As the Singapore Mediation Convention Enters Into Force This Week, It Is Wait-and-Watch on Its Use

By Yixian Sun

It’s a historic ADR beginning.

The 46 countries—including the United States, China, India, Japan, Israel, and Switzerland—that last year signed the United Nations Convention on International Settlement Agreements Resulting from Mediation, known best as the Singapore Mediation Convention, have been joined by seven more since August 2019.

And now, the treaty is set to go into effect.

That group of 53 will preside over the treaty’s official effectiveness date, this week, on Sept. 12.  Under the treaty’s Art. 14, when Qatar became the third nation to ratify the treaty on March 12, effectiveness takes place automatically six months afterward.

The backers will commemorate the effectiveness with an “Entry into Force Celebration” which will stream live here on Saturday: www.singaporeconvention.org/events/scm2020.

The original group signed on last September in Singapore, providing the treaty’s name, and setting the stage for ratifications and effectiveness. 

Official acceptance happened fast. The treaty, which ensures that mediation parties can take their agreements across borders and get them enforced, automatically takes effect upon ratification by three countries. 

Fiji and Singapore had signed the treaty into law in their nations on Feb. 25, which Qatar followed six months ago.  Saudi Arabia, Belarus and Ecuador also ratified the treaty this year.

For an updated status of the Convention, see at https://bit.ly/3bc4Ww3.  

The interest demonstrated with the initial signings is an impressive number compared to, for example, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, well-known in the alternative dispute resolution community as the New York Convention. That 1958 treaty had 24 signatories when it came into force.

Indeed, the world’s view toward ADR has changed fundamentally since 1958.

The Singapore Convention applies to international settlement agreements resulting from mediation and concluded in writing by parties to resolve a commercial dispute. State parties to the Convention undertake to enforce such settlement agreements. The new Convention seeks to establish a streamlined and harmonized framework for cross-border enforcement of commercial settlement agreements, thereby promoting the use of mediation for the resolution of disputes arising from international business and trade.

Find a brief introduction and the full text of Singapore Mediation Convention are at the official website at www.singaporeconvention.org.

Within the past year in the CPR Institute’s Alternatives to the High Cost of Litigation newsletter, Piotr Wójtowicz and Franco Gevaerd provided an overview of some key features of the Convention, with a focus on the basic requirements for the treaty’s application to a specific settlement agreement.  See the authors’ analysis at “A New Global ADR Star is Born: The Singapore Convention on Mediation,” 37 Alternatives 141 (October 2019) (available at https://bit.ly/3gJf7JI) and also their discussion of the grounds for States’ or parties’ refusal of enforcement, “How the Singapore Convention Will Enforce Mediated Settlement Agreements Across Borders,” 1 Alternatives 9 (January 2020) https://bit.ly/3jAMdNL).

Some treaty features already have proven to be of great importance in the age of Covid-19. For example, in the face of increasing acceptance of, or at least acquiescence to, online ADR, the Singapore Convention does not incorporate the concept of a “mediation seat.” According to the United Nations Commission on International Trade Law, best known as UNCITRAL, while an arbitral award usually has a place of issuance to help determine its “foreign” nature, it can be difficult to connect a settlement agreement to a specific place or legal seat due to mediation’s inherently flexible nature. Report of Working Group II, UN Doc. A/CN.9/861 (2015) (available at https://bit.ly/2QIgopO).

The treaty also will not just be concerned with the differences between mediation and arbitration, but also about how business disputes are resolved in the 21st century. Negotiations are conducted in video conferences; agreements are developed and reached via emails, and multiple jurisdictions can be involved in one cross-border mediation.

The COVID-19 pandemic is accelerating these activities, since parties likely can’t travel to mediate, and at least some mediation sessions have to take place remotely even for those who prefer in-person meetings.

Wherever or however the mediation is conducted, the resulting agreement will qualify as “international” under Article 1 of the Convention (i) as long as  at least two parties to the settlement agreements have their places of business in different States; or (ii) when the parties have places of business in the same State, that State “is different from either [S]tate where the obligations of the mediated settlement agreement are to be performed, or the [S]tate with which the subject matter of the mediated settlement is most closely connected.” Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements,” 19 Pepperdine Disp. Resol. L.J. 1, 21 (2019) (available at https://bit.ly/2GIGtmQ). The settlement agreement itself, however, is essentially “a stateless instrument.” Id. at 22.

Indeed, many have found mediation the most appropriate and least cumbersome commercial dispute resolution forum during the pandemic. It serves as an efficient and manageable process where parties are encouraged to sit together and come up with creative solutions to preserve both sides’ economic interests and long-term partnership. See, for example, Ivana Nincic, “The Impact and Lessons of the Covid-19 Crisis as Regards the Efficiency of Justice and the Functioning of the Judiciary–a View from the Mediator’s Lens,” International Mediation Institute (available at https://bit.ly/2YQmNDw).

One may even question if international mediation will become the “new normal” for many disputes. Nadja Alexander, “International Mediation and COVID-19–The New Normal?” Kluwer Mediation Blog (May 21, 2020) (available at  https://bit.ly/352B30f). See generally the CPR Institute’s web page ADR in the Time of Covid-19 at www.cpradr.org/resource-center/adr-in-the-time-of-covid-19.

Yet it is one thing to celebrate mediation’s increasing prevalence, but another to predict how successful the Singapore Mediation Convention is going to be. To be more specific, it remains to be seen whether and to what extent the potential users of the new treaty, namely multinational corporations, will be willing to invoke this brand-new framework and make necessary adjustments to their business and legal arrangement accordingly.

Here is an example raised in a panel discussion by Mark Califano, Chief Legal Officer at Nardello & Co., a New York-based international consulting firm that conducts investigations for corporations,  at this year’s American Society of International Law’s Annual Meeting. Under Convention Article 4(1)(b), mediators are expected to sign off on the settlement agreement or use other methods to indicate their involvement. Under Article 5(1)(e), serious misconduct by the mediator is a ground for refusing to grant relief.

While this design may be a reasonable requirement for the purpose of transboundary enforcement, it is, to certain extent, inconsistent with the common practice in places like the United States, where the process of mediation is highly confidential and the behavior of mediators is rarely subject to litigation.

Therefore, parties may want to draft a contract clause beforehand to make sure that whatever settlement agreement that comes out of the mediation process fulfills the requirements imposed by Singapore Convention. The Singapore Convention on Mediation and the Future of Appropriate Dispute Resolution, ASIL 2020 Virtual Annual Meeting (June 25, 2020) (available at https://bit.ly/34PHKT3).

In addition, the Singapore Convention’s limited application scope may prevent it from breaking the hegemony of the powerful, “all-encompassing” New York Convention.

Settlement agreements attained via mediation and negotiation and confirmed by the arbitral tribunal are enforceable under the New York Convention. On the contrary, Article 1(3) of the Singapore Convention excludes settlement agreements that have been approved and are enforceable as judgments or as arbitral awards from its scope of application.

As a result, cross-border businesses used to hybrid dispute resolution procedures might prefer to keep mediation as part of the arbitration proceeding, where “the success or failure of mediation will not affect the enforceability of the final award rendered by the arbitral tribunal.” Ashutosh Ray, Is Singapore Convention to Mediation what New York Convention is to Arbitration? Kluwer Mediation Blog (Aug. 31, 2019) (available at https://bit.ly/32FEjf7).

Aside from international treaties, the Singapore Convention may need to compete with the pre-existing domestic or regional legal regimes in different jurisdictions. Under Article 12(4), the Convention should not prevail over conflicting rules of a regional economic integration organization if relief is sought in a member State of that organization.

Thus, if the European Union adopted the Convention, practitioners would need to explore how to reconcile the Convention with the EU Directive on Mediation, which does not authorize direct enforcement of settlement agreement. Iris Ng, The Singapore Mediation Convention: What Does it Mean for Arbitration and the Future of Dispute Resolution? Kluwer Mediation Blog (Aug. 31, 2019) (available at https://bit.ly/34Sdw1U).

In Singapore, parties to international mediated settlement agreements are allowed to pick and choose between mechanisms of the Singapore Mediation Act 2017 and the Singapore Convention according to their needs and features of individual cases. Nadja Alexander & Shou Yu Chong, Singapore Convention Series: Bill to Ratify before Singapore Parliament, Kluwer Mediation Blog (Feb. 4, 2020) (available at https://bit.ly/3bbGlYf).

Despite all of this, we should agree with Piotr Wójtowicz and Franco Gevaerd who noted with their Alternatives articles linked above that the Singapore Mediation Convention is another milestone in international dispute resolution. The fact that the Convention was drafted and finalized in fewer than five years is itself an encouraging indication that “joint international effort is still viable,” the authors noted in their second article in January.

