CPR Employment Disputes Committee: Ombud’s Role in Addressing Worker Complaints Is Analyzed

By Daneisha LaTorre

Last month, CPR’s Employment Disputes Committee presented a Zoom discussion highlighting ombuds programs. The panel focused on how ombuds are set up, the services they provide, and their roles within organizations.

Natalie C. Chan, an associate in Sidley Austin’s Chicago office, moderated the June 16 discussion between Joan C. Waters, the University Ombuds Officer at Columbia University in New York, and Timothy Shore, former ombuds at Pfizer Inc.

The event began with a short presentation introduced by the CPR committee chair, Aaron Warshaw, a shareholder in the New York office of Ogletree, Deakins, Nash, Smoak & Stewart, on CPR’s recently released Administered Employment Arbitration Rules, which are available here.

A rules discussion was led by veteran committee members Alfred G. Feliu, a neutral based in New Rochelle, N.Y.; Christopher C. Murray, a shareholder in the Indianapolis office of Ogletree, Deakins, Nash, Smoak & Stewart’s Indianapolis office, and Wayne N. Outten, chair and founding partner of New York’s Outten & Golden. It highlighted Rule 1.4 (Due Process Protections) and Rules 3.12-3.13 (Joinder and Consolidation).

The due process rule is in place to provide fairness, and link to the separate Due Process Protections established by CPR, which can be found at https://bit.ly/3hELLQa.  

CPR also created an innovative procedure through the joinder and consolidation rule, which uses an Administrative Arbitrator to address those issues.

The rules were developed by counsel from the plaintiff’s bar, in-house employment counsel, corporate defense attorneys, and neutrals to ensure fairness throughout the rules. For example, the rules provide detailed guidance to address cases where a party has refused to pay required fees, including guidance on preserving the rights of the defaulting party. The rules also provide factors to consider for discovery, early disposition and remote hearings.

The discussion noted that the rules are specifically designed to avoid ambiguity and interpretative disputes.

The discussion also emphasized the importance of the arbitration rules on addressing imbalances between employees and employers. A CPR Speaks post devoted to the rules can be found here.

* * *

After the arbitration rules presentation, Natalie Chan opened the discussion about ombuds programs, their function, and their benefits . Panelists Joan Waters and Tim Shore provided insight into their experience as ombuds from an academic and corporate perspective.

An ombuds is an official appointed to hear individual concerns regarding issues that may arise in the workplace—Shore emphasized the session’s focus on “organizational ombuds,” as opposed to, say, consumer advocate ombuds jobs. In comparison to human resources professionals, ombuds have an obligation to keep the employee information provided confidential. This method creates a safe space and helps to surface workplace conflict or concerns.

As an ombuds in academia, Joan Waters explained that her role at Columbia University is to serve faculty, students, staff, and any affiliates connected to the institution, including parents and alumni, to hear concerns, act as a referral source and help with conflict negotiation.

Waters explained confidentiality is the most significant contributor to her work. As an ombuds, Waters is not authorized to accept notice on behalf of the university or to keep records of any interaction with the individuals who seek guidance. Specifically, individual’s identities are not disclosed unless there is an imminent risk of serious harm. Waters explained that if an ombuds is presented with information that seems to cause an imminent risk of harming an employee, she can use her discretion to disclose the information.

Tim Shore provided perspective on the responsibilities and role of a corporate ombuds. In his former longtime role at Pfizer—where he was the company’s first ombuds–Shore had the responsibility to oversee the operations of the Ombuds Office.  In this capacity, Shore reported administratively to the chief compliance officer but had direct access to the company’s chief executive officer and board of directors.

Shore explained that an ombuds provides employees with a place that they can raise issues confidentially.

Ombuds help individuals get to the roots of their issues.  If appropriate, the ombuds can also help workers understand the formal steps to be taken if the employee decides that he or she wants to formally report the issue to the company. The process allows employees to control their conflicts and decide if and how that want to take steps to resolve the matter.

To help attendees better understand ombuds programs, moderator Natalie Chan proposed a hypothetical from an employee’s perspective, stating on behalf of a complainant, “I just feel like I’m not being treated properly. My manager doesn’t seem to take my suggestions seriously . . . and I don’t like his tone.  . . . I feel like my male counterpart in the same department is getting preferential treatment and better opportunities.”

Joan Waters explained that the hypothetical is typical of what she often hears from employees. As an ombuds, the mission includes helping employees refine their concerns and understand the process of resolving their dispute. Shore explained that often, people will label their issues, such as, “I’m being bullied” or “I’m being discriminated against,” instead of explaining in detail the core issues at hand.

The ombuds’ goal, said Shore, is to identify the specific issues an employee is facing and help provide the employee with the tools he or she needs to resolve those issues.   During these conversations, ombuds may walk employees through constructive meetings with their managers about their issues or discussing the formal internal process if an employee wants to escalate the situation.  

The question of whether ombuds must report potential discrimination claims that come to their attention was raised. The panelists explained that an ombuds is precluded from reporting unless there is an imminent risk of serious harm.

As ombuds, however, their mission is never to let an employee walk out of the office without a plan to resolve the situation, especially when dealing with a discrimination or harassment issue.

Waters stated that her goal when individuals discuss their situations is to help them specifically identify the problem. She believed once employees understood their options, the individuals would be better equipped to move forward with their concerns if they choose.  

Shore stated that his former organization does not track the specific identity of individuals.  But, he reported, it does track demographic information such as race or gender of the individuals that came to the ombuds office.  This allows the ombuds office to identify trends across the organization.  When the data reveals a pattern in a location or department, an ombuds can bring that issue to the attention of the appropriate leadership without revealing the identity of any of the individuals involved.

Shore also stated that the employee’s perceptions should not be ignored. He said that perceptions are real, and if there are numbers of employees with the same perception, the problems the perception reveal must be addressed.

Shore added that formal employment claims have declined at the company since the launch of Pfizer’s ombuds program. Additionally, he emphasized the cost of an ombuds resolving an employee dispute is a fraction of the time and money spent resolving more formal claims.   

Shore said that, despite their effectiveness, ombuds programs are not common in corporations, with less than 10% of U.S. companies having a program.  

Finally, panelists highlighted training programs for individuals interested in becoming ombuds. Both panelists suggested training from the International Ombudsman Association. Waters also suggested Columbia University’s masters’ program in Negotiation and Conflict Resolution.

To learn more about ombuds, Tim Shore has a video on the CPR Speaks blog. Additionally, for training opportunities, you can access the Columbia Ombuds Office masters’ program here and IOA training here.

The June 16 CPR Employment Disputes Committee video on the panel discussion can be viewed by individuals at CPR members after logging into CPR’s website here.

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The author, entering her second year at Washington, D.C.’s Howard University School of Law, was a CPR 2021 Summer Intern.

[END]

Part I: How Workplace ADR Will Evolve Under the Biden Administration

By Antranik Chekemian

Anna Hershenberg, Vice President of Programs and Public Policy & Corporate Counsel, welcomed an online audience of nearly 200 attendees for the CPR Institute’s webinar “What Labor and Employment ADR Will Look Like Under a Biden Administration?” The Feb. 24 webinar was presented jointly by CPR’s Employment Disputes Committee and its Government & ADR Task Force.

This is the first of two CPR Speaks installments with highlights from the discussion.

Hershenberg shared background information for attendees who were new to CPR, and reviewed CPR activities. [Check out www.cpradr.org for future public and members-only events, including the March 25 program on Managing Conflict in the Workplace Remotely. For information on access and joining CPR, please visit CPR’s Membership webpage here.]

Hershenberg then turned the program over to Aaron Warshaw, a shareholder in the New York office of Ogletree, Deakins, Nash, Smoak & Stewart, who is chair of CPR’s Employment Disputes Committee. Warshaw described the Employment Disputes Committee as “made up of in-house employment counsel, management-side attorneys, employee-side attorneys, and neutrals. Throughout its long history, the committee … [has provided] a platform for all of the stakeholders to come together and explore ways to resolve disputes in employment matters,”.

Last year, the committee presented a panel discussion about COVID-19-related employment claims. (Video available here.) There was also a panel discussion on mass individual arbitration claims during last year’s CPR Annual Meeting in Florida.

Warshaw also noted that the committee is currently working on soon-to-be-released administered employment arbitration rules, and a workplace disputes programs. “There is also an active committee currently revising CPR’s Employment-Related Mass Claims Protocol,” he said.  The release of these projects will be announced at www.cpradr.org and on social media.

Warshaw then introduced the panel moderator, Arthur Pearlstein, who is Director of Arbitration for the Federal Mediation & Conciliation Service, a Washington, D.C.-based independent agency whose mission is to preserve and promote labor-management peace and cooperation. He also directs FMCS’s Office of Shared Neutrals and has previously served as the agency’s general counsel.

Pearlstein opened the conversation stating that “Joe Biden and Kamala Harris ran a campaign that reflected a closer alignment with organized labor than I think we’ve seen in a very long time.”

Pearlstein pointed out the remarks made by President Biden a week ahead of the CPR program, where the president called himself a “labor guy,” and referred to labor people as “the folks that brung me to the dance.” Pearlstein, however, noted that Biden “did hasten to add, ‘There’s no reason why it’s inconsistent with business-growing either.’”

Pearlstein further said that even though it had been just a month since the inauguration at the time of the panel discussion, already dramatic steps had been taken.  He cited the firing of the National Labor Relations Board’s general counsel.

The president has also issued a number of executive orders and halted some regulations. “He definitely wants to be seen as a champion of worker rights,” said Pearlstein.

Pearlstein added that Biden backs “the most significant piece of labor legislation since perhaps Taft-Hartley Act in 1947, . . . the PRO Act, that would dramatically change the landscape in the labor relations world in a way that’s very favorable to unions.” See Mark Kantor, “House Passes ‘PRO’ Act, Which Includes Arbitration Restrictions,” CPR Speaks (March 10) (available at https://bit.ly/38u5w87).

Biden also supports the FAIR Act which, if passed, could end mandatory employment arbitration, said Pearlstein, adding that Covid-19 in the workplace and the rights of gig workers are also important administration considerations. See Mark Kantor, “House Reintroduces a Proposal to Restrict Arbitration at a ‘Justice Restored’ Hearing,” CPR Speaks (Feb. 12) (available at http://bit.ly/3rze7y1).

