CPR’s new website now hosts the CPR Speaks blog. You can find new posts, at https://www.cpradr.org/news/cpr-speaks.
At the CIArb Fellowship Program Training, A Firsthand Arbitration Experience
By Sakshi Solanki
The Chartered Institute of Arbitrators’ Accelerated route to Fellowship (International Arbitration) Assessment was held Oct. 7-8, 2022, at Williams & Connolly LLP’s Washington, D.C., office. It was sponsored by CPR.
I was invited to join and participate with nearly 15 senior practitioners, who attended this training program and brought their litigation, arbitration, and mediation backgrounds.
The CIArb faculty included five moderators, John Buckley, senior counsel at Williams & Connolly LLP in Washington; Jim Reiman, who heads his own Chicago ADR practice; Merriann Panarella, an arbitrator and mediator based in Wellesley, Mass., who also serves as a board member of CIArb’s North America Branch; Kenneth Reisenfeld, a Washington-based partner in Baker & Hosteler LLP, who heads the firm’s global investor-state arbitration practice, and Gaela Gehring Flores, an international arbitration practice partner in the Washington office of Allen & Overy.
The faculty reviewed with the students the laws, rules and procedures governing arbitration. They also assessed participants on their legal knowledge, understanding of the problems presented, and skills as an acting arbitrator or lead counsel.
The participants worked on a fact pattern that involved a complex international construction dispute. The insurance contract between the parties had an arbitration clause which was subject to UNCITRAL Arbitration Rules, and the working documents were based on Panamanian and English law. The place of the arbitration was Toronto.
The training involved 22 interesting exercises, either in a discussion or a roleplaying format, where the participants were divided as either the claimant or the respondent, and where they often played the role of an arbitral tribunal.
There were two breakout rooms for the exercises, and students were shuffled four times in the two training days so that everyone could engage with each other on the exercises.
Among the problems implicated were the constitution of the tribunal, the language of the arbitration, and the challenge and replacement of an arbitrator. Each attendee argued diligently for their assigned side or roleplayed as the arbitral tribunal. I found each exercise to be fun and highly interactive when we discussed various possibilities in resolving a particular issue.
As the training proceeded, the fact pattern got more intense. Issues of fraud, corruption, and expert witnesses were discussed. Toward the end of the first training day, Jim Reiman lectured on drafting procedural orders. He emphasized the importance of drafting orders in a way to avoid difficulties at the latter stage of the proceedings. After the end of the first day, the attendees were asked to draft either an interim award or a procedural order overnight, based on what was discussed.
The training not only relied on UNCITRAL arbitration rules but also made references to the CIArb Code of Professional and Ethical Conduct, which often comes into play to govern arbitrator conduct. There were also references made to the International Bar Association Rules on the Taking of Evidence in International Arbitration to deliberate on issues of discovery and production of documents.
All the attendees were also expected to draft a final award as the presiding arbitrator. They had to decide the case on the merits and rule on every issue that was submitted.
This was an excellent opportunity for me to be present in a room full of senior knowledgeable practitioners and see them strategize on various accounts and in different roles. The training had a perfect blend of real-time scenarios and use of substantive laws, which I thoroughly enjoyed. It was an unforgettable experience, and I appreciate the faculty of the CIArb, CPR, and the fellow participants who were extremely kind and gracious in allowing me to observe as well as participate in these two days of extensive training.
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The author, an LLM candidate at the American University Washington College of Law in Washington, D.C., focusing on International Arbitration and Business Law, is a Fall 2022 CPR Intern.
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 email@example.com. For other questions or information about this article or the roundtable, contact Janice Sperow at firstname.lastname@example.org.
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).
#CPRAM22 Highlights: Hot Topics/Initiatives in ADR
By Andrew Ling
Lucila Hemmingsen, a partner in the New York office of King & Spalding practicing international commercial and investment arbitration and public international law, moderated a third-day CPR Annual Meeting panel on cutting-edge topics in ADR. The panel focused on arbitration cases pending before the U.S. Supreme Court, new arbitration legislation, an initiative to reduce arbitration’s carbon footprint, and diversity in ADR.
