which, according to Gupta, is a result of the above three factors, and
- The frequent move to Singapore as an arbitration seat for most corporate and cross-border disputes.
Shaneen Parikh of Cyril Amarchand Mangaldas covered India’s current Arbitration and Conciliation Act of 1996 amendment. She spoke about the April pro-arbitration judgment from the Indian Supreme Court, citing Justice Rohinton Fali Nariman in PASL Wind Solutions v. GE Power Conversion India (available, after cutting and pasting, at https://bit.ly/2WZpll8), where it was concluded that two Indian parties could choose a foreign seat of arbitration.
The judgment, noted Parikh, upholds a fundamental ADR principle, party autonomy. She also spoke about the interim relief covered in Section 9 (available, after cutting and pasting, at https://indiankanoon.org/doc/1079220) of the Indian Arbitration and Conciliation Act of 1996.
Furthermore, in the PASL Wind Solutions case, India Supreme Court Justice Nariman referred to the Convention on the Recognition and Enforcement of Foreign Arbitral Award, better known as the New York Convention (see www.newyorkconvention.org), to rule that different international commercial arbitration and foreign awards are enforceable. In the decision, Parikh pointed out, Justice Nariman also held that awards considerations should involve the territory involved, not the parties’ nationality.
Parikh concluded her segment of the panel discussion by discussing the need for more institutional arbitration for domestic and foreign matters.
Khaitan’s Sanjeev Kapoor discussed the interim arbitration procedures and how they are being enforced in India. He said that there are three major issues often faced by the Indian courts:
1) interim orders by arbitration tribunals or domestic arbitration institutions;
2) interim orders by emergency arbitrators in India, and interim orders from foreign arbitration tribunals, and
3) challenges to foreign awards, though he added that there are not many challenges when it comes to enforcing domestic awards in India.
Kapoor said that interim relief involves getting the award from a domestic tribunal and then filing an application under Section 9 of the Indian Arbitration and Conciliation Act of 1996. He also discussed PASL Wind Solutions.
Burford’s Quentin Pak shared his thoughts on the Indian capital market and third-party funding. He pointed out three major factors he said he believes are the factors in the increase in the third-party funding of international arbitration proceedings:
1) Singapore and Hong Kong are passing legislation encouraging third-party funding of arbitration.
2) International companies prefer the Singapore International Arbitration Centre over domestic seats, and
3) The Covid-19 pandemic put pressure on corporations’ balance sheets, accelerating the use of third-party funding.
Pak concluded by talking about the requirement of funding in India-seated arbitrations, and the monetization of India awards because of the size and growth of the Indian market to international investors.
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The author, a CPR 2021 Fall Intern, is an LLM candidate at the Straus Institute for Dispute Resolution, at Malibu, Calif.’s Pepperdine University Caruso School of Law.
CPR’s International Conference: European Views on the Resolution of Complex Technology Disputes
By Tamia Sutherland
During the Oct. 6-7 CPR International Conference–the first the New York-based conflict resolution think tank and publisher of the CPR Speaks blog has held combining the work of its international advisory boards–CPR’s European Advisory Board presented a virtual panel centered around resolving complex technology disputes.
The panel discussed highly technical blockchain, patent, and intellectual property disputes. Mark McNeill, a New York and London partner in Quinn Emanuel Urquhart & Sullivan, moderated the panel that included:
- Luke Sobota, a founding partner and Washington, D.C., managing partner at Three Crowns,
- Edith Jamet, general counsel at SoftAtHome, a Colombes, France, software company, and
- Mark Beckett, chief information officer at ArbiLex, an arbitration analytics and funding consulting firm based in Allston, Mass.
After introductions, Moderator McNeill posed a question about the resolution of blockchain disputes. Panelist Luke Sobota explained that blockchain operates as a fixed ledger stored internationally on computers world-wide, making the recorded data hack-proof as “the block exists everywhere at once, and nowhere in particular.” Though the blockchain is secure, it cannot anticipate every mistake or account for human error.
To illustrate what types of disputes may arise as a result of blockchain use, Sobota provided the following example: Blockchain technology can be used in commercial transactions by including a QR code with delivered goods that automatically transfers the payment from the buyer’s cryptocurrency account to the seller’s account, and records the transaction on a block when scanned by the recipient, also known as an oracle.