Pearlstein introduced the panelists.

  • Mark Gaston Pearce is a Visiting Professor and Executive Director of the Georgetown University Law Center Workers’ Rights Institute. Formerly a two-term board member and chairman of the National Labor Relations Board, Pearce previously taught at Cornell University’s School of Industrial and Labor Relations.
  • Kathryn Siegel is a shareholder in Littler Mendelsohn’s Chicago office, representing employers in matters of both employment law and labor relations before federal and state courts and federal agencies like the NLRB and the Equal Employment Opportunity Commission, as well as state agencies.

Mark Kantor started off the conversation by focusing on two general areas:

a) the prospects for legislative change in the Congress for arbitration of employment and labor issues; and

b) the prospects for regulatory measures by independent or executive agencies in the absence of new legislation.

Kantor pointed out that the Forced Arbitration Injustice Repeal (FAIR) Act was reintroduced in the House and the Senate. The House Committee on the Judiciary held a hearing on the matter on Feb. 11.

He noted that, in the previous Congress, the legislation passed the House of Representatives by a 225-186 vote–all Democrats plus two Republicans. When it reached the Senate, however, “it went nowhere,” he said. “Not surprising,” he said, under Republican control, “There were no hearings, there were no committee markups, no committee activity, and the FAIR Act certainly never reached the floor of the Senate.”

In the current Congress, however, he noted, “We can expect the FAIR Act to pass the House of Representatives again, and then go to the Senate. Matters in the Senate might be a little different than they were in the last Congress. We can . . . expect committee activity, hearings, possibly a markup, maybe getting the legislation to the floor of the Senate.”

He said that Senate floor challenges exist for the legislation, because substantive measures are subject to a filibuster. Overcoming a filibuster requires 60 votes.

He added that Republicans are united in their opposition to the FAIR Act as it currently stands. Moreover, trying to avoid the filibuster by altering Senate rules to eliminate the filibuster runs into the problem that there are at least two Democratic Senators who will oppose that: Sen. Joe Manchin, from West Virginia, and Sen. Kyrsten Sinema from Arizona. Therefore, he said, “overriding a filibuster seems highly unlikely.”

A way to avoid the filibuster is budget reconciliation, said Kantor, which is the route that was  taken for the Covid-19 stimulus legislation. He noted, however, that the FAIR Act’s anti-arbitration provisions are unlikely to fall within the scope of budget reconciliation. He further explained:

That means there are very few formal ways to avoid the filibuster. Some people have suggested that Vice President Harris might simply override a parliamentary ruling that the legislation is outside the scope of budget reconciliation. That is also not likely to go anywhere, because Senators Manchin and Sinema will not support that. Consequently, you don’t have 50 votes out of the Democrats and you’re certainly not going to get any Republican votes to reach the threshold to allow Vice President Harris to make that decision.

Kantor then noted that there could still be other prospects for passage:

  1. Appending the FAIR Act or other legislation to a “must pass” piece of legislation:  “That’s exactly how restrictions on arbitration for consumer finance and securities arbitration, and whistleblower protections, was passed as part of the Dodd-Frank Act [in 2010], which did get 60 votes in support, because it was ‘must pass’ legislation,” he said.

  2. Narrow legislation: Kantor noted that during the Feb. 11 hearing, “the ranking minority member of the House Judiciary Committee, Rep. [Ken Buck, a Republican] from Colorado, did signal an interest in supporting two narrow areas of restriction. One was for sexual harassment and racial discrimination, and the other was to override non-disclosure agreements for those two types of disputes.” Kantor added that Buck’s support sends a signal that Republicans on the Senate side also may be “open to focus targeted legislation, aiming at those two narrow areas.”

Kantor also pointed out that a provision in the National Defense Appropriations Act, which is renewed annually, “prohibits mandatory pre-dispute arbitration for sexual harassment and Title VII claims under procurement contracts in the national defense area and subcontracts for those procurements. That is not controversial in the national defense contracting community.”

But the bottom line here, he said, is that the filibuster will determine whether the FAIR Act or any of the other pieces of legislation like the PRO Act, which contain restrictions on pre-dispute arbitration for employment and labor, have a chance of Senate passage.

On regulatory measures, Kantor pointed out that the 2018 U.S. Supreme Court Epic Systems Corp. v. Lewis decision “set a very high barrier to utilizing preexisting general statutory authority for administrative agencies, independent, or executive agencies. It said that in order to prevail, the claim must show ‘clear and manifest’ intention to displace the Federal Arbitration Act.”

He continued: “Congress would be expected to have specifically addressed preexisting law, such as the Federal Arbitration Act. That meant ‘no’ for the [Fair Labor Standards Act], ‘no’ for the [National Labor Relations Act], and in subsequent court decisions, also ‘no’ for Title VII, [the Americans with Disabilities Act], [and the Age Discrimination in Employment] arguments.”

As a result, he added, one “can’t generally rely on pre-existing labor relations legislation to override mandatory pre-dispute arbitration agreements.” But Kantor provided two possible avenues agencies could explore in order to not run into an Epic Systems problem. He explained:

One is that you could avoid Epic Systems by focusing on the prohibition of class procedures, and prohibiting a prohibition of class procedures in any forum–that would be litigation and arbitration, and therefore would be nondiscriminatory. Indeed, the Epic Systems decision says, in essence, the Federal Arbitration Act sets up a nondiscrimination approach to whether or not other acts can be utilized to prevent arbitration. If it’s focused only on a fundamental attribute of arbitration, then there might be conflict preemption by the FAA. On the other hand, if it spreads more generally, there might not be.

The second avenue would be to look at nondisclosure agreements as Rep. Buck mentioned during the Feb. 11 hearing. Kantor added that the FAIR Act covers employment, civil rights, class action, antitrust legislation, and consumer disputes. If passed, it would also prohibit pre-dispute joint-action waivers of those disputes in any forum.

* * *

Mark Gaston Pearce’s highlights focused on what is to be expected from the National Labor Relations Board with the Biden Administration.

Pearce started off with a focus on the composition of the five-member NLRB. by pointing out that even though Biden is in office, the majority of the NLRB is still Republican appointees, and that this will not change until August 2021.

He then discussed some of the NLRB cases. “There is a lot to be undone by the Trump board since the Trump board did a whole lot of undoing itself,” he said. He explained: “Among those things that the Trump board did was weakening the election reforms that were made in 2015,” said Pearce.

He explained that the Trump board changed union election rules by providing employers an increased ability to challenge and litigate certain issues prior to the election, and increased the length of time between the filing of a petition and the election date. “They were mandating that there should be a certain minimum time period to pass before an election,” he said.

Moreover, the Trump Board “lengthened the time period for an employer to serve a voter list and lengthened the time period for which an election is to be held if there was going to be a challenge to the [NLRB] Regional Director’s decision,” he said. [Among other things, Regional Directors are empowered to administer union elections.  See the NLRB’s Organization and Functions, Sec. 203.1 (available at https://bit.ly/3ls48Ij.]

Pearce explained, “All of those provisions and a few more were struck by a [federal] district court judge once [they] went into effect. The basis for . . . striking . . . those provisions was that the board had determined that these actions were strictly procedural, and therefore under the . . . Administrative Procedure Act, they were not obliged to go through the full notice and comment requirements.” The district court decision, however, has been appealed and it is currently pending before the D.C. Circuit Court of Appeals, he said.

Pearce added that it is unlikely a decision will be issued before a new majority is in place. He noted that “it’s very likely that a new majority will withdraw that appeal and those provisions of the new rule will never see the light of the day.”

Pearce said MV Transportation standards–from a 2019 NLRB decision on whether an employer’s unilateral action is permitted by a collective-bargaining agreement—will affect  arbitrators. In the case, he explained, the NLRB abandoned a standard requiring the employer to bargain over any material changes to a mandatory subject of bargaining unless the union gave a “clear and unmistakable waiver” of its right to bargain on the changes. The new standard is based on the “contract coverage.”

The “clear and unmistakable waiver” standard, Pearce explained, generally hindered an employer’s ability to make changes, so instead the board adopted the broader contract coverage standard for determining whether unionized employers’ unilateral change in terms and conditions of employment violated the National Labor Relations Act.

Pearce predicted that “MV Transportation will be revisited because the outgrowth . . . has been that unions, fearing that their position would be waived, are negotiating contracts with so many provisos or are likely to negotiate contracts with so many provisos in it that contract negotiations have become fairly untenable.”

He noted, however, that “with respect to arbitrators, there was always going to be an issue of whether or not, in fact, there is truly a contract coverage for the change that is being proposed,  and I don’t think parties are going to want to constantly go to arbitration over every little thing that they plan on doing.”

Pearce then discussed recent developments in the area of higher education. He noted that there was a proposed rule that graduate students not be considered as employees under the National Labor Relations Act. He added, however, that it was unlikely for that rule to be adopted as the majority will likely object to such status. He said he predicts that there is going to be an “increase in petitions filed for graduate student bargaining units in the universities.”

“On the other hand,” Pearce explained, “[Last year’s NLRB decision] Bethany College, which reversed [a 2013 board decision,] Pacific Lutheran, . . . has resulted in a policy that has emanated from the courts that religious universities do not have to show much to consider themselves to have a religious bent and direction and therefore exclude faculty from being able to unionize.”

He directed attendees to the recent NLRB General Motors decision. “General Motors changed the standards with respect to offensive speech . . . during the course of protected concerted activity,” he said. Pearce added that cases involving sexist and racist remarks set on the picket line is an area that should not have received protections under the NLRA, though he said he backed the board’s decision in the case.

* * *

Antranik Chekemian is a second-year student at New York’s Benjamin N. Cardozo School of Law, is a CPR 2021 intern.

* * *

You can read the rest of Antranik Chekemian’s report on the CPR seminar at Part II: More on Workplace ADR Under the Biden Administration (April 19), and Part III: Deference Change–Analysis of a Shift on a Labor Arbitration Review Standard (April 26).