International businesses and lawyers will not refuse to diversify and expand their toolkit with a simplified enforcement framework. What the ADR world needs now is more practical experience and some legal precedents for the Convention to mature.

The author, a student at Harvard Law School in Cambridge, Mass., was a 2020 Summer Intern at the CPR Institute, which publishes CPR Speaks.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Klaus-Olaf Zehle”

The CPR European Advisory Board (EAB) continues it series “meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A, with Klaus-Olaf Zehle.

Klaus-Olaf is a German ADR practitioner based in the northern part of German.  His activity focuses on mediation, moderation of meetings and workshops and coaching.  A qualified industrial engineer, Klaus-Olaf spent 20 years in leadership positions at local and international IT consulting firms. He also sat on the board of a public telecommunication and outsourcing provider.  In 2004, he started a second career as mediator, coach, moderator and leadership trainer with a natural special focus on customers from technology and engineering.  He is a Certified Mediator from the International Mediation Institute (IMI), Den Haag and qualified as Certified Mediator according to German law. In addition to the CPR Panel of Neutrals, he is also on the panel of mediators for commercial disputes and an arbitrator for IT conflicts at the Hamburg Chamber of Commerce.  Klaus-Olaf is very active in mediation in and around Hamburg where he lives: he teaches mediation in the Masters in Programme Management at the International School of Management and Networking & Network Building in the Masters in Corporate Management at the Business and Information Techology School.  He speaks and practices in German and English.

Klaus-Olaf has kindly agreed to contribute to our series and give us his insight on his mediation practice:

How did you get your start as a neutral?

Before any education on mediation, I got my first experiences as an Executive in a company by solving conflicts between departments which had different targets.

Who is your dispute resolution hero/heroine?

Gary Friedman and Jack Himmelstein from the Center for Mediation in Law are my mediation heroes. Not only did I benefit from two practitioner trainings with them, but they have also influenced the German mediation scene from the early days of mediation in the country. Nearly all of my coaches in mediation had undertaken their first education in mediation from Gary and Jack.

Their concentration on the power of understanding characterizes the way in which I now personally conduct mediation.

From Germany my mediation experience was mainly influenced by Stephan Breidenbach and Jutta Lack-Strecker.

What advice would you give to the younger generation looking for a first appointment as neutral?

Do not expect to be the neutral that all parties in dispute are waiting for.

It takes a long time to build a reputation. Networking in local and nationwide mediation associations is helpful. There, you can get experience from other neutrals.

Also, local events are very important; you should try to make presentations or speeches about the benefits of mediation and other dispute resolution processes at such events. It’s all about educating your potential clients.

Short articles or essays about dispute resolution in local newspapers or journals also can be of help.

Were you ever the first in doing something?

Yes, on many occasions, I was an innovator or early adopter. In my profession as a consultant, I was one of the first to offer mediation. A lot of my colleagues followed me in this specialization.

Together with three colleagues, we developed a specific consulting concept for disputes within a corporation, which is based on the principle of disputes resolution by a neutral dispute. We named this concept equidistance consulting.

We also developed a new methodology called Congruation (Congruence & Integration).  This process refers to the need to show the differences in the positions and interests of the various members of a team or a board in order to solve latent conflicts.  This is a paradigm I learned from coaching by Gary Friedman and Jack Himmelstein,

What makes your conflict resolution style unique?

While I am conscious that it is not – from a purist point of view – part of a neutral’s role or acceptable, I sometimes switch from a mediator role to that of an experienced person with an outside view of the situation and provide advice and ideas on how to resolve the conflict. I always do this with the prior full consent of all parties involved.

One example: During a mediation process with several partners of a law firm and relating to managing issues, I switched my role at some point and reported to them on best practices that I teach in leadership courses. These best practices are intended to give the parties the possibility to learn from each other.  The parties are free to decide together whether they want to follow this kind of best practice or an adjusted version of the same.

What has been the most difficult challenge you have faced as a neutral?

I mediated a team conflict, which after some discussions resulted in there being one person opposed to nearly ten colleagues. I was convinced that even in this specific setting the conflict could be resolved by mediation. During the process, the significant imbalance of one against ten became more and more obvious, and I started to feel inclined to support the one-person party. I therefore recommended that they reduce the number of participants in the group of ten persons. This proposal was not accepted, and we stopped the mediation process.

What is the most important mistake you see counsel make?

Counsels who insist on prolonged discussions after a clear getting to “yes” phase. They should accept that their client does not need additional reasons or to reopen the discussion.

I sometimes have the feeling, that counsels like to make themselves valuable by showing that their view – when it is different from the negotiated agreement – is still the only right way.

If you could change one thing about commercial arbitration, what would it be?

Mediation should be mandatory before going to court or arbitration.

Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?

Online mediation is one of the most efficient ways to resolve disputes among parties who are located far away from each other. The current discussion on security risks of some platforms should be addressed at the beginning.  The benefits should be balanced against the risks of confidentiality. All parties have to agree on the video conference platform to be used. Those documents that contains material worthy of protection could be shared in encrypted form via a separate communication channel and parties should be instructed not to share such material on screen during the video conference.

In your view, what makes CPR unique? 

During my master studies in mediation, I learned about CPR in conjunction with the CPR pledge. I liked this idea and based my master thesis on this topic. The CPR pledge is for me still one of the key elements to dispute resolution.

Do you have any concluding remarks or an anecdote you would like to share?

My 2005 published master thesis on “Enhancing the acceptance of Alternative Dispute Resolution (ADR) practices between corporations through voluntary commitment, considering the example of the CPR Pledge and its transferability to the German market” was included in a PWC Study on ADR, which has had a lot of impact in establishing a series of conferences on ADR in Germany. Out of these conferences a round table of large corporations was established which now developed a pledge for Germany. CPR has indirectly influenced the acceptance to ADR in Germany.

When News Coverage Mediates Between Parties

By Alice Albl

For the Aug. 26 session of the Conversations in Conflict series hosted by New York Law School’s Alternative Dispute Resolution Skills Program, reporter-turned-mediator Carol Pauli discussed the similarities between her past and present professions.

First published in a 2007 paper that earned the CPR Institute’s Student Article Award, Pauli’s theory asserts that journalists often become mediators while adhering to their profession’s ethical demands to maintain neutrality and respect all sources. The narratives that journalists shape can act as bridges of understanding between oppositions. Carol Pauli, News Media as Mediators, 8 Cardozo J. Conflict Resol. 717 (2007) (available at https://scholarship.law.tamu.edu/facscholar/570).

Two interviews by former CBS Evening News anchorman Walter Cronkite were Pauli’s first example of the media as mediator. Cronkite had organized consecutive talks with the heads of mutually hostile nations, Egypt’s President Anwar Sadat, and Prime Minister Menachem Begin of Israel.

Going first, Sadat expressed a willingness to come to Israel if invited. In the second interview Cronkite mentioned this to Begin, who immediately extended the invitation. Days later Sadat was in Israel and the two countries were closer than ever to peace. In this story, Pauli recognized the flow of a “classic” mediation.

Pauli, an associate professor at the Texas A&M University School of Law in Ft. Worth, Texas,  then explained that other mediation styles can manifest themselves through journalism. The story-uniting goal of “narrative” mediation was met when a Poughkeepsie, N.Y., newspaper wrote several articles about Jaime Gil Tenorio, a migrant worker killed in a local hit-and-run.

Tracing Tenorio’s life led the newspaper to the village of San Augustin Yatareni, Oaxaca, in Mexico. People there often made Poughkeepsie their destination for work to support their families. As recognition for their sacrifices, Poughkeepsie sent gifts to the village, among them computers for staying connected with migrated family members.

Pauli did not discuss the Mexico locales by name in her presentation, but for more information see, e.g. Maria Rose, “Oaxacan Immigration to Poughkeepsie,” Welcome to the Hudson Valley: A Guidebook of Topics in Local Environmental History (June 3, 2013) (available at https://bit.ly/3juDDQB).

Thanks to the articles, said Pauli, the usual U.S. story of malicious “invader immigrants” had been forced to reconcile with the migrants’ realities of hardship and love. The result was a new, shared narrative that any mediator would proudly tout.

While the harmony of respect and neutrality could transform journalists into mediators, Pauli closed her presentation telling mediators to watch what journalists do when the two clash. Their solution in tempering neutrality with compassion might not lead to the perfect scoop, but it does build bridges.