Hemmingsen was joined at the March 4 online #CPRAM22 session by three panelists:
- Angela Downes, who is assistant director of experiential education and professor of practice law at University of North Texas Dallas College of Law;
- Benjamin Graham, an associate at Williams & Connolly, in Washington, D.C., who focuses on complex commercial litigation and international arbitration. He has represented sovereign states and multinational corporations in investment-treaty disputes before ICSID and commercial disputes before leading arbitral institutions, and
- Rachel Gupta, a mediator and arbitrator with her own New York City-based ADR practice, Gupta Dispute Resolutions. She is a mediator for state and federal court ADR panels and is an arbitrator and panelist for CPR, the American Arbitration Association, and FINRA.
Graham and Downes began the discussion by reviewing arbitration cases pending before the U.S. Supreme Court. Downes highlighted Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, in which the question concerned whether a delegation provision in an arbitration agreement constitutes clear and unmistakable evidence that the parties intend the arbitral tribunal to decide questions of arbitrability.
Traditionally, courts are presumed to decide whether a dispute is subject to arbitration, phrased as the “question of arbitrability.” But in recent Supreme Court decisions, the Court has looked at the parties’ agreement and allowed the arbitral tribunal to decide questions of arbitrability if there is clear and unmistakable evidence indicating parties’ intent to delegate the authority to arbitrators.
Panelist Angela Downes said she views the fundamental Henry Schein issue as the drafting of the arbitration agreement, noting that disputes often arise when the agreement or provision lacks clarity. She pointed out that the case, which was dismissed a month after the oral arguments in January 2021 in a one-line opinion in which the Court said that it had “improvidently granted” review in the case, leave the status of delegation agreement still unsettled enough for potential future litigation.
Rachel Gupta then led the discussion on recent legislation on arbitration, focusing on H.R. 4445, titled Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.
The panel discussed the Congressional backdrop to the bill, which was signed into by President Biden on March 3, the day before the panel discussion. In many employment contracts, employees have been bound by arbitration agreements and prohibited from bringing sexual harassment claims to a court. Arbitration proceedings are generally confidential, and the amount of an arbitral award tends to be lower than the damages rendered by a court. And when parties settle the dispute, employees are usually required to sign non-disclosure agreements. As a result, victims of sexual harassment are often silenced.
There are four amendments to the Federal Arbitration Act. First, it does not categorically ban arbitration agreements between employers and employees, but it allows plaintiffs to bring sexual harassment claims to courts. Second, plaintiffs have the option to bring the case individually or on behalf of a class, even if the employer’s arbitration agreement prohibits class arbitration. Third, FAA applicability will be decided by a federal court, not the arbitral tribunal. Finally, the amendments are retroactive.
Gupta pointed out that the bill does not address non-disclosure agreements. Angela Downes said she believed the omission was intended as a compromise to gain bipartisan support for the bill. In addition, many lawmakers and sexual harassment victims view binding arbitration agreements as the cause of the “broken system,” not the non-disclosure agreements.
The new law, the panel suggested, could drastically change employment arbitration practices. As Rachel Gupta commented, it will be interesting to observe if lawmakers intend to make similar amendments to other areas of arbitration, such as consumer class arbitration.
On reducing arbitration’s carbon footprint, Gupta first discussed the Campaign for Greener Arbitrations, founded by U.K. arbitrator Lucy Greenwood in 2019. The Campaign developed a set of Green Protocols to reduce the environmental impact of international arbitrations, such as using electronic correspondence and organizing virtual conferences.
Moderator Hemmingsen shared several changes in international arbitration practice: sending iPads to arbitrators instead of papers; reducing in-person meetings, and using advanced technology to take construction-site photos instead of traveling. She also predicted that more conferences and hearings would be held virtually.
The panel concluded by discussing diversity and inclusion among arbitrators and mediators. There have been several initiatives on appointing diverse neutrals and offering training and networking opportunities, such as the Ray Corollary Initiative, the JAMS Diversity Fellowship Program, New York Diversity and Inclusion Neutral Directory, the ADR Inclusion Network, and the Equal Representation in Arbitration pledge. Many arbitral institutions have taken action to place more women in arbitration panels. And CPR incorporated a “Young Lawyer” Rule in its Administered, Non-Administered and International Arbitration Rules to increase opportunities for junior lawyers to take a more active role in arbitration hearings (see Rule 12.5 in the rules available at https://www.cpradr.org/resource-center/rules/arbitration).