[END]

#CPRAM21: Managing Workplace Conflicts, On-site and Remote

If you missed the 2021 CPR Annual Meeting in January—the first free public meeting held online in the organization’s 40-year history—the videos are being posted on CPR’s YouTube Channel. While additional videos will be posted for CPR members only, the first, linked here on CPR Speaks, is open access and features the keynoters, CNN Anchor and Chief Political Correspondent Dana Bash and General James Mattis, who is former U.S. Defense Secretary. Click the Subscribe button at YouTube for alerts and for more CPR content. For information on full access and joining CPR, please visit CPR’s Membership webpage here.

By Antranik Chekemian

Kimberley Lunetta, who represents management in employment matters as of counsel at Morgan Lewis & Bockius, moderated a third-day CPR Annual Meeting panel on state-of-the-art best practices for addressing and resolving workplace disputes. The panel mainly concentrated on managing employees and disputes in the current remote environment, and how to set up an ADR program in order to prevent and resolve conflicts.

The Jan. 29 session included four panelists:

  • Alfred G. Feliu, who heads his own New York firm, is a longtime panelist for CPR Dispute Resolution and the American Arbitration Association’s commercial and employment arbitration and mediation panels. He is past chair of the New York State Bar Association’s Labor and Employment Law Section and a fellow of the College of Commercial Arbitrators and the College of Labor and Employment Lawyers.
  • Wayne Outten is chair and founder of New York’s Outten & Golden LLP, which focuses on representing employees. He has represented employees for more than 40 years as a litigator. He has long advocated for using mediation in employment disputes. His practice focuses on problem solving, negotiating, and counseling on behalf of employees.
  • Cheryl M. Manley is a veteran labor employment attorney with more than 25 years of  experience, and since 2005 has been at Charter Communications, where she is senior vice president and associate general counsel of employment law, leading the broadband/cable operator’s Employment Law Group.
  • Andrew J. Weissler is a partner in the labor and employment group of Husch Blackwell. He is a member of the firm’s virtual office, the Link, based in Bloomington, Ill. Weissler advises and represents public and private clients on workplace issues involving difficult personnel decisions.

Feliu and Outten are on a subcommittee of CPR’s Employment Disputes Committee that is working on a model workplace disputes program, along with a new version of CPR’s Employment Dispute Arbitration Procedure to be issued soon.

A poll conducted at the beginning of the panel showed that remote working was new for most of the participants.

Lunetta launched the discussion by asking Feliu about the threshold questions employers should ask themselves when considering an ADR program.

If the principal goal is avoiding litigation, responded Feliu, then employers “are really focusing on processing existing or incipient claims.” As a result, he said, employers “are going to focus more on arbitration–on ending up with a process that brings an ultimate result.”

But if the employer’s goal is more on problem solving and identifying tensions before they become disputes and the employer views conflict resolution as a strategic imperative, then the alternative approach of problem-solving should be embraced, he said. Here, the focus is different than pure litigation avoidance. Said Feliu, “Litigation avoidance or reduction of legal costs will be part–will be an effect, hopefully–of the problem-solving process but wouldn’t necessarily be the goal.”

This approach would also help the organization become more competitive, he said–to work more constructively and efficiently while, as an after-effect, avoiding litigation.

Feliu explained, “How do you do this? You do this is by opening up lines of communication, by necessarily undercutting to a certain extent the chain of command. You’re empowering employees to come forward with their disputes at whatever level and whatever the nature. And by doing that, you are creating a different kind of an organization that is less hierarchical, less structured, and more fluid.”

Wayne Outten added that ADR is ideal for workplace disputes. Because there already is an important relationship between both sides and the relationship is typically continuing, said Outten, it “is a perfect place for identifying problems and solving them early on.” He then presented two approaches that companies can embrace for dispute resolution procedures, the legal mentality and the human resources mentality.

The legal mentality, said Outten, is, “Let’s find a way to avoid lawsuits and to maximize the chances that we will win them with the least possible costs.” He said the HR approach is better, with goals of making employees happy and providing an environment where workers can be productive and focus on their jobs in an effective and efficient manner.

With the HR approach, Outten said, a program should start identifying problems at the earliest possible stage. “If a problem ripens into a dispute,” he said, the goal is “resolving the dispute in the simplest, quickest way possible and escalating only as and when you need to.” The HR approach also serves the lawyers’ perspective as it “tends to avoid disputes ripening into the possibility of litigation.”

Lunetta then asked the panelists whether having employees working from home in a number of states, possibly new states to the company, would affect the design of an ADR program.

Al Feliu responded that working from home would not alter or change the program itself, but it increases and amplifies “the need for it to be enforceable across 50 states and 50 jurisdictions.”

Wayne Outten discussed some of the positive and negative changes regarding the nature of workplace disputes that come with remote working. On one hand, the kind of disputes that arise from being in the same place, and having interpersonal reactions, presumably will be reduced with the increase in virtual offices, such as sexual harassment claims and bullying.

“On the other hand,” he said, “the opportunities for disputes are exacerbated because you don’t have as much free-flowing communication, and the ability to address things face to face.” Outten added, “Disputes may fester.”

From the management-side perspective, Husch Blackwell’s A.J. Weissler noted that the HR model Outten mentioned “has changed quite a bit in this remote work environment.” If the employees are typically working remotely, then having difficult conversations over the Internet should be acceptable, he said.  

But if a human resources or corporate employee is working from home while the business has essential workers who have been going to the employer’s worksite, then, says Weissler, “there’s a real disconnect there” that can make the on-site workers feel and sense that the employer is not in touch with the employee.

Moderator Kimberley Lunetta then asked panelists whether CPR has resources that can help employers think through these issues if they are considering any of the dispute resolution options that were discussed.

Outten said that this was the reason for CPR to be founded decades ago, with the goal of helping companies figure out how to avoid and resolve disputes.

Outten announced that CPR and its Employment Disputes Committee will be publishing a new set of rules for administered employment dispute resolution.  Accompanying the rules will include “draft programs that companies can adopt and adapt for their own use, which have within them the various different stages that employers can consider […] including things . . . [like] informal dispute resolution and problem solving, . . . open-door policies that invite people to take their problems up the chain of command,” ombudspersons, peer review processes and “all the way up to mediation which . . . is perfectly suited for employment disputes of all kinds.”

The conversation then revolved around the pluses and minuses for an employer of establishing a mandatory arbitration program.

“In reaching the decision that our arbitration program was going to be mandatory,” responded Charter Communications’ Cheryl Manley, “one of the factors that went into play was either reducing the litigation costs, or perhaps not having to deal with court litigation.” She mentioned that her company’s program was built to resolve issues in a timely manner and on an individualized basis.

She further added that her organization has many steps before getting to the arbitration phase to resolve the employment issue. And “when it finally does get to arbitration, we believe that there’s some certainty,” said Manley, “We believe that both parties have some skin in the game, in terms of selecting the arbitrator and primarily, it’s cost effective and efficient.”

Outten then answered a question about CPR’s employment ADR program and how it can help employers not only set up, but also ensure long-term success.

Outten reiterated the program’s strength in early-stage problem solving and early dispute resolution, and added that the program offers room for flexibility and adaptability in different workplaces.

Mediation with a third-party facilitator, he said, “can be extremely valuable and beneficial. It gives the parties an opportunity to air their grievances.” When it comes to arbitration, he said, every successful workplace ADR program really needs to comply “at a minimum,” with due process protocols.”

He then presented several key features of the due process protections (which CPR has adopted here), which include:

  • “The employee isn’t required to pay more than they would pay if they were going to file in court.”
  • “The arbitrator has the authority and power to provide any remedy that a court can provide so that there’s no takeaway of remedies for the affected employee.”
  • “The employee has a fair opportunity to pick the decision maker–the arbitrator–especially given the binding power of the decision of this person to resolve the dispute.”
  • “The employee has to have a full and fair opportunity to gather information in order to present the case and . . . [any] defenses.”
  • “The employee needs to have an opportunity to have counsel of his or her choosing.”
  • “The hearing itself should be reasonably convenient . . .  so the employee doesn’t have to go a long distance to have his or her day in court.”
  • Finally, “the arbitration should end with a reasoned decision, so the parties know what the arbitrator took into account, what the findings were on the evidence, and what the legal conclusions were in determining” the decision.

A.J. Weissler added that “there are great legal reasons” not to “cram down” arbitration in a workplace disputes program, citing fairness. He said that arbitrator selection is an important factor in presenting a fair process, with a say for the employees.

Al Feliu noted that there is a dearth of diverse panelists, but major providers have made strides and continue to work on the problem to enhance and ensure fairness.

Cheryl Manley agreed with the comments, and emphasized that panelists need to reflect the workplace population.

Manley discussed Charter Communication’s Solution Channel, which she described as a 2017 program to compel arbitration use—a mandatory program for newly signed-on employees, with about 10% of the company’s 90,000 employees opting out when it was launched.  She reported that the complaints are restricted to legal claims—non-legal disputes are addressed in other ways–that are submitted through a third-party vendor which create a record over the claim. She said the American Arbitration Association is the provider.  The company absorbs the AAA filing fees and the arbitrator costs. If either side is unsatisfied with the panel, they return to the AAA for more choices.

Weissler says arbitration should be part of any dispute resolution system but if it’s made mandatory and employees are forced to use it, he said, it is counterproductive and it creates problems going forward due to the “asymmetrical” views.

Weissler said he encourages mediation as a best option. He said he is skeptical of programs that outline steps that do not allow a course of mediation to be developed.

Feliu says he has been mediating for 30 years and familiarity has grown during his period of practice after skepticism.  He agreed with Weissler’s points, but noted that mandatory mediation in New York federal court, where he said he would have expected resistance—mandatory is counterintuitive, said Feliu—it has been just as successful as voluntary mediation over about the past 10 years.

Feliu said sometimes there is grumbling but mostly, when parties get to the bargaining table, they try to settle. And he said that while joint sessions are fading, flexibility is needed.  “Every mediation is different,” he said.

Wayne Outten said that he shared Al Feliu’s experience.  In the mid-1980s, he said, the plaintiffs’ bar “viewed this newfangled process as a conspiracy to take away their rights, and I soon discovered that was not necessarily the case and became a big advocate.”