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Recordings of NYLS’s Conversations in Conflict Resolution series are being posted at the school’s Alternative Dispute Resolution Skills Program at https://bit.ly/32A3aAP.

* * *

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

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Mladen Vukmir”

The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents this Q&A with Mladen Vukmir.

Mladen is the founder of Vukmir & Associates based in Zagreb, Croatia https://www.vukmir.net/.  He has a background in intellectual property and is both a patent and trademark agent, admitted to practice before the Croatian State Intellectual Property Office (CSIPO) and the European Patent Office.  He has been appointed by the Croatian government to serve as a member of the Board of Appeals for Patents and Topographies.  In addition, he is an arbitrator on the panel of domestic disputes at the Permanent Arbitration Court at the Croatian Chamber of Commerce, a panelist on the UDRP Domain Name Panel at the WIPO Arbitration and Mediation Center and a distinguished neutral on the CPR Panels of Neutrals and at the INTA PON as well as being an IMI certified mediator.

How did you get your start as a neutral?

I have always thought that the adversarial process is not properly aligned with the interests of the disputants.  During the second year of my traineeship, back in the Eighties, I attended a hearing in a divorce proceeding where I realized that I was not helping my client very much by bringing in legal expertise and positional thinking.  Although I was well educated, I was not equipped to deal with the human aspect of the challenge faced by my client, captured in a protracted lawsuit.  While it is a great anecdote, I will not retell it here beyond this summary.

As I am professionally involved in intellectual property, as soon as I became aware of the WIPO efforts in the mediation field, I joined its mediation education course in San Francisco, back in May of 2000 and immediately afterwards continued with the advanced trainings.  A couple of years later, I participated in a full USAid mediation training held in Croatia by US instructors, followed by the first batch of International Trademark Association (INTA) international trainings as well as some CEDR organized trainings for the local judge mediators.

I clocked up my first practical experience (as a volunteer mediator) through a pilot, court-annexed program initiated by the Croatian ministry of Justice. This was followed by more international trainings and commercial mediation in various settings

Who is your dispute resolution hero/heroine?

My biggest mediation hero is Judge Srđan Šimac of the Croatian High Commercial Court, who started independently from me the very same year, through a judges’ exchange program in Canada. Since 2000, he has succeeded in bringing Croatia into the group of countries considered to have a developed mediation scene.  A remarkable achievement.  Since he took over the Croatian Mediation Association (HUM), he has turned it into a highly professional and experienced mediation hub, with an established mediation center and various training programs.

One of my early international trainers, an Italian mediator, Carlo Mosca, is also someone whom I remember as being a big influence.  It was Carlo who first told me as a trainer during an INTA international training that a mediator is not responsible for the outcome of the process but is primarily responsible for the process itself.  I think this is a very important insight for young mediators.

I should also mention my early trainers Bill Marsh, the late Colin Wall, and David Richbell, as well as Robert Mnookin and Gary Friedman. In addition, I would also like mention Jack Himmelstein, who was not my teacher but whose video on joint meetings strongly influenced me in accepting the importance of the joint mediation sessions relative to caucusing.

What is the one piece of advice that you would want to give to the younger generation looking for a first appointment as neutral?

Take any mediation that becomes available to you in order to find out how you function in the role of a mediator.  It is important to find out as early as possible your own ideal balance between the knowledge you have acquired through mediation trainings, which helps to form you as a mediator playing her/his role and your own authentic self.  Finding this balance is important in order to be able to build a deeper rapport with the parties.  Secondly, do not hesitate to push much of the content typically dealt with during the opening phase into the preparatory phase of a mediation.  This will make running the process with maximum efficiency much easier and, again, deepen your rapport with the parties.

Were you ever the first in doing something?

I was among the very first in my country to become interested in mediation back in 1999. This, in itself, was a pioneering step.  However, I think even more important is the fact that since 1986, I have been very aware that the role of law will change in our societies.  After many centuries of the increasing importance of law as a central axis of social organization, we are now faced with the prospect of law shifting away from its central role as a tool of social organization.  To make myself clear, I do not think that law will vanish in any way, rather, I believe it will morph and shift to a different position in our societies, in a way similar to the path feudalism took previously.  It did not disappear, but transformed into today’s role of constitutional monarchies bound by law.

Before the legal profession was ready to discuss this type of issue, back in 2004 I published an article, entitled “Embracing the Negative to Achieve the Positive” in The European Lawyer magazine, pointing out what was perceived as wrong with the system (https://www.academia.edu/19744783/Embracing_the_Negative_to_Achieve_the_Positive)This preceded, by some four to five years, thinking about the limits of the legal profession such as those elaborated in the fascinating book The End of Lawyers by prof. Richard Susskind.

What makes your conflict resolution style unique?

I strongly believe that every individual has a unique mediation style and that every mediation will further influence it.  Each mediation is unique, just as snowflakes are and a good mediator understands that.  Every mediator is bound to be unique because if a mediator is true to himself or herself he or she will approach any problem in his or her own, unique way.  For example, because of my countercultural background, some street-smartness gained on the rock and roll scene, lengthy education in different countries and my legal family background, my own blend of introvert and extrovert characteristics, will certainly result in me having some individual approaches and ideas!

What has been the most difficult challenge you have faced as a neutral?

In retrospect, all of the challenges seem just like a learning process, whereby one gradually matures.  Certainly, one of the most unexpected for me was a situation that occurred early on in my career.  It happened in a business mediation and developed from a simple request by the parties to turn on the air conditioning in the room where we were meeting.  It was an unfamiliar setting for all of us, we were in a hastily adapted apartment that was being used on a temporary basis by the Mediation Center.  Not knowing where the AC controls were in this old apartment, I scanned the walls, looked under the windows and around the AC machines, as I did so I heard noises behind me.  When I have turned around I saw the parties on their feet pushing the table at each other.  The chairs which they had been sitting on soon started tumbling to the floor and then the shouting started. I managed to calm the parties sufficiently for them to pick up the chairs and sit around the table but I was not able to get the conversation running again or otherwise remedy the harm to the process that had occurred.  The parties decided to proceed with arbitration as per the dispute resolution clause that was applicable.

Back then I was a very young mediator and I have since learned a great deal about the importance of the environment, which I have used to great benefit in some difficult subsequent mediations.  For example, when faced with a serious impasse, it can be helpful to stand up and move away from the table, allowing the parties to regain space and start behaving partially out of the scope of authority of the mediator.  This technique can encourage parties to be more assertive achieving transition to the phase of ventilation more quickly thus breaking the impasse choking the process.

Besides this single example that I have selected here, in general, I still find it rather demanding to deal with ethically questionable episodes that are revealed in some mediations.

What is the most important mistake you see counsel make?

I generally see counsel that approach the mediation process with good faith and the utmost effort to sustain it.  Having said that, I can provide an example of a situation where a counsel sent me through the roof, figuratively speaking.  I will never know if it was a result of counsel not understanding the process or a deliberate attempt to undermine it.  The situation arose when I was engaged by an important international mediation center as a convener, as they could not convene the parties themselves.

I spent a couple of months getting familiar with the matter and building trust with the parties, only to see a representative of one of the parties defeat all that effort with a single letter, drafted against my advice which I had provided based on my understanding of the issues behind the refusal to mediate.  Instead of sending a carefully drafted, emotionally balanced and deferential communication, counsel decided to send out just another one of the positional threats that sounded impersonal and legalistic.  I am not sure that his client was consulted, or even informed about my efforts and recommendations.  The letter was not well received by the party that previously refused to mediate and it derailed the process.

My lesson here was that I might have had focused too much on the party that wished to avoid mediation and not enough on the party that was nominally willing to mediate. Regardless, it was really disappointing to see a colleague unable to contribute to, or even possibly intentionally undermine the rapprochement between the parties – by clinging onto the positional threats and impersonal communication.  Having said that, my overall experience is that counsel are very helpful to the mediation process in general.

If you could change one thing about commercial arbitration, what would it be?

I never look at arbitration and mediation as belonging to the same group of ADR methods.  Arbitration is a position-based process and mediation is not.  Arbitration has a third person deciding on the outcome, rather that the parties achieving the settled outcome.  I therefore, make a clear distinction between the two.  I serve in both processes, but largely refrain from presiding as an arbitrator because I feel that the energy I spend is not proportional to the degree of service I can bring to the disputants.