The panelists agreed that promoting diversity among arbitrators and mediators must be a concerted effort from ADR providers, arbitrators, law firms, and clients. Progress in diversity and inclusion is needed to grow the profession and benefit the next generation of ADR practitioners.
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The author, a third-year law student at the University of Texas School of Law, in Austin, Texas, is a CPR 2022 Spring Intern.
#CPRAM22 Highlights: Why Do I.T. Outsourcing Projects Fail? How to Keep Them Going with Dispute Resolution Boards and Standing Neutrals
By Katerina Karamousalidou
A second-day CPR 2022 Annual Meeting panel last week analyzed why information technology outsourcing projects fail, and highlighted ways to keep them going with dispute resolution boards and standing neutrals.
The panel included moderator Zachary Hill, a partner in Morgan Lewis’s San Francisco office; Cherrie Fisher, a civil engineer and ADR neutral and consultant in the Dallas-Fort Worth area; David Frydlinger, managing partner at the Stockholm, Sweden law firm of Cirio Advokatbyra AB, and Kate Vitasek, an adjunct faculty member at the Halsam College of Business, University of Tennessee in Knoxville, Tenn.
After the panelists’ introduction, the March 3 discussion started with addressing common IT outsourcing projects, how they sometimes fail, the consequences of such failure, and then evolving to the use of a standard neutral from an academic and practical perspective to help resolve problems.
Zachary Hill, who represents clients in the technology, energy, and pharmaceutical industries, with a focus on contract disputes involving business software, addressed the issue of IT outsourcing in the software implementation context. More specifically, he explained how even large organizations lack the necessary in-house expertise to handle that type of implementation and, therefore, hire hundreds of consultants and programmers to ensure that the software components function properly.
But given the complexity of such software, projects can often fail at multiple points. Considering the potential risks of software implementation and the failures and high litigation costs associated with such disputes, using a standing neutral is usually useful.
The standing neutral is “a trusted neutral expert selected by the parties at the beginning of their contracting relationship to be readily available throughout the life of the relationship to assist in the prompt resolution of any disputes.” James P. Groton, “The Standing Neutral: A ‘Real Time’ Resolution Procedure that also Can Prevent Disputes,” 27 Alternatives 177 ( December 2009) (available at https://bit.ly/3hSWoy4). See also, Kate Vitasek, James P. Groton, and Dan Bumblausakas, “Unpacking the Standing Neutral: A Cost Effective and Common-Sense Approach for Preventing Conflict,” (University of Tennessee Haslam College of Business Fall 2019) (available at https://bit.ly/3pSD1d4).
The standing neutral originated in construction projects.
Panelist Kate Vitasek, who works on global supply chain issues, focused on the importance of preventing conflict, rather than resolving it. For this reason, pre-selecting and appointing a standing neutral as part of the governance team, who will assist the parties in resolving misunderstandings before they escalate, communicate effectively, and engage in constructive dialogue is extremely useful.
The construction industry began to use dispute review boards to prevent conflict; adding standing neutrals can be effective in every type of industry. The parties can decide upon the expertise they need from their standing neutral–from being a lawyer, or a mediator, to being an industry expert, or an engineer.
Panelist Cherrie Fisher, who acts as a standing neutral herself, emphasized the importance of dispute avoidance from the beginning of a construction project, because most problems arise early, such as a scheduling delay, or a differing site condition.
Then, she focused on analyzing the importance of both construction partnering facilitation and dispute resolution boards working simultaneously to assist parties in dispute prevention.
Panelist David Frydlinger, an attorney focusing on complex customer and supplier contracts, explained that standing neutrals are continuously involved during the project in advising parties and providing them with their neutral perspective.
Videos from #CPRAM22 will be posted; watch www.cpradr.org for updates.
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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 Highlights: Ethics in the Evolving World of Remote, Hybrid, and In-Person ADR
By Tamia Sutherland
During its March 2-4, 2022, Annual Meeting, CPR–a New York-based conflict resolution think tank, ADR provider, and publisher of this CPR Speaks blog–presented a virtual panel on alternative dispute resolution ethics. The panel discussed ethical guideposts for lawyers, mediators, and arbitrators; challenges and solutions in the new post-pandemic business environment; the rise of the hybrid procedures online and in person; and takeaways for meeting the continuing challenges.