Over the past 35 years, said Outten, mediation “has become quite normal.” He echoed Feliu again,  noting that when parties attempt mediation in good faith, it is successful.

Even in situations with a lot of open issues, he said, mediation “has a very high success rate, . . .  and is always worth trying.”

Cheryl Manley said that pre-pandemic, her company didn’t want anything done virtually or remotely—all depositions, mediations and arbitration hearings were done in person, exclusively.  The change was swift, she said. “Fast forward seven, eight, nine months, . . . when we finally emerge from this pandemic, we aren’t going to go back to all depositions in person, all mediations in person or hearings,” said Manley, adding, “In fact, I think that there is no reason . . . to start putting people back on planes traveling all over the country.  It is expensive. It’s time consuming.  And it is not efficient. “ She said that the “only issues” are “the occasional technological” problems.

A.J. Weissler said he has participated in virtual matters frequently during the pandemic, and found “an incredible benefit.” Having the people resources ready on video, whether from home or for those back in their offices, has “been an incredible thing,” he said, adding that he strongly supports virtual mediations.

Wayne Outten said he always has had a concern whether real decision makers would be in the mediation room.  “Now with virtual mediations,” he said, “that problem can be more readily addressed.”

Al Feliu said he has only done virtual mediations since his first in March.  “All of the impediments, and all of the arguments against them, have been rebuffed, “ he said. For example, he explained, he can evaluate credibility better on close-up video than across a bargaining table.

Feliu conceded that there is a different feel in an in-person gathering where people have committed to the process.  That intensity, he said, isn’t present where people are sitting on their couches, are more relaxed, with their dogs nearby.  “It’s just a different process,” he said.  “I don’t have the shrieking episodes. I don’t have a lot of emotions.  Is it good or bad? It’s just different.”

The result, he said, has been that he isn’t settling cases on the first day as much as he did at in-person mediations.

Addressing audience questions, Al Feliu said he discusses confidentiality with the parties with heightened concerns, noting that a potentially serious issue could be where extra people are present, and not visible on screen, as well as individuals texting on the side. “These are all serious concerns we need to get equilibrium on” going into the mediation, he said.

* * *

The author, a second-year student at New York’s Benjamin N. Cardozo School of Law, is a CPR 2021 intern. Alternatives editor Russ Bleemer contributed writing and research to this report.

[END]

#CPRAM21: Too Much or Not Enough? The Arbitrator Disclosure Issue, Analyzed

If you missed the 2021 CPR Annual Meeting in January—the first free public meeting held online in the organization’s 40-year history—the videos are being posted on CPR’s YouTube Channel. While additional videos will be posted for CPR members only, the first, linked here on CPR Speaks, is open access and features the keynoters, CNN Anchor and Chief Political Correspondent Dana Bash and General James Mattis, who is former U.S. Defense Secretary. Click the Subscribe button at YouTube for alerts and for more CPR content. For information on full access and joining CPR, please visit CPR’s Membership webpage here.

By Antranik Chekemian

Here are notes on the Jan. 28 closing panel of the second day of CPR’s 2021 Annual Meeting. Moderator Deborah Greenspan, a Washington, D.C. Blank Rome partner focusing on mass torts and complex disputes, served as moderator for the Ethics session.

She introduced the panel, starting with Dana Welch, an arbitrator for nearly 20 years who is based in Berkeley, Calif. Welch focuses on complex commercial and employment matters. She is a fellow of the Chartered Institute of Arbitrators  and the College of Commercial Arbitrators, where she is an executive committee member. Before she became an arbitrator, she was the general counsel of a San Francisco-based investment bank, and a Ropes and Gray partner.

The second panelist was David Pryce, the managing partner of Fenchurch Law Ltd. in London, which is the first U.K. law firm to focus exclusively on representing policyholders in insurance disputes. His practice focuses primarily on construction industry risks. Wherever possible, said Greenspan, Pryce tries to approach disputes in a way that maintains or ideally strengthens the commercial relationships between those involved

The third panelist was Adolfo Jimenez, a partner in the Miami office of Holland and Knight.  He is a litigation attorney focusing on international disputes. He heads the firm’s International Disputes team, and he is chair of the Miami International Arbitration Society.

Greenspan opened by discussing the ethical challenges faced in arbitration, focusing on disclosure, in a session that provided Ethics continuing legal education to qualifying attendees. The panel’s first topic was the issue of repeat players, where an arbitrator is repeatedly selected or appointed by a particular entity or a law firm.

Pryce started off the conversation by presenting a recent U.K. Supreme Court case, Halliburton v. Chubb. He described the case’s background for the online audience.

Halliburton Co. had provided services for Transocean Ltd., the owner of Deepwater Horizon, the Gulf of Mexico oil rig that exploded in 2010.  Halliburton faced various claims along with oil company BP and Transocean. They were all part of the same proceedings. Halliburton settled those claims against it for about $1.1 billion.

Halliburton made a claim under the general liability policy it had with insurer Chubb. Chubb refused to pay the claim on the basis that Halliburton had entered into settlements that were unreasonable. A dispute ensued and the general liability policy provided for an ad hoc London arbitration with three arbitrators, one arbitrator to be chosen by each of the parties and a third arbitrator chosen by the party-appointed arbitrators.

If the arbitrators couldn’t agree, the third arbitrator was to be appointed by the High Court in London. In front of the High Court, each of the parties put forward several candidates. After a contested hearing, the High Court chose Chubb nominee Kenneth Rokison QC, an arbitrator in Reigate, U.K. Rokison was “a regular arbitrator in uniform arbitrations,” explained Pryce, “and Halliburton’s perception . . . was that he was someone that is generally appointed by insurers rather than policyholders.”

Prior to him being appointed, Rokison disclosed relevant points to the proceedings. Rokison said that he previously acted as an arbitrator in several other arbitrations including Chubb. He acted as a party-appointed arbitrator by Chubb and he was currently acting as an arbitrator in relation to references that included Chubb.

The High Court didn’t regard any of those appointments as being an impediment to his appointment in the Halliburton-Chubb dispute and they didn’t call into question Rokison’s impartiality.

Three months after his first appointment in 2015, Rokison accepted a further appointment by Chubb to act as an arbitrator in relation to a claim against it by Transocean, which as the overall owner of Deepwater Horizon was also facing similar claims to the ones that Halliburton had been facing. The dispute between Chubb and Transocean also related to the reasonableness of settlements which Chubb refused to pay on a similar basis for the reasons it refused to pay Halliburton.

Rokison disclosed his involvement in the Halliburton arbitration to Transocean, but he did not disclose to Halliburton that he accepted the Transocean appointment.

The following year, Rokison accepted another appointment in relation to an arbitration between Transocean and different insurers, and that was not disclosed either.


After finding out about the second and third appointments, Halliburton wrote to Rokison and raised concerns about these appointments.

Rokison responded that it had not even occurred to him that he was under any obligation to disclose the second and third appointments to Halliburton. Halliburton called for him to resign, raising concerns about his impartiality with regard to Chubb.

It’s apparent that Halliburton was just as concerned, explained David Pryce, and perhaps even more concerned, about a second issue–that Chubb would potentially gain a tactical advantage as a result of being able to find out what Rokison’s views were on certain issues, because they would be making submissions in the second arbitration which will be relevant to the decision that Rokison was facing in deciding the Halliburton arbitration.

A High Court claim was issued by Halliburton seeking Rokison’s removal under U.K. Arbitration Act Section 24, dealing with situations where circumstances exist for a justifiable doubt about the arbitrator’s impartiality.

The High Court and the Court of Appeal both dismissed Halliburton’s application, so it went to the Supreme Court.

The Supreme Court made the following key observations in reaching the decision:

  • First, the obligation of an arbitrator to act fairly and impartially is a core principle of arbitration, and under English law, the duty of impartiality applies just as much to party-appointed arbitrators, sole arbitrators, and presiding arbitrators. Presiding arbitrators like Rokison in Halliburton v. Chubb aren’t required to be any more impartial than party-appointed arbitrators–“Everyone is required to be impartial,” explained Pryce.
  • Second, the Supreme Court confirmed that the test under English law to establish whether an arbitrator had a real possibility of biases is an objective test. “When the fair-minded informed observer is looking at that, they should take into account various considerations including the factual matrix of the case , . . the role of the arbitrator in the case, and expectations regarding what an objective observer may take into account,” said Pryce. In that regard, market practices are relevant, but in some areas, overlapping appointments may be more likely to give rise to an appearance of bias than others.
  • Finally, in relation to the arbitrator’s duty of disclosure, the Supreme Court held the disclosures are not a question of best practices and that disclosures can only be made if the parties that confidentiality obligations are owed give their consent.

The key takeaway from this case is that “disclosure is not an option,” said Pryce, because disclosure doesn’t trump confidentiality.

“The unfair advantage is not the same thing as a lack of impartiality,” Pryce said, adding, “There is just no remedy for unfair advantage.” Even though repeat business might suggest bias in some cases, it is going to depend on market practice.

He further added that in some areas like treaty reinsurance, overlapping appointments are commonplace and parties are not concerned as there are repeat users “all the time.”

Pryce added that it is much more challenging when where there is a one-off user in a dispute with a repeated user. “From the perspective of someone who was a policyholder such as Halliburton,” said Pryce, “a one-time user in this situation, against an insurer who’s going to be a repeat user, the Supreme Court decision for me feels a little bit tougher.”

Panelist Dana Welch said, “I’m not sure a U.S court would have reached the same decision.  . . . We take it for granted in the United States that you have to disclose every business relationship that comes to mind.”

She then shared that California’s Judicial Council has enacted a rule that requires that the arbitrators not only have to disclose looking backward, but they have a duty to disclose looking forward. Arbitrators are required to disclose at the time of appointment whether they are willing to take future business from either a party who is appearing in that case or a law firm that is appearing in that case.

If the arbitrator discloses that they can take future business, they can be disqualified at that point if someone objects. Once the arbitrator accepts the possibility of future business, and then proceeds in the future to take that business, they must provide notice to the previous parties and the law firm that they have done so. At that point, the parties have no right to disqualify the arbitrator.