However, since I do serve as a wingman from time to time, I can say that in my experience, some arbitrations are indeed more burdensome for the parties than litigation is, in terms of costs, complexity and duration.  Because it is essentially a legal process, I think that the emphasis of the legal aspects in arbitration is not ideal in the ADR context.  Equally, mediation is not free from its downsides.  One of my early mediation trainers and a very experienced mediator himself said some twenty years after we have met and after he went through a mediation as a disputant for the first time, that he found the experience very difficult and much worse than he expected.  He felt the process was painful and his feeling had apparently nothing to do with the mediator, or with the other party making it difficult, it was just simply difficult to go through the mediation.

Admittedly, his experience was based on the personal dispute, not a business one. Nevertheless, in order to prevent such experiences, I would like to assist the disputants in feeling as good as possible in the mediation setting and I think that one of the ways of doing this is actually not to focus only on the process itself.  Of course, given the expectation of businesslike focus on the issue in dispute and the process itself, a mediator that departs from such focus risks appearing unprofessional.  In other words, what I would like to help disputants do is peel away layers of the professional masks we wear all the time and be themselves to a greater degree even in commercial mediations.

Now let’s turn to some specific topics:

  • What is your approach to cybersecurity and data protection in international dispute resolution?

I was always familiar with technology as I have worked with the IT industry early in my career and have myself been an eager early adopter.  I think that one should neither completely rely on the technology nor fear technologies’ weaknesses. All software is bound to have some security issues, but that is not a reason not to go digital.  Data can be lost and or compromised in the physical domain as well.  Parties must set the standard of security they wish to achieve jointly and the mediator needs to adjust to their decision.  As I am generally in favor of high transparency standards, I don’t have a personal urge to overprotect, but I will, depending on the circumstances, strive to adapt even to the highest security standards available.

  • Preliminary / early decisions: do you attempt to identify and decide potentially dispositive issues early in the case?

Generally, yes.  I think that “slicing the salami” in an arbitration has the potential to be very productive but I should say that identifying dispositive issues early does not necessarily mean that they will be decided early in most of the cases.  I just think that identifying them is likely to be beneficial and deciding on them needs to be determined based on the legal and factual considerations of each case.

  • Taking of evidence in arbitration: are you IBA Rules or Prague Rules?  And why?

I have studied law in both civil and common law systems and do not favor either one on principle.  I am mindful of the fact that procedurally, arbitration is often complex and it can sometimes be a burden for less sophisticated parties.  I therefore agree with the attempts of the Prague rules drafters to bring increased efficiency into the arbitral proceedings.  My general view is that it is best for the parties to settle in an interest-based proceeding, rather than to conduct a high-end position-based process to its end.

As I have mentioned above, I do participate as an wingman arbitrator but generally not as a presiding arbitrator because I believe that as a presiding arbitrator focusing on the positional legal process, I am not helping parties in the best most constructive manner.

What do you see as the next “big thing” in global dispute prevention and resolution?

Parties’ empowerment.  It is already happening and the parties who take responsibility for their contribution to the dispute and who ramp up their communication skills will successfully retake control of their disputes.  Parties that are skillful in recognizing all involved interests clearly and communicating properly about them are likely to diminish the overall number of unresolved disputes significantly.  Therefore, ubiquitous, everyday application of the advanced communication techniques by the parties themselves is going to make a sea change in the dispute resolution field.

For which types of conflicts would you recommend ADR?

All, and I do not say that lightly, I have come to that conclusion based on my experience that regardless of the nature of the dispute, joint efforts to resolve issues are successful in any arena when the parties put in genuine effort.  In some fields, the percentage of success might be lower, but communicating properly will continue to be of the utmost importance.

In your view, what makes CPR unique?

For me, CPR will remain unique as it was one of the first globally reputable mediation centers I was associated with.  This happened at the time of cooperation between CPR and INTA while Peter Phillips was still involved, back in the mid Nineties.  The degree of conviction in the strength of mediation that I have witnessed at CPR impressed me a lot and the great skills of the mediators associated with the Center has had a lasting impact on me.

Do you have any concluding remarks you would like to share?

It was Peter Phillips, whom I have mentioned above, who welcomed me warmly and took me for lunch during my first visit to the CPR offices.  It was immediately after an INTA meeting where Peter spoke with strong conviction and unabashed emotion about the benefits of mediation.  As someone with a background in rock culture, I was pretty much persuaded that this type of personal attachment to the cause is superior to the distanced ways so many of our colleagues choose to adopt.

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Jennifer Kirby”

The CPR European Advisory Board (EAB) continues it series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A with Jennifer Kirby.

Jennifer is the founder of Kirby in Paris, France.  She acts as counsel, party-appointed, sole arbitrator and chairman in arbitration proceedings under a variety of arbitration rules.  Her experience spans a wide variety of industry sectors.  In addition to CPR’s Panel of Neutrals, Jennifer is listed on the panels of many other international arbitration institutions around the world.  Prior to creating her own boutique arbitration firm, Jennifer was a partner at a large law firm (2008-2010), the ICC Deputy Secretary General (2005-2007), ICC Counsel (2002-2004) and an associate with large U.S. law firms.

Jennifer kindly agreed to grant us an interview.  Here are her insights:

1. How did you get your start as a neutral?

When I went to law school at the University of Virginia, there were no classes in international arbitration.  And if there had been, I probably would not have taken them.  I never took any international law classes or even had any interest in anything with the word “international” in it.  A more provincial American law student would have been hard to find.

On my first day as an associate at Simpson Thacher, the assigning partner told me he was putting me on an international arbitration with Jack Kerr.  I said, “What’s an international arbitration?”  He said, “You’ll figure it out.”

As I began working on my first arbitration, it was not too different from working on my domestic litigation cases.  As an associate, I was doing pretty much the same work – e.g., drafting briefs (but they were called submissions), preparing affidavits (but they were called witness statements), reviewing documents as part of discovery (but it was called disclosure).  There was, however, one thing I could do in arbitration that I could not do in domestic litigation: live in Paris. 

It was this realization that prompted me to seek out as much international arbitration work at the firm as I could.  After about three years, I spoke with Rob Smit and told him that (1) I wanted to work exclusively in international arbitration and (2) I wanted to live in Paris – neither of which were possible at Simpson at that time.  I asked Rob if he could help me find a job.  He said, “Maybe you could get a job at the ICC.”  I said, “What’s the ICC?”  He said, “You’ll figure it out.”

All told, I spent six years at the ICC – first as Counsel and then as Deputy Secretary General.  It was at the ICC that I really learned the ins and outs of international arbitration.  The ICC is to arbitration what SEAL training is to combat.  The learning curve is steep, and the work is demanding.  But by the time you leave the institution, you know how to handle pretty much any situation an arbitration can throw up.

I received an appointment as co-arbitrator from the LCIA not long after leaving the ICC to rejoin private practice.  At that point, I had already been working exclusively in international arbitration for about ten years and was a known quantity to people at all the major arbitral institutions.  While some institutions require you to have had a case before they will give you one, others are open to giving new arbitrators their first opportunity.  Thankfully, the LCIA was willing to take a chance on me.

2. Who is your dispute resolution hero/heroine?

Robert Briner.  Dr. Briner was the chairman to ICC Court during most of the years I worked there.  I had the pleasure of seeing him regularly and working with him quite closely for about five years.  That he was a giant in the field cannot be gainsaid, but saying this understates his significance to me, which is more personal.  He combined integrity, intelligence, practicality and diplomacy in a way that made him not just an inspiration, but a kind of guiding light.  To this day, when faced with a particularly tricky situation, I ask myself, “What would Dr. Briner do?” 

3. What is the one advice you want to give to the younger generation looking for a first appointment as neutral?

Once you have some meaningful experience as counsel under your belt, meet with arbitral institutions and let them know that you want to start sitting as arbitrator.  CPR, as well as the ICC and the LCIA take a keen interest in raising the next generation of international arbitrators and giving new people a shot.  As more senior people become increasingly oversubscribed, this is essential.

4. Were you ever the first in doing something?

Given that I am young (by arbitration standards), I doubt that I am the first to do anything.  Everyone in my generation necessarily stands on the shoulders of those who came before us.  Having said this, I believe that when I started my own boutique arbitration practice in 2010, I was among the first people to do so. 

At that time, clients were especially cost-conscious in the aftermath of the 2008 financial crisis.  How to Reduce Time and Cost became the prevailing theme at arbitration conferences around the world.  I started my boutique to offer top-flight arbitration expertise for smaller disputes where it would not be cost effective to engage a large firm. 

What surprised me, though, was how many arbitral appointments came in.  At that time, I was focused on acting as counsel and it had not occurred to me that this would happen.  But I’m glad it did.  For me, sitting as arbitrator is an honor, a privilege and a passion. 