Steven Bierman, a former partner and co-head of litigation at Sidley Austin and founder of Bierman ADR LLC, based in New Canaan, Conn., moderated the panel that included:
- Susan Guthrie, a Chicago-based family law mediator, founder of Learn To Mediate Online, and co-founder of the Mosten Guthrie Academy, a training provider for attorneys, arbitrators, and mediators;
- Jill Pilgrim, a business, sports, and dispute resolution attorney, founder and managing attorney of New York’s Pilgrim & Associates Arbitration, Law & Mediation Offices, and adjunct lecturer in law at Columbia Law School;
- Paul Genender, a partner in of the Complex Commercial Litigation practice group in the Dallas office of Weil, Gotshal & Manges, and
- Ellen Waldman, CPR Vice President of Advocacy & Educational Outreach, and a former professor in the fields of mediation and medical ethics.
The presentation began with an overview of the main sources of ethical standards, which include the American Bar Association Model Rules of Professional Conduct, the ABA/American Arbitration Association/Association for Conflict Resolution Model Standards of Conduct for Mediators, and ABA/AAA Code of Ethics for Arbitrators in Commercial Dispute.
Under the ABA Rules of Professional Conduct, panelist Waldman introduced Model Rules 1.1, and 1.6(a), (c) for consideration. MRPC 1.1–Competence states, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
More specifically, she focused on Comment Eight, maintaining competence, which explains what is necessary to maintain the requisite competence: “. . . a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. …”
With the rise of virtual proceedings and the rise of cybersecurity issues and data breaches, Comment 8 is more relevant now than ever before. Moreover, it interacts with another pivotal ethical rule, MRPC 1.6(a), which covers confidentiality: “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) [which lists exceptions for disclosures such as ‘to prevent reasonably certain death or substantial bodily harm’].”
This can pose an issue in a virtual environment where accidental screen sharing, screenshots, and unauthorized recordings have become commonplace—especially in light of MRPC 1.6(c), which reads, “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Under the Model Standards of Conduct for Mediators, panelist Waldman highlighted Standards IV, V, and VI. Standard IV–Competence, states that “[a] mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties … [and] should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.”
Standard V–Confidentiality states that “[a] mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.”
Standard VI–Quality of the Process explains that “[a] mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.”
Under the Code of Ethics for Arbitrators, key rules include Canon IV, titled “An arbitrator should conduct the proceedings fairly and diligently,” and Canon VI, titled “An arbitrator should be faithful to the relationship of trust and confidentiality inherent in that office.”
Additionally, Howard University School of Law Prof. Homer La Rue, founder of the Ray Corollary Initiative (a plan for increasing diversity among the ranks of ADR neutrals), and a CPR Board Member, shared the National Academy of Arbitrators Formal Advisory Opinion No. 26 on video hearings, issued on April 1, 2020, in the chat. The advisory opinion states that “in order to provide an ‘adequate hearing’ by way of video, the arbitrator must be familiar with the platform offered to the parties, and must be confident that the parties have such familiarity as well, or have reasonable access to an effective alternative platform. …”
Before identifying three common themes in the different sources of ethical standards, CPR introduced its model rule amplification proposition that requires third-party neutrals to act diligently, efficiently, and promptly, decline to serve in matters in which the lawyer is not competent to serve, maintain the confidentiality of all information acquired, use reasonable efforts to conduct the process with fairness to all parties, and be especially diligent that unrepresented parties have adequate opportunity to be heard. This referenced both the 2021 CPR Annotated Model Procedural Order for Remote Video Arbitration Proceedings, and the 2002 CPR-Georgetown Commission on Ethics and Standards In ADR Model Rule for the Lawyer as Third-Party Neutral.
The three common rules’ themes discussed were competence, confidentiality, and fairness/quality. The panelists discussed the practical application of each of the themes in practice. They emphasized the importance of using pre-hearing meetings to ensure that the technology does not get in the way of the process, and does not to begin operation until all parties have an even playing field considering the socioeconomic digital divide, as well as the need to consider the effects of zoom fatigue on the parties present.
Videos from #CPRAM22 will be posted; watch www.cpradr.org for updates.
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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 2021-22 intern.
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.