Panelist Adolfo Jimenez also shared that from an ethical perspective, repeat business in arbitration presents two problems that also were identified in the Halliburton case.

“You can have a situation where you’re going to have one party that’s better informed and an arbitrator that’s hearing evidence that is related to two separate cases,” said Jimenez, “but they are related cases that may influence their view while a set of attorneys who aren’t parties to that other proceeding is ignorant of all . . . that evidence, all that information.”

Second, Jimenez noted, is the risk of inappropriate communications. “Simply because you can does not mean that you should,” said Jimenez, noting that there can be as a result of such contacts an erosion of trust in the process, with one of the parties believing that they’re being affected.

Dana Welch also emphasized that the arbitrators should be careful in order to preserve the integrity of the process in the face of repeat business. She said:

There is a financial incentive if you get repeat business.  And for each one of us who serves as a neutral, every time we get repeat business, we really need to think long and hard about whether we can truly serve as a neutral in a proceeding with a law firm that appoints us a lot or a party that appoints us a lot.  . . . What Adolfo said is right: There’s a difference between ‘can’ and ‘should,’ and it’s an extremely important difference in order to preserve the integrity of the process.

After a participant asked about the future of London-based insurance arbitration in light of the Halliburton decision, David Pryce responded that a single decision shouldn’t call into question the city’s role in insurance arbitration.  He said that when there is a situation with a “one-off” buyer of arbitration services and a repeat user of arbitration services, the court should be extra careful not to go for the appointment of someone who is used frequently by repeat buyers.

“It was an unfortunate choice by the High Court,” said Pryce, adding that if that sort of choice is repeated again and again, “it looks like the deck is being stacked against policyholders,” and that would be a problem for insurance arbitration in London. But he added that as a policyholders’ representative, he did not think the deck is usually stacked against his clients.

[For even more on Halliburton, see the latest issue of Alternatives to the High Cost of Litigation: Adam Samuel, “Multiple Appointments, Multiple Biases: The U.K. Supreme Court Does Arbitrator Disclosure,” 39 Alternatives 19 (February 2021) (available directly at https://doi.org/10.1002/alt.21880).

* * *

Moderator Deborah Greenspan then invited panelists to discuss the expectations parties have about the status of a party-appointed arbitrator.

Panelist Adolfo Jimenez started off the conversation by saying that the duty of impartiality permeates throughout the entire U.K. and U.S. legal systems, and that most arbitral institutions require that arbitrators be neutral.

Jimenez also noted, however, that there sometimes are justifications for repeat businesses–for example, specialized arbitration proceedings such as those at the London Maritime Society of Arbitrators, where parties prefer arbitrators that are particularly qualified. When there is a limited number of qualified individuals, repeat business is an option, said Jimenez.

A second justification is to allow for party autonomy.

He further noted that the Code of Ethics for Arbitrators in Commercial Disputes adopted by CPR Dispute Resolution has the assumption that the arbitrators will be neutral. Even in jurisdictions which allow for repeat business, he noted, neutrality is still expected and required.

Panelist Dana Welch also noted an important reality in arbitration. She said, “When a party chooses an arbitrator, even if it’s a sole arbitrator and not a party-appointed arbitrator, all parties hope that the arbitrator is going to rule on their behalf. Therefore, they are looking for somebody who is going to see things from their point of view.”

She further noted that CPR Dispute Resolution rules provide a process for challenging a party-appointed arbitrator if either side believes that a party appointed arbitrator is not neutral. Reading from CPR Administered Arbitration Rule 7.5, she said: “Any arbitrator may be challenged if circumstances exist or arise that give rise to justifiable doubt regarding that arbitrator’s independence or impartiality.  . . .” She praised the rule and its challenge process for when neutrality isn’t observed.

Greenspan then asked the panelists about the ideal steps parties should take when selecting arbitrators.

Welch said she is a strong advocate of both parties interviewing the arbitrators to understand their management style or their approach to the issues.

Jimenez added that one should be allowed to communicate with an arbitrator to make sure that the arbitrator is comfortable with the cases’ technical issues but should not get into discussing the substance or facts of the case, noting that a red line exists in between.

* * *

Moderator Greenspan then asked the panelists on how to deal with the reality that people from different backgrounds and different jurisdictions have different expectations when it comes to ethical challenges.

Jimenez agreed that different jurisdictions have different norms. He suggested that practitioners can look to journal articles and general expectations of limits that are employed for international disputes. He pointed out that “what may be improper or incorrect in one place is going to be perfectly acceptable [elsewhere]–that’s a real challenge when you’re dealing with a cross-border dispute.”

Greenspan then discussed how parties can enhance trust when implicit or explicit biases exist. When arbitrators are appointed by a party, Welch responded, “it would be the height of denial, to say that there isn’t some impetus that you feel or allegiance that you feel to that party. You really have to struggle against that and understand that you’re a neutral in all senses.”

Welch added that arbitrators need to be conscious of the kind of bias that arises when a party picks them just like they need to be conscious of the kind of bias that can arise when they have repeat businesses.

* * *

The next topic of the panel was about disclosures.

Welch first expressed that the level of disclosure is an interesting question in this age “where everything is known about everybody,” and so much information is out already on social networks. The question, she asked, is “How much is there an obligation for us to disclose versus a party to investigate?”

She then presented two cases.

In the first case, an arbitrator ruled against a claimant, and the respondent was a law firm. Afterward, the claimant did an Internet search and revealed a 10-year-old resume of the arbitrator with a recommendation from a partner from the respondent’s firm.  An appellate court decided this was enough to vacate the award.

Welch concluded, “What it shows is that the courts will look at the arbitrator for disclosure rather than . . . say to the parties to investigate that.”

The second case she presented was decided just a month ago, she said. An arbitrator rendered an award against the claimant. The claimant then found on the Internet that the arbitrator was a founding member of GLAAD, an organization supporting gay rights. The claimant then argued that because he was active in the Catholic Church, and because the arbitrator is active in social justice causes like gay and lesbian rights, the arbitrator had an inherent bias against the claimant.

The Court of Appeals rejected this claim, Welch reported, as it could not find any relationship between the claimant’s allegation and facts of the case.  She noted that “even California” has limits on challenging impartiality. Welch concluded:

What you need to draw from these cases is that the main obligation of disclosure is on the arbitrator, not on the parties. You need to disclose everything that comes to mind. If it comes to mind, you should be disclosing it, but you don’t need to disclose who you voted for president, or what you are active in unless there is a specific issue in that case before you.

Fenchurch’s David Pryce said that “there is a dividing line between . . . bias, something that gives the appearance of bias and what is simply just having better knowledge.” Having better knowledge on its own, he said, doesn’t give rise to either risk of or appearance of bias.

He further reflected on Halliburton v. Chubb. The disclosures, which relate to the same party in another “really high-stakes arbitration . . . about sums over a billion dollars” and issues that are almost exactly the same in both arbitrations, “aren’t insignificant things.”

But, said Pryce, “if we get to a situation where arbitrators feel they need to disclose lots of insignificant things, then I think everyone’s time is just going to be wasted unnecessarily.”

* * *

Greenspan presented the ethics panel’s final topic: “If you’re a mediator in a case and then you are later asked [in a case that doesn’t settle] to be an arbitrator, or if you are an arbitrator and then you’re asked to mediate the case,” how should such a situation be approached?

David Pryce said the moves are uncommon in the United Kingdom.  He added that huge challenges for the med-arb, mixed-mode ADR setup exist, because in mediation, parties are hoping to take advantage of the ability to share things with a mediator that they wouldn’t share with their opponent–and certainly not with the person that needs to make a decision about their case where the neutral is acting as an arbitrator.

The next question was about a situation where somebody had assisted an entity with developing its internal resolution guidelines or contractual terms to use to resolve disputes, and then also became the arbitrator or the mediator in a dispute which is affected by those guidelines.  The question was whether this would constitute a problem.

Dana Welch noted that such a situation raises fewer ethical issues as the person only designed the process, as opposed to being involved in a dispute, and that the person does not know confidential information about the dispute—he or she just comes in understanding the process. Welch says that courts have backed such arbitrators but the focus must be on extensive consents after disclosure.

* * *

The author, a second-year student at New York’s Benjamin N. Cardozo School of Law, is a CPR 2021 intern.

[END]

How Litigants View the ADR Options in Courts

By Alice Albl

At the Sept. 17 online CPR Institute Mediation Committee meeting, University of California, Davis, School of Law School Prof. Donna Shestowsky presented her research about the role courts play in encouraging alternative dispute resolution over a trial.

The study revealed that litigants seem to be unaware of ADR options when going to court, although knowing about some of these options—specifically, mediation–improve litigants’ opinions of the court itself.

This lack of awareness stayed relatively consistent among demographics, even among those with legal representation.  

“Repeat player” litigants were less likely than first timers to report uncertainty or confusion whether ADR options were available.

Shestowsky’s research observed the experiences of more than 350 litigants spread among the court systems of three different states.

The first system, in California, allowed litigants to choose between a trial, or opting into mediation or arbitration.

The second system, in Utah, assigned mediation as the default option but allowed litigants to convert their cases into an arbitration or trial.

The third system, in Oregon, statutorily required nonbinding arbitration for cases involving amounts in controversy less than $50,000. Litigants could opt-out by filing a “Motion for Exemption from Arbitration,” or by agreeing with their opposition to enter mediation.

All three court systems posted information online about available ADR programs and kept a list of approved neutrals on file. None required attorneys to educate their clients about the available ADR options.

Litigants in the study took a survey before and after their journey through the courts. The questions sought to gauge litigants’ awareness about relevant court-sponsored ADR programs, whether legal representation affected their awareness, and how awareness of court-sponsored ADR affected litigants’ opinions of the court offering the options.

The data Shestowsky reaped from these surveys revealed some unexpected findings. While roughly half of the litigants were unsure whether mediation and arbitration were available to them, another 20% wrongly stated these options were unavailable.

Without knowledge of the court systems’ sponsorship for mediation or arbitration, litigants most often considered negotiation as a means for dispute resolution, even before the prospect of a trial.  