5. What makes your conflict resolution style unique?

I make a point of knowing the file well from the beginning of the case through the award.  This allows me to manage the case proactively and efficiently and to take correct decisions quickly from beginning to end.  This may not be unique – indeed, I hope it is not – but (sadly) many lawyers have told me that it is rare.

6. What was the most difficult challenge you faced as a neutral?

I am often appointed in cases that promise challenges even many experienced arbitrators would have trouble managing.  So much so that, at this point, it is probably fair to say that I specialize in difficult cases.  The challenges I have faced are so numerous and varied that I cannot say which has been the most difficult.  Nor would I want to try, as describing the situations would necessarily entail disclosing circumstances that would be identifiable at least to the people involved and perhaps others.  Instead, I will simply make an observation. 

In 2009, Global Arbitration Review held a roundtable discussion in Paris on The Dynamic of Time and Cost.  At that event, Emmanuel Gaillard said that two attributes arbitrators should have are the “ability to anticipate” and “courage”.  As an arbitrator, it is not enough to keep up with a case.  You need to be thinking several steps ahead – anticipating the parties’ likely next moves and what will be coming down the pike.  And when the moment arrives for you to take a decision, you have to have the guts to take the correct one – come Hell or high water.  Unfortunately, too many arbitrators lack the courage to do so. 

7. What is the most important mistake you see counsel make?

Counsel in my cases are generally superb.  One of the great pleasures of sitting as an international arbitrator is seeing excellent advocacy.   In my experience, mistakes are rare – and important mistakes are even rarer. 

Having said this, I have occasionally had counsel who try to capitalize on the due process paranoia that at times seems more rampant than the coronavirus.  I am, however, immune to that particular disease.

8. If you could change one thing about commercial arbitration, what would it be?

I would have far more cases decided by sole arbitrators instead of three-member arbitral tribunals.

In 2009, I challenged the prevailing party preference for having three-member tribunals in my article With Arbitrators, Less Can Be More: Why the Conventional Wisdom on the Benefits of Having Three Arbitrators May Be Overrated.  There, I contended that, from a systemic perspective, having three arbitrators as opposed to one does not generally improve the quality of the arbitral process or the award and may actually do the opposite.  Any increased confidence parties have in the arbitral process from having three arbitrators is accordingly misplaced.

I wrote that article before I had ever served as arbitrator based on my experience at the ICC, where I participated in the administration of approximately 3000 international arbitrations and read and critiqued over 1000 draft arbitral awards.  Since then, my more granular experience sitting as arbitrator has only confirmed my views.  Given parties’ attachment to having party-nominated co-arbitrators, however, I do not have high hopes that the preference for three-member tribunals will abate any time soon.

9. Some specific topics:

a) What is your approach to cybersecurity and data protection in international dispute resolution?

CPR and FTI Consulting have developed a superb series of training modules on cybersecurity and data protection.  They explain the nature of the threats that currently exist, the duty arbitrators have to mitigate the risk they pose, and the practical steps arbitrators can take to do so depending on the particular circumstances of their practice.  I have found this series to be invaluable. 

And I can’t see the word cybersecurity without immediately thinking of Stephanie Cohen.  Steph is my go-to guru for all matters related to cybersecurity and data protection.  She is as practical as she is knowledgeable.  I cannot overstate how much I have benefitted from her expertise and guidance.   

b) Taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?

IBA Rules.  The IBA Rules reflect the prevailing consensus with respect to the taking of evidence in international arbitration.  In Procedural Order 1, I typically note that I may refer to the IBA Rules for guidance in the conduct of the proceedings and no party has ever objected to this or suggested that I should refer to the Prague Rules instead. 

In all events, however, I am not sure that the two sets of Rules would be as different in practice as one might think.  This is because the differences seem to me to be more matters of emphasis than fundamentals. 

Both the IBA Rules and the Prague Rules give arbitrators ample discretion to craft solutions that make sense in light of the circumstances of the particular case.  Does a reference to one set of Rules as opposed to the other lead arbitrators to exercise their discretion in a materially different way?  Maybe.  But if I had to guess, I’d say, “Probably not.”  Unless and until the Prague Rules gain greater currency, however, it’s hard to know.

10. What do you see as the next “big thing” in global dispute prevention and resolution?

I will be interested to see how expedited rules may come to affect arbitral rules more generally.  Many institutions now have expedited rules that provide for streamlined proceedings.  These rules are often designed with smaller cases in mind, but it may be that they ultimately point the way to making arbitral proceedings more efficient across the board. 

11. For which types of conflicts would you recommend ADR?

I am usually hesitant to suggest ADR to parties appearing before me.  In the cases where I sit, the parties and counsel are almost universally sophisticated and experienced.  I figure that they are aware of mediation and other forms of ADR and have considered those options.  If they have not gone down that route, there is usually a good reason. 

Having said this, I have on rare occasion had cases where I have suggested mediation at the outset.  These cases typically concerned situations where the parties had an ongoing relationship that it would be to their mutual advantage to preserve and the dispute seemed to arise from a breakdown in relationships between key individuals.  In short, they were textbook examples of the types of situations that can often be successfully mediated. 

In these circumstances, I suggested that the parties might want to consider mediation and explained why – not because I thought the parties had failed to consider it, but to clear my own conscience.  I just didn’t feel comfortable moving ahead with the arbitration without disclosing to them that I thought mediation might well allow them to reach a more constructive outcome more quickly and more cheaply.

12. In your view, what makes CPR unique?

CPR is a think tank that general counsel created 40 years ago to find ways to prevent disputes and promote the efficient resolution of any disputes that do arise.  Through CPR, in-house counsel, practitioners, neutrals and academics collaborate to find innovative solutions to some of the field’s most vexing problems.  It is CPR’s members who develop its rules to ensure that they are always in sync with users’ needs.

13. Do you have an anecdote you would like to share?

My decision to leave New York and go to the ICC was more fraught than one might initially assume.  While I wanted to move to Paris and specialize in arbitration, it also required me to step outside my comfort zone.  Apart from a college year abroad at Cambridge, I had never lived outside the US.  My French was rusty (to put it mildly).  Since law school, I had only ever worked in large law firms.  Leaving Big Law in New York for the ICC would mean leaving all my friends.  It would also mean taking a hefty pay cut. 

As it came time for me to take my decision, I started getting cold feet and felt unsure about what I should do.  I called Hans Smit to talk things over.  He listened patiently as I explained my fears and reservations and then said, “Jennifer, will you please just go and lead an interesting life.”  Thanks to Hans, that is what I’ve been doing ever since.

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Catherine Peulvé”

The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A, with Catherine Peulvé, a commercial lawyer and mediator, CPLAW Paris, France.

  1. How did you get your start as a neutral?

I can date my start as a Neutral to the opening in Paris (France) of my law boutique CPLAW in 2007. Indeed, after several years with UK and US law firms (Freshfields Bruckhaus Deringer LLP/Cleary Gottlieb Steen & Hamilton LLP), including practicing abroad, I realized that despite being a lawyer and having gained a huge amount of experience as a litigator, I did not know so much about negotiation and mediation.

2. Who is your dispute resolution hero/heroine?

Charles-Maurice de Talleyrand, he is said to be the “Prince” of negotiators.  He is known for excellent preparation, obtaining and exploiting the necessary information, winning concessions and using lobbying strategies at private receptions: all principles that are still prevalent both around and outside the negotiating table.

3. What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?

“Give me six hours to chop down a tree and I will spend the first four sharpening the ax, ” said Abraham Lincoln, former president of the US. Thinking about this sentence, my advice to the younger generation would be learn how to learn and improve before doing. In other words, they must be well prepared. You can work hard as a neutral during sessions, but the magic happens when you have spent time preparing, structuring the process and perfecting your skills.

4.   Were you ever the first in doing something?

–     First women president of the Association for Business Lawyers (ACE) – Paris Section
–     First lawyer in my family
–     Winner of the Freshfields – Les Echos prize that launched my international career
–     Major of my student promotion at the Master’s Degree in Business and Economic, University of Panthéon Sorbonne Paris (1990)
–     Head of list of the ACE business lawyers for the election of the French National Council of Bars (CNB)

5. What makes your conflict resolution style unique?

I have been described, when appointed in a major, long-lasting, multi-dimensional mediation concerning a conflict that had been made public by the other side, as an outstanding mediator that managed the whole process in an extremely efficient manner, both in terms of ensuring the overall tone of the mediation and keeping the mediation on track over time.

My style is facilitative and I combine self-confidence with a sound command of the mediation framework, techniques and tools.

I invest time in training, keeping abreast of new tools that may enrich my practice.