Sobota defined an oracle as “a real-world objective piece of data that the blockchain software, itself, can retrieve and verify.” This process does not require third-party involvement, and is “both the promise and limitation” of the technology, he said.
The oracle, however, can fall short. Disputes can arise when a recipient of goods fraudulently refuses to scan the QR code; the code has a bug that results in an excessive transfer of money; or the goods are partially damaged as there is no code for partial payment or refunds.
Due to blockchain’s decentralized nature, domestic courts do not have jurisdiction to resolve these transnational disputes, and sometimes, the parties are anonymous. Sobota explained that the two forms of arbitration best suited to resolve these unique disputes are (1) on-block arbitrations and (2) traditional commercial arbitrations.
On-block arbitrations are administered through various platforms and are currently “quite minimalist and only suitable to very simple transactions,” according to Sobota. In this case, parties agree that anonymous “jurors” will resolve the dispute, and the discrepancy is remedied automatically on the blockchain by issuing a new block.
For example, an on-block arbitration can immediately provide a refund for partially damaged goods. Panelist Mark Beckett mentioned Kleros, which is an example of an arbitration platform that relies on smart contracts and anonymized jurors to resolve disputes.
While this appears to be an easy and effective solution, questions about a lack of juror guidance, financial incentives, outside pressures, and concerns regarding juror consistency are critiques of the decentralized justice method.
Moderator McNeill then asked panelist Edith Jamet about the types of disputes she sees and how she prefers to resolve the disputes in her in-house role at a software company. She said she typically deals with patent issues. She said confidentiality is essential, and thus, mediation is best to find resolutions, and arbitrations are second best when the parties cannot come to a decision. She conceded, however, that sometimes court is mandatory and can be more secure.
Jamet discussed a mediation with the French tax administration where she had to demonstrate that her company’s technology was innovative and therefore eligible for a tax credit. Emphasizing Luke Sobota’s earlier point about finding sufficiently knowledgeable neutrals, Jamet said that she had to make an analogy to train tracks to illustrate her company’s technological software advancements because it was complex and she wanted the mediator to understand her arguments.
In response to an inquiry about the arbitration’s suitability for IP disputes, Mark Beckett raised skepticism about the number of neutrals who have technical knowledge. He noted that, in court, at least there is a right to appeal. Luke Sobota noted again that suitability depends on the neutrals chosen. In the case of typical IP contractual disputes, however, no special knowledge is necessary, said Sobota.
Moderator McNeill asked Mark Beckett about ArbiLex, its mission, and what it can do. Beckett replied that ArbiLex is a legal technology startup that uses artificial intelligence and predictive analytics in international arbitration. The company provides practitioners and institutions with data to determine whether they should litigate or arbitrate a case. Ethics guidance states that lawyers generally cannot give a percentage chance of prevailing in a dispute due to predictive limitations. But ArbiLex is providing data for parties to assess the chances of prevailing in disputes.
Beckett explained that ArbiLex’s system can run combinations of different tribunals to provide outcome prediction analysis, provide information on who appointed certain arbitrators, predict case outcomes, relate outcomes to whom a particular arbitrator is sitting with, and provide data on how counsel has performed against each other. The information and graphics provided by ArbiLex, said Beckett, could cut down on the amount of research practitioners need to make tough decisions regarding dispute resolution of complex issues, where various interests may be pulling the practitioner in different directions.
Throughout the conversation, the neutrals that participate in CPR’s Technology Advisory Committee were mentioned as resources for finding technologically knowledgeable neutrals when these complex technology disputes arise.
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The author, a second-year law student at the Howard University School of Law in Washington, D.C., is a CPR 2021 Fall Intern.
Notes on Diversity: Princeton’s Ramona Romero on Higher Education; Toronto Consultant/Neutral Verlyn Francis on ADR Ethics
By Arjan Bir Singh Sodhi
Here is a synopsis of the CPR Diversity in ADR Task Force meeting conducted online on Tuesday, Oct. 5, 2021.
Welcome & Introductions
CPR Diversity in ADR Task Force Co-Chairs the Hon. Timothy K. Lewis and the Hon. Shira A. Scheindlin welcomed and thanked the panelists and attendees for joining.