While about a third of litigants considered mediation, knowing that the method was a court-sponsored option generally improved their opinion of the sponsoring court system.

Arbitration was only considered by about one quarter of the litigants, and knowledge of court sponsorship did little to affect litigants’ opinions of sponsoring courts. Shestowsky attributed this to the possibility that litigants had low opinions of arbitration as an option for their court-filed cases, which aligned with findings from her past research.

Having a lawyer did not make litigants more aware of ADR options, even when those options were offered, or even mandated, by the court system.

Shestowsky pointed out this universally low awareness rate of ADR options as an issue to address among courts, especially given how awareness seemed to improve court favorability.

One possible solution would be rules that require attorneys to properly educate clients about ADR options before engaging the courts, which could be enforced using penalty fees or an affidavit.

Shestowsky also suggested that courts implement “direct education.” This could involve bolstered advertisement of ADR options, a dedicated ADR helpdesk, and periodic information sessions. The professor, who serves as UC Davis School of Law’s Director of the Lawyering Skills Education Program, even envisioned an artificial intelligence-powered digital aide that could recommend options based on litigants’ specific needs.

While Shestowsky cautioned that her research focusing on three court systems may not perfectly reflect the general state of ADR awareness, the consistency of data among the diverse systems could point to a greater trend. To gauge this, the professor recommended that courts across the nation buck the trend of measuring success for ADR programs by their usage rates, and first look to their awareness rates by surveying those who do not use their ADR programs.

* * *

Donna Shestowsky previously discussed her research at “New Research Sheds Light on How Litigants Evaluate the Characteristics of Legal Procedures,” 34 Alternatives 145 (November 2016) (available at https://bit.ly/2ScA71w), which adapted and updated material from Donna Shestowsky, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study,” 49 U.C. Davis L. Rev. 3 (2016) (available at http://ssrn.com/abstract=2729893).

* * *

The author, a CPR Institute Fall 2020 intern, is a second-year student at Brooklyn Law School in New York.

It’s About the Brain: Jeremy Lack on the Neuroscience of Dispute Resolution

By Alice Albl

“You hear in movies ‘follow the money’; in my world I try to ‘follow the oxygen and glucose,’” neutral Jeremy Lack told an online group as a preface to his theory of mediation and resolution.

Lack presented his research at the latest installment of the Conversations in Conflict series hosted by the New York Law School’s Alternative Dispute Resolution Skills Program on Aug. 12.

Lack is a veteran practitioner, frequent lecturer, and member of three national bars along with being listed on several neutral panels, including the CPR Institute’s Panels of Distinguished Neutrals. Lack joked that he may be the world’s only quadri-national mediator, being a citizen of Switzerland, the United Kingdom, the United States, and Israel, which may prevent him from being appointed if nationality is a consideration in the selection of neutrals.

Research being carried out at the Swiss Center for Affective Sciences at the University of Geneva forms the basis for Lack’s TRI-O/S model, whereby the brain operates with faster and unconscious, emotional and social operating systems, which precede a slower, cognitive and rational operating system. 

These emotional and social networks serve as rapid triage systems, operating in milliseconds, to influence and shape conscious thinking and decision-making that will take place hundreds of milliseconds later. They are coordinated to minimize wasteful consumption of the brain’s limited resources: glucose and oxygen.

The TRI-O/S model looks at human behavior at three levels, or Operating Systems. “O/S 1” corresponds to emotional patterns of thinking, such as a flare of anger at an unreasonable offer or a rush of excitement when a resolution finally becomes apparent.

“O/S 2” are social patterns of thinking that explain such tendencies as biases, the desire for a comfortable sense of status, and a sense of belonging.

“O/S 3” are rational patterns of conscious thought and decision-making, but that can occur at different levels, such as reflexive (more frugal) thought processes or reflective (more wasteful) thought processes.  When we are tired or our resources are depleted by emotional and social considerations, the brain will be limited to rigid, reflexive pathways.

According to Lack, mediation participants tend to believe they are working mostly rationally, with O/S 3. Yet it is inevitable that the faster O/S’s 1&2 precede and influence what type of rational thinking is possible at the O/S 3 level. Emotions and social influences are always present, even if we are not aware of them.

In the fractional moments before any given cognitive decision is made, all three O/Ss will be activated, but O/S 1 and 2 will precede O/S 3, and influence which neural correlates will receive more oxygen and glucose–for example to avoid danger or obtain a reward. In terms of the limited resources consumed by these operating systems, this means that O/S 3 will always be last in line — granted only leftovers to cobble together into a rational thought.  We lack the ability to distinguish when we are thinking reflexively or reflectively.

Initial subjective stimuli will always affect mental activity and objectivity, and the capacity to think and take optimal decisions. Feeling stressed or treated unfairly will hinder cognitive abilities.  This theory supports the maxim that the more tired or angry a person is, the less rational they are likely to be.  The same is true for social influences, e.g., feeling excluded or treated unfairly.

Lack says he believes that other such maxims can be revisited using the TRI-O/S theory. Initial emotional stimuli (such as fear or reward) and social stimuli (such as feeling “in-group” as opposed to “out-of-group”) can activate different parts of the brain, leading to different patterns of downstream rational thought.

The amygdala, or anterior insula, may consume more oxygen and glucose in some situations than others, limiting the way the prefrontal cortex can be activated. The brain prefers to follow established networks of thinking that are partly genetically and partly environmentally shaped, which Lack calls “mental heuristics.”

A mental heuristic of the socially-oriented O/S 2 type that labels others as being “in-group” (e.g., a friend) switches on empathy circuits that are unavailable to people who have been labeled as “out-group” (e.g., strangers).  This triggers different forms of pro-social and anti-social patterns of behavior that are innate to all human beings. 

Fortunately, these networks are plastic and malleable, and skilled mediators can activate pro-social heuristics and weaken anti-social ones. This explains another piece of common knowledge — that humans are highly sensitive to the feelings of friends or loved ones, but can be equally cold and insensitive when it comes to the feelings of strangers or “others.”

The advantages of a shared meal with the parties the night before a mediation or conducting talks around a round, as opposed to a rectangular, table may seem slight, but they can trigger powerful “in-group” vs. “out-of-group” unconscious heuristics, which will greatly influence cognitive and rational capacities.

The greater ability to empathize generated by these small acts of behavioral priming can help stimulate cooperative behavior and weaken competitive behavior in ways that the O/S 3 is simply not aware of, greatly influencing the quality of rational thought, and the brain’s ability to be creative in finding better solutions for settlement.

As the online event drew to a close, an audience member asked whether the TRI-O/S model may do away with traditional conceptions of law and justice, instead tethering everything to biology and emotional or social instincts. Lack’s response was a shrug, noting, “We are still in the dark ages of understanding neurosciences and what is really happening in the human brain.  What I can say for the moment is that justice is not devoid of emotion or social influences.” He added, “The rule of law invokes a lot more subjective variables than we realize.”

But these variables may be understood and skillfully used by a mediator willing to apply neuroscientific approaches to trigger innate heuristics that can optimize group behavior and the quality and depth of thinking, focusing on possible mutual “rewards” as opposed to “losses.”

Lack encourages mediators to participate in and support research in this field and use its teachings to broaden their tools of practice.  He concluded by citing a recent article to be published in the September 2020 edition of Cortex magazine, which apparently demonstrates for the first time, with fMRI data in support, that mediation really does stimulate different thought processes in the brain as compared to negotiation, leading to higher settlement rates and higher satisfaction ratings. 

While the research was done on romantic couples, its findings should equally apply to commercial disputants. We are all using the same hardware. It is the operating systems we are running on them and how they interact with one-another that mediators can influence.

* * *

For more on Jeremy Lack’s theory of ADR, see his 2012 publication with international mediator François Bogacz, “The Neurophysiology of ADR and Process Design: A New Approach to Conflict Prevention and Resolution?”, 34 Cardozo J. of Conflict Resolution [Vol. 14:33] 33-80 (2012) (available at https://bit.ly/3iKzMhV). For the new Cortex article describing the benefits of mediation over negotiation, see https://bit.ly/2YmfSlB. Recordings of NYLS’s Conversations in Conflict Resolution series, including Lack’s presentation, are available at https://bit.ly/2Fg5Mf9.

* * *

The author, a CPR Institute Fall 2020 intern, is a second-year student at Brooklyn Law School in New York. This article was updated with clarifications and further explanation by Jeremy Lack on Aug. 21.

[END]

Invitation for an Open Dialogue

A letter and invitation from CPR President & CEO, Allen Waxman

Dear CPR Members and Distinguished Neutrals:
Like many of you, we are frustrated, concerned, angry and sad: because of the grotesque inhumanity evidenced in the death of George Floyd; because the names of George Floyd, Breonna Taylor and Ahmaud Arbery are just the latest in a terrible list of fellow human beings who have had their breaths tragically snuffed out; because of the destruction with which some have responded to that inhumanity; because of the evident and understandable pain of so many; because we are so disconnected; because we haven’t earned that connection. Yet, as a community, we also believe that conflict must breed resolution, and resolution must reinforce our purpose. Our purpose has to be to combat racism, discrimination, implicit bias and injustice. We must commit to the small steps reflected in our initiatives to recruit, promote and select diverse neutrals. And, we must also commit to the giant leaps of trust, courage and sacrifice necessary for change to become reality.  Let us remember the observation that Andrew Young shared with our community in his 2018 keynote address at CPR’s Annual Meeting:  “…in every conflict there is a streak of humanity.”  

This Friday, June 12th, at 12:30 ET, via Zoom, let us come together and connect our humanity. No agenda just a safe space. Let’s open a dialogue together to share.  Our conversation will be moderated by Judge Timothy Lewis, CPR neutrals Erin Gleason Alvarez and Gail Wright Sirmans, and CPR board members: Bayer U.S. General Counsel Scott Partridge, Winston & Strawn partner Taj Clayton, and Debevoise & Plimpton partner John Kiernan.                