6. What was the most difficult challenge you faced as a neutral?

The absence from the mediation table of a key family member in a complex inheritance and partnership dispute involving a real estate company. One of the sisters was  represented by her husband.  There was an uncomfortable atmosphere (the sister was kind of a “ghost” in the mediation), and I felt like the sessions were being recorded but I could not raise this issue upfront.

7.   What is the most important mistake you see counsel make?

Pleading their case rather than adopting a less adversarial style.

8.   If you could change one thing about commercial mediation [please chose one], what would it be?

Compulsory mediation: the French law of 23 March 2019 which reformed the justice system, introduced two new rules for amicable ADR: the principle of compulsory prior mediation in certain disputes and the possibility for any judge, in any matter, to order the parties in dispute to meet with a mediator. While the second option is a potentially interesting path, I regret the inclusion in our legislation of the first option (compulsory mediation), even on an experimental basis, for a number of reasons. It is inconsistent with the principle that the parties must be willing to mediate, particularly in commercial disputes, bringing them to the table before they are ready is unlikely to be beneficial.  Compulsory mediation undermines the principle of confidentiality which is the backbone of the success of mediation.  It is for the parties alone to determine the application of confidentiality obligations to their process, including with respect to the content and the outcome of the mediation as well as its existence. Making mediation compulsory obliges the parties to make the existence of their process public.  The new requirement could be counterproductive: for example, if the parties do not reach an agreement, it will obviously be very difficult to convince them to go to “real” mediation.

9.   Some specific topics:

What is your approach to cybersecurity and data protection in international dispute resolution?

Data security is important in all matters, including in dispute resolution. With respect to international dispute resolution, one must not only be cognizant of the requirements under the European General Data Protection Regulation but also of requirements in territories other than Europe and how the two sets of requirements operate (or not) in combination. As far as cybersecurity is concerned, we need to be attentive to protecting the confidentiality of information shared (arbitration and mediation, plus caucus confidentiality in mediation) and to choose the right tools to achieve that. So far as I am aware, CPR has been at the forefront of several pioneering initiatives in the field of cybersecurity and data protection over the past few years. 

10. What do you see as the next “big thing” in global dispute prevention and resolution?

The impact of the Singapore Convention on international business mediation.  I would like to share links to an abstract of an article I contributed to recently with other lawyers (French, Italian, Lebanese, Greek) on this subject : https://www.actualitesdudroit.fr/browse/civil/procedure-civile-et-voies-d-execution/26916/the-impact-of-the-singapore-convention-on-the-international-business-mediation

http://giustiziacivile.com/arbitrato-e-processo-civile/approfondimenti/limpatto-della-convenzione-di-singapore-sulla-mediazione

11. For which types of conflicts would you recommend mediation?

I think there are several good reasons for opting for mediation in business disputes:

–     Long term relationships can generally be maintained
–     Confidentiality is preserved
–     Offers an exit from a deadlocked situation
–     Helpful if the legal background is complex or there is a lack of proof
–     The financial consequences of the conflict would be too high to risk in litigation
–     It is a matter of urgency

There are also good reasons for NOT initiating or stopping a mediation process :

–     Bad faith of one of the parties
–     A third party is missing (ex. insurer)
–     A third party does not want to change its position/demand
–     A judicial decision is needed (Public order, precedent, publicity…)

12. In your view, what makes CPR unique?

Before I joined, I was impressed by CPR’s reputation and amazed by its detailed and accurate communications on several ADR issues worldwide. Since joining, I have been convinced that CPR possesses the appropriate skills, tools and talents for being a major ADR Center and I have been impressed with its reactivity to the Covid-19 crisis.  In particular, with the training webinars, information sharing, messages to Neutrals to stand together and find solutions.

CPR = energy + information + sharing + adaptability

13. Do you have an anecdote you would like to share?

I was once asked by a mediation Center to draft a default report because one of the parties refused to enter into the mediation process.  I was able to transform the situation into a fruitful and effective mediation, that ended with a successful and long term agreement between the companies.

I have been asked sometimes to give my tips on how I achieved this turn around. Although it is quite difficult to answer that question, I can share the following : (i) I urged the party not wishing to enter into the mediation process to be present at this meeting, and to be represented by one of its top guys; (ii) I was careful to ensure my attitude was very optimistic when meeting with the parties; (iii) I started to explain the rules and purpose of a mediation process.  Finally, the top guy, who made the effort to come and who had spent some time listening to what a mediation process entailed, probably understood that it was worth trying. Once we had reached that stage as part of the same meeting, I was meticulous about structuring the process (number of meetings /topics on the agenda / topics per meeting / participants and experts per topic…) and the rocket was launched to go for exploration.

UN Report Lauds Mediation Expansion

By Seorae Ko

In its 2019 annual report from its Office of the Ombudsman for United Nations Funds and Programmes, released in May, the United Nations celebrated significant progress in expanding mediation as a method of solving workplace conflicts.

The report identified it as one of “the greatest achievements of the past year.”

The Ombudsman Office has emphasized mediation use as a way of intervening in the UN’s internal workplace disputes. The office, which helps UN staff “resolve workplace conflicts in an informal, confidential manner with the aim of maintaining a harmonious workplace environment,” provides an informal grievance procedure for several big UN agencies and programs.

In 2018, the executive director at UNICEF, one of the UN agencies the Ombudsman office serves, commissioned an Independent Task Force on gender discrimination and harassment issues. As recounted in the recent Ombudsman Office annual report, the ITF report identified a number of areas that demanded improvement. In response, the executive director put forth immediate measures, one of which promoted the expansion of UNICEF’s mediation services.

Consequently, UNICEF moved to strengthen its mediation capacity and to provide a systematic, informal mediation option for workplace disputes. The effort included the creation of a team of “on-call external mediators” in the Office of the Ombudsman. To improve the reach and quality of services provided by these external mediators, a variety of measures have been adopted.

The Ombudsman Office’s Global Mediation Panel mediates workplace disputes worldwide. The annual report explains that the initial panel members have been identified, selected, and trained by the office in consultation “with some of the world’s leading mediation organizations as well as with the ombudsman offices of other international organizations.”

The goal is to have one or two on-call mediators available in every country where UNICEF has a presence.

In terms of quality, the Office of the Ombudsman now contains a Mediation Specialist and a Mediation Officer, who work toward uniformity in mediation services. They ensure that mediators heed to UN regulations and rules, and follow a mediation code of conduct developed by the Office.

The Office has also embedded quality control mechanisms in the mediation process, by allowing mediation users to discuss their concerns through surveys, with the Mediation Specialist, and with the Ombudsman directly. The office’s International Advisory Board further aids users in addressing their complaints, acting as a potential check on the Ombudsman’s recommendations.

The profiles of external mediators and board members are posted on the Office’s website to ensure transparency. See: https://fpombudsman.org/global-mediation-panel.

UNICEF has complemented the above measures with broader policy updates that increase support for mediation. New rules spell out that staff members are “strongly encouraged” to seek informal resolution mechanisms, including mediation, to “avoid unnecessary litigation.” The rules also allow organizations to suggest mediation to staff members. The report comments that, although these changes fall short of an opt-out mediation model, they are conducive to increasing the use of mediation.

Furthermore, the report identifies that the Office of the Ombudsman’s efforts have been successful because they found the sweet spot in boosting both supply and demand for mediation. The supply side includes having an appropriate number of mediators and providing a solid regulatory framework. The demand side includes training in, and promotion of, mediation services.

The report suggests that past attempts to expand mediation produced lukewarm results because they failed to address this double-sided need. For years before 2019, the United Nations attempted to “make mediation the ‘natural’ step to deal with employment disputes.” In its 2015 annual report, the Ombudsman’s Office had already identified mediation’s potential as a key tool in workplace dispute resolution, and commented on its underutilization.

In 2016, the office observed the positive impact of mediation in cases involving several stakeholders and a substantial degree of complexity. The 2017 and 2018 reports took it a step further, proposing an opt-out system of mediation, which was not adopted.

But the 2019 annual report shows that the office’s continued interest in mediation produced results. The latest report promotes mediation as a procedure that could both save significant resources in the pre-litigation stage and promote important values including self-determination and confidentiality. The report also warns that “successful dispute-resolution programmes worldwide include clear procedural disincentives to those who try to bypass mediation.”

These comments suggest that the United Nations will continue pushing hard to establish mediation as a preeminent pre-litigation procedure. Giuseppe De Palo, the Ombudsman for United Nations Funds and Programmes, described that “[the Office] took a clear position” in the report on “how to make mediation become mainstream.

