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.

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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. 

* * *

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

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Tsisana Shamlikashvili

Tsisana Shamlikashvili

The CPR European Advisory Board (EAB) continues its series, “Meet CPR’s Distinguished Neutrals in Europe,” and today it presents its second Q&A, with Professor Tsisana Shamlikashvili, centering around the theme of “Mediation in the 21st Century.”

Tsisana is a Moscow based, international expert in ADR.  She focuses on mediation and was responsible for initiating and supporting the institutionalization of mediation in Russia, founding the Center for Mediation and Law in 2005.  Her mediation/neutral practice covers a wide range of cases from complicated cross-border commercial disputes to family conflicts, as well as intellectual property, workplace, financial, personal injury and medical malpractice disputes.  She is currently president of the National Organization of Mediators (NOM), academic chair of the Federal Institute of Mediation, founder of the Scientific and Methodological Center for Mediation and Law, Chair of the Subcommittee on ADR and Mediation in the Russian Association of Lawyers, founder, publisher and editor-in-chief of the magazine “Mediation and Law”, and head of the Mediation Master’s Program at MSUPE. [https://mediacia.com/en/founder/]

By Kathleen Fadden (consultant with AMGEN) and Vanessa Alarcon Duvanel (King & Spalding LLP) 

How did you get your start as a neutral?

It has been a lifelong journey towards mediation which perfectly synthesized my professional background and experience.  Understanding how imperfect traditional ways of addressing conflict are and how much harm we can avoid using mediation as a preventive approach made me start the journey.

Who is your dispute resolution hero/heroine?

I strongly believe that each person who finds enough courage to step into a dialogue with his/her opponent has to be supported and professionals who assist in these complex situations are heroes and heroines too.

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

To be consistent and persistent, to stay humble and maintain curiosity.  Always be ready for the unexpected.  Be surprised about what won’t happen!

Were you ever the first in doing something?

Yes, indeed.  Development of mediation and its institutionalization in Russia was initiated by me, as was ADR implementation generally.

What makes your conflict resolution style unique?

Each mediator is unique and each mediation is unique.  My preference is to facilitate parties in their efforts to resolve the conflict, to find an exit out of dispute which will provide the parties with a mutually acceptable future.  This means possessing the ability to use different models of mediation in each case or even a blend of the models to achieve the best result.  The main thing is to follow the key principles of mediation as a modern tool to address the conflict and to develop conditions so that the parties in the conflict are empowered.

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

There are difficulties and dilemmas in almost every case.  Ethical dilemmas are often the most complicated to resolve.  For example, how should a mediator behave when he/she holds information crucial for settlement of the case but one party does not want to share the information with counterparts and does not wish the mediator to do so either or even have any direct discussion about the topic?

What is the most important mistake you see counsel make?

The biggest mistake counsel can make is to fail to give the represented party a real voice, view or opinion at the hearing.

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

It would probably be the introduction of a two to three hour compulsory informative session regarding mediation and the requirement to include a mediation clause in most contracts.

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

We have to be very attentive to potential vulnerabilities caused by the use of technology and indeed follow all data protection rules in every context, domestic and crossborder.

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

I think one of the next “big things” is the wider use of mediation.  Citizens, societies, corporations and states developing a real culture of dialogue to prevent conflict when disputes occur.  We should deploy all possible efforts to make that happen.  Thinking about new trends in dispute resolution, ODR deserves a mention.  It is necessary in a global digital world. Today there is an increasing demand for ODR in the court environment.  Hopefully, in time, the private sector in B2B / B2C transactions will understand the benefits of such tools not only in e-commerce and not just in the cross-border context. In recent weeks we’ve already witnessed a growing demand for ODR and mediation using tech platforms. Mediation will be one among other preventive tools in times of crisis for disrupted businesses.

For which types of conflicts would you recommend ADR?

In most cases, ADR and specifically mediation, offers parties more advantages and opportunities to resolve disputes with the best possible outcome because control is in the hands of the parties.  ADR can be used in commercial cases, IP cases, construction/development, insolvency, medical malpractice, personal injury etc.  There are very seldom cases when mediation cannot be used and of course, sometimes, it can be combined with other ADR modes.  For instance, recently there has been growing interest in hybrid procedures such as MED-ARB/ARB-MED.

In your view, what makes CPR unique?

CPR is one of the oldest organizations, established to change the dispute culture and promote ADR in business/economic environments as well as in society as a whole.  CPR is trying to approach and involve all stakeholders even if they have conflict of interests.  The CPR pledge for corporations and law firms was one of the key factors which increased awareness of ADR and spawned a demand for use of ADR.  Last, but not least, CPR has gathered the most experienced ADR professionals/neutrals.