For CPR Members and Distinguished Neutrals Only
Contact Richard Murphy at rmurphy@cpradr.org for your registration link

Acting Naturally in a Virtual Office

By Heather Cameron

On Thursday, May 28, 2020, the CPR Institute hosted the second in its series of presentations on conflict in closed spaces entitled “Positive Culture in the Virtual Workspace.” The webinar was led by James Traeger, Director, and Carolyn Norgate, Principal Consultant, of Mayvin, a U.K.-based management consulting firm focusing on organizational development and design.

Mayvin has been operating as a “virtual” organization since long before the COVID-19 outbreak forced so many businesses to move online, the principals explained in the CPR-sponsored webinar. James and Carolyn, however, said they prefer to think of it as “remote,” rather than “virtual” working because the interpersonal connections built and maintained are still very much real.

Started in 2010 on the heels of the financial crisis, Mayvin works with organizations to help foster development and by increasing leadership’s understanding of the interests, motives, concerns, and inspiration driving their people.

The increased emphasis on flexible and virtual working James said he noticed when he co-founded the firm has only become more critical now as so many organizations have had to quickly adjust to a completely remote way of doing business.

This new environment, he said, requires a laser-like focus on business needs and the relationships required to deliver results.

Carolyn kicked off the substance of the webinar by leading participants in a process called “structured reflection.” She directed participants to reflect on what brought them to the session, to write down their thoughts, and even to reflect on different questions that may occur to them in the moment.

After a quiet minute or so, she instructed everyone to put their notes aside and look out the nearest window, focusing on what was drawing their attention, bringing their thoughts back to what they were seeing any time they started to wander.

Next, everyone was to draw a line under their notes and write down whatever they were now thinking about. Finally, participants were directed to look out the window one more time for a “grateful minute,” noting what they appreciated about the scene before them.

Carolyn explained that this exercise in shifting focus is a strategy Mayvin uses with clients to help them “slow down to go faster.” The idea is that by taking quality time to reflect, the individual may be able to problem-solve using different, more artful ways of thinking.

Conscious reflection, she said, can also play a vital role in developing a healthy, productive culture in a purely virtual organization by making space for innovation and interpersonal connection.

At its founding, the presenters explained, Mayvin was set up as an experiment aimed at shifting the mindset that an office is needed to have a real organization–an idea proving more relevant now than ever. As many are now realizing while isolating, social-distancing, and working remotely, the lack of a physical office can lead to unanticipated practical concerns: For example, how do you use technology to effectively stand in for water cooler chat, five-minute conversations over a coffee break, impromptu one-on-one check-ins, and all the other interpersonal interactions that create the “relational glue” required for an effective organization?

One practical solution Carolyn and James offered was the use of what they call a “noticing channel” on Slack or Microsoft Teams–a line of communication between employees completely separate from work-related discussions and emails that functions like a virtual form of casual conversation around the water cooler.

Mayvin also uses a random channel where employees have posted photos of at-home projects, family members, and even photos of themselves as teenagers. The idea is to maintain the type of non-work-related interpersonal connections that happen organically in an office even while everyone is working remotely.

The key take-aways, they said, for successfully navigating the shift to online and remote work include treating it as an experiment and remembering it’s all about mindset. Hold the tech lightly, they said: Remain nimble when determining what works and what doesn’t, always aiming to stay focused on what is working.

Where possible, they advised, use tools people are already comfortable with, helping them apply those familiar tools to new scenarios. Give people time and support to work through the change curve, making space for employees to air their fears and concerns and work through their feelings.

James likened it to choreography or setting a stage in theater. He encouraged the use of gallery view in video conferences so everyone occupies the same amount of space.

In smaller meetings, he suggested asking that everyone unmute themselves to allow for more natural interactions. Use the type of structured reflection Carolyn led the group through to shift mindset between meetings.

Create the glue that allows virtual workspaces to work well, they said, remembering that there’s more room for misunderstandings in virtual spaces. Preventing misunderstandings helps prevent disputes and enable purpose.

* * *

The author, a second-year law student at Fordham University’s School of Law in New York, is a Summer 2020 CPR Institute intern.

A Letter from CPR President & CEO, Allen Waxman

It has been a month since my last update to you, and certainly much has happened during this strange and challenging time. I hope that you are finding ways to tend, not only to the health of your businesses and professional lives, but also to yourselves personally. While honoring our responsibilities to our companies and clients/customers, I believe it is of paramount importance during this time also to be gentle with ourselves and each other. If it feels difficult, it is because it is difficult! We are trying to take the same counsel at CPR.  Our staff has all been working remotely, and finding ways to connect with each other over diverse platforms.  I now know the look of the kitchens, living rooms or guest rooms of each of my colleagues.  That takes us to a whole new level!

At the same time, I am so very proud of our staff in being true to our mission – managing conflict to enable purpose.  We have continued to offer insightful programming on how to prevent and resolve disputes most effectively during this time while also providing our dispute resolution services.  Your engagement and support (financial and otherwise) for us is more important than ever to enable us to pursue our mission.  Thank you.

I thought I would take this opportunity to review with you some of our activities over the last month.

CPR DISPUTE RESOLUTION REMAINS OPEN FOR BUSINESS

CPR Dispute Resolution continues to operate seamlessly, offering our full suite of dispute prevention and resolution services. Given the backlog in the courts, the time for ADR is now.  DRS’ services, rules and protocols, and Panel of Distinguished Neutrals can help resolve matters efficiently and effectively.

Arbitration – For parties in disputes during COVID-19, you may want to consider converting a pending court case to a CPR Administered Arbitration, or entering (with the other party) into an arbitration clause more appropriate under the circumstances. In both cases, you will need to enter into an arbitration submission agreement with your counterparty. Model language for doing so can be found HERE.

Mediation –CPR’s Mediation Services are also available to assist businesses in these difficult times. You can find more information on these services HERE. In addition, CPR has just announced the upcoming launch of a new COVID-19 Flat Fee Mediation Program, in collaboration with Legal Innovators and FTI Consulting, to resolve disputes below $5 million. That program is being kicked off with a free May 13 webinar.

Dispute Prevention – We have launched a new Dispute Prevention Panel, comprised of neutrals who have the experience to facilitate resolution of a dispute before it becomes a legal conflict.  You can find more information HERE.

Because our offices remain closed, new filers should continue to submit electronically at cprneutrals@cpradr.org, and all payments should be made via credit card or wire transfer (please specify in your cover email how you would like to pay); paper filings cannot be accepted. To send files via Voltage encrypted email, please email herickson@cpradr.org to be authorized.

NEW PROGRAMMING

We recently hosted one of many programs that are part of our COVID-19-related focus, titled “Stability in the Pandemic: Personal, Professional and Global Targets.” This webinar featured renowned academics Lela Love, Professor of Law and Director of the Kukin Program for Conflict Resolution at Cardozo Law School, and Sukhsimranjit Singh, Assistant Professor of Law and Practice and Managing Director of the Straus Institute for Dispute Resolution at Pepperdine University Caruso School of Law. The speakers discussed holistic methods to approach conflict while social distancing, touching on key mediation strategies and self-care techniques to create a positive and conflict-free living and work space. A recording will be available soon and can be found in our “ADR in the Time of COVID-19” section, along with numerous other resources, HERE, and I encourage you to explore and check back often for updates.

SOCIAL DISTANCING – BUT STILL SURGING AHEAD ON ALL FRONTS

CPR continues to forge ahead and grow in numerous other ways I am delighted to share with you.

New Partnerships – CPR recently announced a strategic partnership with the International Association of Defense Counsel (IADC), through which IADC named CPR as a recommended ADR services provider. The IADC will be promoting CPR membership, DRS services, and arbitration and mediation rules to its 2,500 members, which in turn will gain access to valuable CPR benefits, resources and discounts, including CPR membership and other joint programming opportunities. And this collaboration is bearing almost immediate fruit, in the form of our upcoming joint webinar, “Resolving Legal Disputes in the Era of COVID-19.”

Support for Remote Video Arbitrations – Ever responsive to the changing legal landscape, CPR quickly convened a task force that created an Annotated Model Procedural Order for Remote Video Arbitration Proceedings. The model order puts into one, user-friendly document the best practices that the arbitration community needs to navigate remote video hearings. This new model procedure is a perfect example of what CPR can do and does regularly – harnessing the rich insights and vast experience of its membership to create timely and cutting-edge resources that both benefit users and enhance the capacity for ADR, in general.

The Drive for Diversity Continues – Since my last update, CPR also took a further step toward promoting diversity in alternative dispute resolution (ADR) by launching a new clause to be used by parties who wish to pre-commit to a diverse panel of neutrals in a future dispute to be resolved by arbitration. Read the full press release HERE.

New Data Security Resources – CPR continues to take steps to help parties and neutrals address the challenges of maintaining data and cybersecurity in ADR matters. In our new website section, you will find information relating to communicating with CPR on case-related matters, cybersecurity in arbitration and other ADR proceedings, data protection and the CPR online dispute resolution platform, as well as other technology tools and member discounts for e-filing services.

Networking for Neutrals – CPR has continued its role of providing service to the ADR community by convening three Neutrals Forums in different time zones to provide a space for the exchange of questions, learning and best practices for remote proceedings during the time of COVID-19. Participants were able to discuss issues that have arisen or are anticipated to arise in such proceedings such as the potential for witness coaching and the handling of exhibits during such procedures. The CPR Annotated Model Procedural Order was circulated to attendees and several of its provisions highlighted. Neutrals, please watch your email inbox for future invitations.

A RICH SCHEDULE OF UPCOMING PROGRAMMING

Our events calendar continues to be as relevant as it is robust. Upcoming virtual events include:

New events are scheduled regularly, so be sure to check our website Upcoming Events section regularly for new offerings.

STAY SAFE AND STAY STRONG

This has been a trying but also a productive time.  Keep engaging with us as we navigate this new normal together.  We in the CPR community are a resilient and resourceful bunch, and I am confident that, with generosity and patience, we will continue to overcome these challenges together.

As always, please let us know if you have any questions or concerns, or just let me know how you are doing. (Instead of hitting reply, please drop me a note at awaxman@cpradr.org to make sure I see your message quickly.)