The Office of the Ombudsman’s annual reports are available here; the office’s home page can be found at https://fpombudsman.org.

* * *

The author, a CPR Institute 2020 Summer intern, is a second year student at Harvard Law School.

Building a Boot Camp for New York’s New Presumptive ADR

By Yixian Sun

The New York State Unified Court System introduced presumptive alternative dispute resolution, with a focus on court-sponsored mediation, last year. 

Under this statewide initiative, parties in a wide range of civil cases–from personal injury to matrimonial cases, to estate matters and commercial disputes, and more–will by default be referred to mediation as the first step in the case proceeding in court.

In response to the Covid-19 outbreak, New York State Chief Administrative Judge Lawrence K. Marks boosted last year’s efforts by recently issuing Administrative Order 87-20, authorizing judges to “refer matters for virtual alternative dispute resolution, including to neutrals to court-established panels, community dispute resolution centers, and ADR-dedicated court staff.” (See the order at https://www.nycourts.gov/whatsnew/pdf/AO-87-20.pdf.)

On June 10, the leadership of this court initiative conducted a webinar to update the legal community with the past achievements, recent developments, and future implementation plans of the presumptive ADR systems. The webinar was sponsored and hosted by the ADR program at New York Law School.

The panel included Danielle Shalov, an adjunct professor of the New York Law School and the director of NYLS’s Mediation Clinic; Lisa Courtney, the Statewide ADR Coordinator for the New York State Unified Court System; Joan Levenson, the principal law clerk to New York County Administrative Judge Deborah A. Kaplan, New York County, Civil Branch, and counsel to the New York State Judicial Committee on Elder Justice; Jean Norton, the ADR Coordinator for the Supreme Court of New York County; and Daniel Weitz, the Director of the Division of Professional and Court Services for the New York State Unified Court System. (For a comprehensive list of staff contacts in the ADR Office, see http://ww2.nycourts.gov/ip/adr/contactus.shtml)

This video event attracted a diverse audience. Many participants noted in response to an informal survey at the program’s outset that they were interested in mediation and joining in the court rosters, but had not mediated before. The webinar’s primary focus, therefore, was largely on helping the participants build their capability and capacity on presumptive ADR.

“ADR,” traditionally known as alternative dispute resolution, now stands for “appropriate dispute resolution” as well. The message is clear. As Courtney pointed out, different resolution methods are suitable for different cases. After all, in most contexts, parties have been going through a hybrid process, where litigation and negotiation happen in turn until a resolution is reached.

This reality serves as the background against which courts in New York State are trying to switch the default to the less adversarial dispute resolution methods from litigation.

Presumptive ADR is not only about enhancing effectiveness and efficiency, noted Courtney, but also about promoting a greater sense of procedural justice. The initiative calls for a redefinition of a successful dispute resolution–a process where parties are given a chance to express their feelings and have their personal experience understood by the neutrals.

Dan Weitz explained that the basic infrastructure of presumptive ADR was developed through a process of collaborative program design, where various stakeholder groups, including local judges, court administrators, and bar members gathered to devise a set of protocols that would govern the program at the local level.

Two issues emerged the most controversial.  One is the nature of referral–should the ADR method be selected by parties’ voluntary choice or under judges’ discretion? The second is how to increase ADR program use at grassroots levels.

* * *

Lisa Courtney led the participants through the history of the still-new court orientation of presumptive ADR. In Spring 2018, Chief Judge Janet DiFiore and Chief Administrative Judge Marks announced the formation of a Statewide ADR Advisory Committee chaired by John Kiernan, who at the time was the New York City Bar Association president, a partner in New York’s Debevoise & Plimpton–and also immediate past chairman of the board of the CPR Institute, which publishes this blog.

In early 2019, the ADR Advisory Committee issued its first interim report. The Committee recommended that the New York State court system significantly expand its statewide infrastructure for developing court-sponsored ADR; promulgate statewide uniform rules; increase connections with Community Dispute Resolution Centers; encourage and educate about court-sponsored mediation; and develop mechanisms to evaluate and monitor individual programs. (See at https://ww2.nycourts.gov/doc/18791.)

New York Chief Judge DiFiore embraced the interim report, and the initiative, wholeheartedly. In February 2019, DiFiore immediately announced the Presumptive ADR Program as a part of her Excellence Initiative. Soon after that, DiFiore and Chief Administrative Judge Marks charged the Deputy Chief Administrative Judges, Judge George Silver for New York City and Judge Vito Caruso for outside New York City, to implement the Presumptive ADR program. Throughout summer 2019, district administrative judges around the state worked with their court staff to develop and refine plans to realize this vision.

Since then, the NYLS seminar panelists reported, a massive training was conducted involving more than 550 attendees, including more than 300 court staff. The trainings varied. Some were 90 minutes, some were day-long settlement skills workshops; some required 24-hours over multiple days, and still others were comprehensive 40-hour, multi-day sessions.

The trainings were designed as an integral part of the stakeholder engagement.  For court staff, the efforts were designed for infrastructure building, to construct ADR confidence, familiarity and trust in public employees who would send the parties to mediation and other ADR services. The training also served to address the concerns of litigators and mediators who might have felt that they would no longer perform familiar tasks in a familiar forum.

Meanwhile, protocols and templates were drafted, an ADR SharePoint Intranet site was created for judicial districts to learn from each other’s experiences, webinars were hosted, and an ADR case management database was built to track efforts at local courts. The official ADR page of NYS Unified Court System can be at http://ww2.nycourts.gov/ip/adr/index.shtml; it’s an information hub for those who are interested in learning about and using New York state presumptive ADR services.

In the July/August 2019 Edition of Alternatives, the CPR Institute described the early details of the presumptive ADR program, citing Kiernan’s comments, that court-sponsored mediation “is a great vehicle proven to deactivate [litigants’] adversary synapses and activate their problem-solving synapses before they send a lot of time and resources fighting the dispute.” See “‘Presumptive Mediation’: New York Moves to Improve Its Court ADR Game,” 37 Alternatives 107 (July/August 2019) (available at https://bit.ly/2Cb2h8g).

Earlier this year, this CPR Speaks Blog reported the latest progress in the implementation of this initiative. (See at https://blog.cpradr.org/2020/01/27/progress-report-new-york-courts-presumptive-adr-settles-in/)

* * *

Understandably, the NYLS panelists acknowledged, resistance continues to exist, and there are ways to deal with it. One solution discussed by the panel is to start in places with pre-existing infrastructure. For courts that are already equipped with rules and rosters, the task is to enhance use and to grow the presumptive ADR program to include more case types. Judicial districts were also invited to conduct a self-examination to find out in which areas the presumptive ADR efforts would be most useful in deploying to ease the caseload. The essence of reform, after all, is to address the real concerns of stakeholders, the panel pointed out.

This statewide effort to promote usage of ADR methods has been receiving massive support from the county level—even before May 2019 when the official announcement to implement presumptive ADR program was made.

Panelist Joan Levenson introduced the “Presumptive Early Mediation Program for Non-Commercial Division Commercial Cases” as a successful and illuminating example of the county court’s undertaking. This program was launched in May 2017 and called for automatic referral for certain types of commercial cases to mandatory mediation. It has been expanded ever since and graduated from its pilot status.

Cases involved usually have an amount of controversy under $500,000—contract cases below New York County commercial division jurisdictional limits (statewide limits available here) —which make up the majority of the New York County civil branch’s caseload.

Under this program, after filing a request for judicial intervention and before meeting the judge, counsel and parties will attend a preliminary conference held by New York County Supreme Court Senior Settlement Coordinator Kevin Egan. In this conference, parties discuss the discovery needed to conduct a fruitful mediation.

Then, a mediator from the commercial division roster will be assigned, and the mediation scheduled, usually within 30 days after the end of the exchange of information. Consequently, around 60% of the cases will be settled.

Not every pilot program turned out to be impressive. In 2014 to 2016, the New York Supreme Court—the state’s trial court—had launched a “One-in-Five Pilot Project.” As the name suggested, every One-in-Five cases was sent automatically to mediation.

Joan Levenson raised two reasons to explain why this project did not work. First, many referrals were not appropriate for mediation, and thus not enough cases were generated. Second, attorneys were allowed 120 days from the filing to choose a mediator or have one assigned. In many cases, the counsel simply did not respond.

But important lessons were learned, Levenson reported. First, arbitrary selection of cases for mediation does not always work. Second, to move things forward, the court needs to set a shorter period for the mediation to take place.