Interview with Ramona E. Romero, vice president and general counsel at Princeton University, in Princeton, N.J.
Task Force co-chair Timothy Lewis, retired Third U.S. Circuit Court judge and counsel in Schnader Harrison Segal & Lewis started the panel discussion on diversity in ADR. He gave a brief introduction for Romero and asked her to share her experience as an immigrant to the United States. Romero started her interview by thanking all the participants of the meeting. She also shared her story of moving to the United States at age 11 from the Dominican Republic. From an early age, Romero said she emphasized the value of working hard. She placed much importance on collaboration and how it helped her learn.
Task Force co-chair Shira Scheindlin, retired New York U.S. District Court judge and of counsel in New York’s Stroock & Stroock & Lavan, led the second part of the interview, asking Romero to share her views on considering characteristics that are fair for admission purposes in law schools and universities. Romero replied that she believes affirmative action is still required due to racial and ethical inequalities in schooling, housing, employment, and policing. She discussed Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199, which highlights the issues faced by the students regarding their university admissions.
Romero then shared her view on immigration policy, noting, “Immigration is essential to higher education as it is essential to the diverse economy of the United States.” She emphasized the importance of having a diverse U.S. judiciary as it increases trust and perception of fairness. Because, she said, the majority of people who deal with the judiciary are people of color, having a diverse judiciary with more people of color and women will aid in building trust for the judicial process.
Romero concluded her discussion by hoping that corporations, businesses and interested parties can do better in the future by promoting the advancement of women and people of color in the legal profession.
Verlyn Francis, Presentation on “Ethics in Arbitration: Bias, Diversity, and Inclusion.”
Francis is an arbitrator, mediator, and trainer at Isiko Dispute Resolution Consultants, Toronto, and a Professor of ADR at Centennial College, also in Toronto. She started her presentation by talking about the genesis of ethics and impartiality of arbitrators and how we can reduce impartiality bias in arbitration.
She stressed the importance of the code of ethics in the arbitration proceeding. Francis spoke about the consequences of applying those ethical codes to people who didn’t play any role in developing those codes. She said she hopes that many institutions will work on improving rules, ethics, and impartiality in arbitration.
She also spoke about layers of cultural affiliation that can often create stereotypes for other cultures. Hence, she said, an arbitrator should always be aware of implicit bias that can have discriminatory actions towards the parties. She then acknowledged CPR’s recent implicit bias webinar, Imperfect Impartiality: How Neutrals Can Combat Implicit Bias.
She said that often implicit bias operates without awareness of the participants, but the discrimination it produces is visible to those at a disadvantage.
She also expressed concern for the lack of diversity in arbitration that can have its roots in the legal profession, since ADR practitioners are mostly former judges or senior lawyers in law firms where minorities often remain significantly underrepresented.
She also mentioned the Jay-Z case in which the American Arbitration Association roster was challenged due to the lack of available African-American arbitrators. Since that case, the AAA has worked to develop a diverse roster. Francis also noted CPR’s initiatives to further promote diversity and inclusion in the field of ADR. She praised the steps taken by the American Bar Association by passing Resolution 105, which encourages the inclusion of diverse neutrals. She concluded her presentation by encouraging all the panelists to promote diversity in ADR.
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Allen Waxman, CPR’s President and Chief Executive Officer thanked all the panelists for their participation in the discussion. Waxman discussed the importance of understanding dynamics within the tribunal to ensure that all the efforts to increase diversity translate to greater inclusivity.
CPR Announcements closed the Task Force meeting, discussing several events hosted by the CPR Institute, including the 2021 CPR International Conference on Business Dispute Management, which followed the Diversity Task Force event on Oct 6-7 (information at https://www.cpradr.org/events-classes/upcoming/CPR-International-Conference) (Watch CPR Speaks for excerpts from the conference). More events can be found here, and participants were asked to save the date for the 2022 CPR Annual Meeting, March 2-4.
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The author, a CPR 2021 Fall Intern, is an LLM candidate at the Straus Institute for Dispute Resolution, at Malibu, Calif.’s Pepperdine University Caruso School of Law.