Warm regards,

Allen Waxman

CPR Takes to the Web As ADR Continues in the Face of the Coronavirus Crisis

By Anne Muenchinger, Federica Romanelli & Michael Hotz

CPR on Monday hosted an online event, ADR in the Time of COVID-19: How Neutrals & Advocates Can Use Zoom for Mediations & Arbitrations, a 90-minute training dedicated to helping neutrals and advocates use the Zoom Professional online meeting platform, and how to integrate online tools into alternative dispute resolution practices.

Chicago-based attorney Thomas Valenti, an arbitrator and mediator who heads his own firm, and is a member of CPR’s Panels of Distinguished Neutrals, conducted the session.  Held via the platform he was discussing, Valenti showed more than 200 participants the ins and outs of Zoom Professional and how to adapt it for ADR-centric tools such as preliminary hearings, screening arbitration expert witnesses, and private party-mediator caucuses during interparty negotiations.

Monday’s lunchtime session was a follow-up to a March 17 online CPR Institute Mediation Committee where committee members, including Valenti, compared online platforms and electronic mediation techniques.

Details of both sessions are below, as well as information about an American Bar Association online ADR program held last week.

* * *

At the March 30 program, Valenti led a discussion centered around security issues, a key concern for neutrals in using online tools.  Valenti explained the many Zoom features that control access to information, including “end-to-end encryption” of meetings; identification processes; password protection for meetings; waiting rooms that control meeting attendance; the ability to lock meeting rooms once all parties are present, and auditory signals when someone enters or leaves the room.

Valenti discussed essential resources for guidance in the process of moving to an online forum, including  the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, which provides a framework for information security measures for individual arbitration matters. He also noted Zoom’s own white paper and documents on the subject.

Valenti strongly advised using the Protocol’s Schedule A, which contains a “Baseline Security Measures” checklist and provides neutrals with the right questions about their online practice. The spirit of the Protocol, he said, is to offer a framework within which neutrals can make decisions and best adjust online tools to their individual practices and client needs.

Valenti noted the CPR Institute’s participation in the Protocol’s construction by its Working Group. CPR representatives included Senior Vice President Olivier P. André, along with Hagit Elul of Hughes Hubbard & Reed, and Micaela R.H. McMurrough, Covington & Burling, both New York-based partners at their respective firms.

Several Zoom features were explained and demonstrated, including breakout rooms, which can be used for private meetings and caucuses; screen sharing and white boards, which allow for information display or form filling on the spot, and document annotation by all attendees.

A recording of the session will be available soon on the CPR Institute’s new website Resources coronavirus clearinghouse page, ADR in the Time of COVID-19.

Valenti warned that users must recognize the potential shortcomings of online ADR. The assessment of body language will be limited, and there are no guarantees that there is no one sitting off camera or that the meeting is not being recorded.

Meeting participant Dean Burrell, of Morristown, N.J.’s Burrell Dispute Resolution, suggested a tactic he uses to deal with potential issues: He said he asks the parties to scan the room every so often to confirm no one else is present.

Another concern often raised is whether the session is being recorded; Valenti pointed out, however, that this concern is similar to any other mediation or arbitration with the use of smartphones. Hosts should acknowledge that the process is not perfect, but that risks can be minimized.  He said hosts should ask participants if someone else is in the room and not to record the session.

But beyond the  COVID-19 crisis, online ADR practice provides a useful tool for reducing costs and improving efficiency.

For arbitrators, online tools such as Zoom can help them stand out among tech-averse peers, and market themselves as having the ability to continue to push matters forward.

For mediators, online tools should be an addition to an experienced mediator’s set of skills, and can easily be used to set up documents, type in agendas, and set goals during a session. Hosts can also pass control to another party, and use different colors to identify each participant.

Valenti’s demonstration featured a video with Giuseppe Leone, founder of Virtual Mediation Lab, and showed that online mediation is not a new phenomenon. But the COVID-19 crisis is providing the ADR world with an opportunity to move itself forward with technology—not just as a substitute, but as a way to improve its practices.

Valenti recommended that the session host prepare all necessary documents beforehand and have them available on the host computer before beginning the online session, ready for display and sharing. Additionally, mediators should be more conscious about time when conducting an online, as the experience initially will be different from one in a physical space.

Hosts should also be conscious of the level of skill and familiarity that parties and counsel have with these online tools.

Valenti suggested using the initial pre-hearing conference, as set out under CPR Institute Administered Arbitration Rule 9.3, and in the 2019 CPR Rules for Administered Arbitration of International Disputes as an opportunity to test each participant’s level of comfort.

So an easy way to introduce online tools is to switch from a phone call to a video conference for the initial prehearing.

* * *

The genesis of Monday’s CPR members and neutrals-only Zoom training was CPR’s March 17th Mediation Committee meeting.

The Mediation Committee meeting featured two speakers–Kathleen Scanlon, Chief Circuit Mediator for the Second U.S. Circuit Court of Appeals in New York, and James South, Managing Director, Senior Consultant and Mediator for the Center for Effective Dispute Resolution (CEDR) in London—who presented their perspectives on a variety of mediation issues, including a comparative look at mediation practices on either side of the Atlantic, before focusing on mediating during the coronavirus pandemic.

The Committee then heard how CAMP (the Second Circuit’s mediation and settlement program), CEDR, CPR and the New York District office of the Equal Employment Opportunity Commission are dealing with mediations through the COVID-19 pandemic.

Kathleen Scanlon began by discussing the benefits of Sonexis (see sonexis.com) as a conferencing system.  She explained that it delegates pin numbers to each participant and allows the mediator to create private rooms for each party and join them as needed. Parties can then notify the mediator when they want to talk with the mediator.

She said there hasn’t been too much difference, anecdotally, between the success rates of mediating in person and with teleconference. Still, the video/audio approach leads to more accidental interruptions. It also decreases the ability to read body language, which can affect trust. The teleconference process also can be more tiring for the mediator to manage.

CEDR’s James South then stated that he uses Zoom.  Meeting participant Thomas Valenti agreed, also recommending the business version of Zoom to conduct more complicated mediations—which prompted the Monday, March 30 session he led, discussed above.

The Mediation Committee meeting participants, who like the March 30 session also participated by Zoom, agreed that it is critical that the conferencing technology used complies with privacy and confidentiality rules like Europe’s General Data Protection Regulation (best known as the GDPR). It also was recommended that the parties should consult the ICCA-NYC Bar-CPR Cybersecurity protocol.

James South noted that many mediations had been going on normally during the early stages of the coronavirus pandemic, but that he expected that to change over time. He said he has found that parties have been flexible, and been willing to move to video conferencing. He noted that he is unsure if this will survive the crisis, or is only due to the current state of affairs.

South, however, was confident that any reduction in mediation will return to normal levels.

* * *

Committee members then had a lengthy discussion of the issues surrounding the health crisis.  CPR Institute Senior Vice President Helena Tavares Erickson commented that she had provided to members of CPR’s Panels of Distinguished Neutrals a list of services that they could use to mediate effectively during the crisis.

Erickson noted that CPR Dispute Resolution Services offers its neutrals the option of using a secure document exchange, which allows for online text chat in different chat rooms. (For CPR Institute Dispute Resolution filing details, see www.cpradr.org/dispute-resolution-services/file-a-case.)

Meeting participant David Reinman, who is supervisory ADR coordinator of the New York District’s U.S. Equal Employment Opportunity Commission office, reported that his unit has a program that is currently handling all mediation by video or phone. The EEOC also is allowing parties to reschedule if they insist on in-person mediation. Parties who need translators or other special accommodations may invoke applicable proceedings, too.

Tom Valenti asked about screening procedures when conducting in-person mediations. It was noted that many law firms are forcing people to sign waivers stating that they hadn’t been in at-risk places. Given current advisories and shutdowns, however, it’s unclear that such waivers are effective. If parties want to continue doing face-to-face mediation—which has ceased entirely in many shutdown locations for the duration of the emergency–best practice would be to state that they haven’t been in contact with anyone who is infected.

Meeting participants noted, however, such mandatory declarations on disclosing other parties’ infection status could potentially violate HIPAA rules.

Various other online platforms and training options were compared among the participants near the meeting’s conclusion.

* * *

Beyond CPR’s online training event and meeting, and the resources noted, including the new CPR Institute website Resources clearinghouse page, ADR in the Time of COVID-19, others in the legal world and the dispute resolution community have tackled the move online.

For example, the American Bar Association webcasted a panel of experts on continuing with mediations, arbitrations and similar ADR commitments while coping with coronavirus.

The 90-minute March 20 web panel, “ODR in the ERA of COVID-19: Experts Answer Your Questions,” featured panelists including Hamline-Mitchell School of Law Prof. David Larson; online dispute resolution pioneer Colin Rule, who is a Stanford Law School lecturer, and University of Missouri School of Law Prof. Amy Schmitz. It also was hosted on Zoom.

The panelists shared a presentation while providing useful links on a side chat and taking Q&A from the attendees on another window—an electronic version of social distancing that has been repeated, and is rapidly become an ADR standard operating procedure.

The panel provided a list of advice for neutrals wanting to add tech tools to their toolbox.  It focused on accessibility; preparing lists; ensuring a competent approach; accessing live assistance as needed; analyzing online providers (see, e.g., http://odr.info/provider-list/); taking stock of the role for non-verbal communication; assessing whether the disputants will communicate synchronously; confidentiality; considerations for designing an ODR system; ensuring fairness; and ethical considerations.

The ABA panel concluded on ODR resources, providing the following links:

  • Cyberweek 2019; the NCTDR hosts Cyberweek annually at its website.
  • com, a collaborative resource guide.
  • Amy J. Schmitz and Colin Rule, The New Handshake: Where We Are Now (June 27, 2017). International Journal of Online Dispute Resolution 2016 (3) 2; University of Missouri School of Law Legal Studies Research Paper No. 2017-18. Available at SSRN: https://ssrn.com/abstract=2991821

* * *

Muenchinger is a CPR Institute Spring 2020 intern, and an LLM student at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, focused on the March 30 session discussed in this article.  The section on the CPR Mediation Committee meeting was prepared by CPR Institute Spring 2020 intern Michael Hotz. The section on the ABA seminar was prepared by CPR Institute Spring 2020 intern Federica Romanelli. Alternatives’ editor Russ Bleemer assisted with the research and writing.