Another challenge faced by the courts seem to be the overzealous representation. Fortunately, panelist Jean Norton noted, many attorneys, after attending mediation with clients for several times and seeing the positive consequences, have become much more supportive of ADR. Even those who do not support ADR wholeheartedly will accept it for the clients’ interests. The key, she said, is to push the attorneys to transform the traditional mindset, and to rethink about how they can support their clients in a most constructive way.

Joan Levenson added that the 40-hour mediation training changed many litigators’ views. In fact, said Norton, the New York County Supreme Court’s matrimonial mediation rosters include some well-known matrimonial attorneys who used to object completely to the idea of mediation, but ended up joining the roster after developing a better understanding of mediation via training.

Indeed, the New York State Court System requires those who want to become mediators take a series of trainings before getting on board. As moderator Danielle Shalov described, the requirement is designed as a mix of a unified boot camp plus personalized mediation-related experience.

Under Part 146 of the Rules of the Chief Administrative Judge, “Mediators who wish to qualify for appointment to a court roster must have successfully completed at least 40 hours of approved training,” including “At least 24 hours of training in basic mediation skills and techniques,” and “At least 16 hours of additional training in the specific mediation techniques pertaining to the subject area of the types of cases referred to [the mediators].” (Part 146 details can be found at http://ww2.nycourts.gov/ip/adr/Part146.shtml.)

Besides the training, Part 146 also calls for “recent experience mediating actual cases in the subject area of the types of cases referred to [the mediators].” Lisa Courtney explained that this requirement is flexible. Those who are interested can join formal apprenticeship, seek for informal mentorship, or participate in co-mediation.

It is up to the discretion of the local administrative judge to decide what kind of experience fulfills the requirement, what additional qualification is needed, and who is finally placed on a mediation roster.

Finally, mediators should attend “at least six hours of additional approved training relevant to their respective practice areas every two years.” Specific design of such training falls within the discretion of local ADR coordinators, since each court has its unique demands.

Attorney-advocates are welcomed to get involved and increase their familiarity with mediation as well. Last year, Levenson said, a CLE program called “ADR options in New York County” attracted a great litigator attendance.

Trainings are also available for specific practice areas. For instance, as Norton mentioned, the New York County Supreme Court has offered domestic violence training for mediators in matrimonial cases.

* * *

Once they have gathered enough technology support, courts are prepared to resume trainings interrupted by the coronavirus. Norton named a list of opportunities in the New York County Supreme Court: mediator orientation, trainings to transport previous best practices for future court mediations, and short sessions designed to ease the burden of 40-hour training and to highlight necessary skillsets.

What’s more, to address a diverse composition of case types and parties, courts at state and county levels are working together to build a sufficiently diverse roster.

According to Dan Weitz, the court system is connecting with as many diverse bar associations as possible in recruitment of mediators, and has included cultural competency is included as a part of the mediator training.

A diversity statement has been added to the mediator application process, added Lisa Courtney, through which applicants can demonstrate how can they contribute to a more diverse roster with their personal identities, cultural backgrounds, life experience and language skills.

And court staff are a wonderful resource, Courtney said.  She noted that many court attorneys have diverse backgrounds and close connections with the local community. They can serve as trusted neutrals as well.

At the county level, the recently-launched Presumptive Matrimonial Mediation Program serves as an illustration. To deal with the highly personal issues, the New York County Supreme Court devised an extensive recruiting processes to attract mediators and attorneys with diverse backgrounds, foreign language skills, and family law expertise.

Covid-19 disrupted the original implementation plan. But Norton explained that since traffic and location is no longer a problem for Zoom mediation, neutrals with diverse backgrounds that meet the parties’ needs but live far away have become more accessible.

Despite the pandemic, the presumptive ADR initiative has continued. Jean Norton admitted that there is a learning curve for virtual mediation. Whereas it is hard for mediators to conduct their first mediation on Zoom, the experience improves with more practice.

In the matrimonial context, the concerns are different. Parents don’t want their children overhearing their divorce mediation, and mediators have to plan for a variety of factors and emergencies. It is also harder to physically separate hostile parties, so mediators have to think creatively to prevent conflicts from escalating in a single space. At the same time, virtual mediation means no time wasted on transportation and no alternative babysitting arrangement needed.

* * *

A final point: New York does not have statutes to order people to pay their mediators, but there are ways to help the mediator’s hard work get rewarded, explained Statewide ADR Coordinator Lisa Courtney. Under the May 1 Administrative Order 87/20 noted above, courts can order parties to participate in a short, initial mediation session. When parties see the value in such processes, they may continue under an agreement to pay.

As many elements of the presumptive ADR initiative, this is how fundamental changes have been brought: invite stakeholders to participate, let them see the real benefits, and build a trusted relationship.

* * *

Editor’s Note: A video of this event can be found at https://bit.ly/3ehMenh. For details of a court-approved Part 146 Initial Mediation Training, hosted by the New York Law School, https://bit.ly/2ChuAlu. 

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The author, a second-year Harvard Law Student, is a CPR 2020 Summer Intern.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Bart Neervoort”

bart

The CPR European Advisory Board (EAB) continues its series, “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its fourth Q&A, with Bart Neervoort, from the perspective of a mediator.

Bart is an international trial lawyer turned full-time mediator and arbitrator, based in the Netherlands.  Over the last ten years he has handled disputes in diverse areas including construction, shipbuilding, professional negligence, medical malpractice and shareholder disputes.  He has been an arbitrator for NAI, ICC (Paris), UNUM (Rotterdam), LCIA (India) and CIETAC (China).  These days his practice focuses on mediation and he is a certified mediator for MfN, IMI, ICC (Paris), CEDR (London) as well as a CPR Distinguished Neutral. 

How did you get your start as a neutral?

As a committed litigator I was skeptical when the High Court in London suggested mediation in a case I was involved in before the case actually went to trial. I was more than surprised that the case settled in a day!

Who is your dispute resolution hero/heroine?

Among many others, I would say David Hoffman and Michel Kalepatis. David’s teaching at Harvard’s Summer School left me and other experienced mediators in awe as he demonstrated how to overcome the most challenging of deadlocks and keep the most difficult people at the table. And Michel is simply the Godfather of mediation in Europe!

What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?

Don’t be too keen as a mediator on reaching resolution. When you start mediating, you tend to think settlement is your success and failing to reach agreement is your failure. My experience has been that one can overstretch your skills if you are too eager. Let the parties do the work. It is their process. You are there to guide them. Keep in mind, it is their resolution, not yours and their problem if they do not resolve their dispute.  Finally, don’t boast about your success rate.  Remember, you are there for the parties.

Were you ever the first in doing something?

Yes, I was the first Dutchman to do an ICC mediation (between a UN Body and a Greek party).

What makes your conflict resolution style unique?

I would like to think, that showing my own vulnerability to the parties works well.  Also, my sense of optimism about the outcome of the dispute and, of course, humor always helps!

What has been the most difficult challenge you have faced as a neutral?

Mediating between two very stubborn 88 year old shareholders!

What is the most important mistake you see counsel make?

They often fail to realize that in order to reach settlement at mediation it is extremely unhelpful to position oneself as the “opposing side.”  Settlements are reached together.

If you could change one thing about commercial mediation, what would it be?

I would make mediation advocacy compulsory in lawyers’ training programs.

Now let’s turn to a specific topic: what is your approach to cybersecurity and data protection in international dispute resolution?

I believe the dangers are currently underestimated and neutrals should have proper protection in place and be accountable for that to the parties.

What do you see as the next “big thing” in global dispute prevention and resolution?

Dispute prevention being recognized for what it’s worth in all layers of the business community. Resolution of disputes by the parties themselves being recognized by lawyers as something that is really beneficial for their clients.

For which types of conflicts would you recommend ADR?

I believe you can use ADR for almost any commercial or corporate dispute.

In your view, what makes CPR unique?

The way in which it has been able to mobilize both the corporate and legal US communities to draw up Dispute Resolution Pledges and offer a forum for ADR. If only CPR could reach the same standing in Europe!

Do you have an anecdote you would like to share?

A Greek almost tragedy that ended well! In an international mediation between a German and a Greek party, the latter and his lawyer made it difficult for the other party and the mediator. The lawyer, when asked in caucus what his client’s BATNA was, said he had no idea and saw it as his task to bring forward his client’s arguments as if in litigation, not to advise on a possible outcome of a court case. His client rejected what was on offer, said “no” and closed his folder. He said “no” a second time, putting his file in his briefcase and repeated his position a third time as he left the room. Finally, in an improvised caucus in the hallway the client made a counter-proposal with only minor changes, which was acceptable to the other party. Multicultural mediation. I love it.

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