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

The contemporary world needs dialogue and inclusion at all levels of society now more than ever in human history. In times of crisis and total threat to fundamental human rights, interference with private life, radical shifts within social life and familiar modes of communication, mediation can empower individuals, make their voices heard in a constructive way by others, especially by decision-makers.

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

By Anne Muenchinger, Federica Romanelli & Michael Hotz

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

* * *

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

 

 

Update Regarding COVID-19 & CPR Mediation Services

The COVID-19 health crisis is causing unprecedented disruptions and damages to the World’s economy and business relationships. A great variety of commercial disputes are surfacing as parties find it impracticable or impossible to perform their contractual obligations. In all likelihood, this crisis will result in a surge of litigation and will also considerably slow down the resolution of pending court cases. In fact, many courts around the world have stopped holding jury trials which will create a considerable backlog for many pending cases. These unprecedented delays should encourage parties to consider alternative dispute resolution.

Last week, we shared with you the launch of a new Dispute Prevention panel, comprised of neutrals who have the experience to facilitate the resolution of a dispute before it becomes a legal conflict. At the same time, we also want to remind you that CPR Dispute Resolution and its Mediation Services are also available to assist businesses in these difficult times. As you know, mediation is a flexible, nonbinding dispute resolution process that uses a neutral third party- the mediator – to facilitate negotiation between the parties and help them find a mutually satisfactory solution to the dispute. The mediator has no authority to impose an outcome on the parties and controls only the process of the mediation itself, not its result. The process is typically faster and more cost-effective than binding dispute resolution processes, such as litigation or arbitration.

CPR’s Mediation Procedures have been drafted by dispute resolution experts and have been used to resolve hundreds of cases over the past three decades. They offer flexibility while providing ground rules for the conduct of the mediation. For example, they provide rules to select the mediator, exchange information between the parties or to preserve confidentiality. All our mediation procedures are available here.

CPR’s Panel of Distinguished Neutrals comprises those among the most respected and elite mediators in the US and around the world. It includes prominent attorneys, retired state and federal judges, academics, as well as highly-skilled business executives, legal experts and dispute resolution professionals who are particularly qualified to resolve all business disputes including those involving multi-national corporations or issues of public sensitivity. Focusing in more than 30 practice areas, CPR’s esteemed mediators have provided resolutions in thousands of cases, with billions of dollars at issue worldwide. Click here for more information about CPR’s Panel of Distinguished Neutrals.

FAQs

How do I commence a mediation with a counterparty with which I have a dispute?  You will need to execute the following mediation agreement with your counterparty:

“We hereby agree to submit to confidential mediation under the CPR Mediation Procedure the following controversy: [Describe briefly]”

What if it is an international dispute? You will need to execute the following mediation agreement with your counterparty:

“The parties hereby agree to submit to mediation under the CPR International Mediation Procedure the following controversy: [Describe briefly]”

What if it is an employment dispute? You will need to execute the model submission agreement in Appendix 1 of CPR Employment Mediation Procedure

What is the cost? 

  • You do not need to pay any filing or administrative fees to use CPR Mediation Procedures. However, if the parties cannot agree on a mediator – or if they would like to benefit from CPR’s expertise in identifying a qualified mediator for the dispute – you will need to pay US$ 1,500 fee (the fee is split among the parties). Click here for more information on how CPR’s experienced case management team assist the parties in selecting their mediator.
  • In addition, you will need to pay the mediator.  Most mediators charge an hourly rate.

What if my dispute is below US$ 500,000?  You may consider using CPR’s flat fee mediation program.  Under the program, the dispute will be mediated for a flat fee of $3,500, to be split among the parties ($2,500 when a CPR member is involved in the dispute).  This amount will entitle the parties to one day of mediation (up to 10 hours, including preparation). Thereafter, an hourly rate of $350 will apply.  Mediators are directly appointed by CPR, after the parties have agreed upon a date and venue.

How do I request CPR’s assistance for the selection of the mediator? To obtain the appointment of a mediator, send your request via email to CPRNeutrals@cpradr.org with the contact information for all parties, including email addresses.  You will also need to pay a $750 non-refundable deposit. Payments can only be accepted via credit cards or wire transfer. Please specify in your cover email how you would like to pay. Click here for more information.

How to I contact the case management team if I have additional questions? Contact Alveen Shirinyans at ashirinyans@cpradr.org or +1.646.753.8230 or Helena Tavares Erickson at herickson@cpradr.org or +1.646.753.8237

NY State Bar Assoc Issues New Ethics Opinion Confirming that Lawyer-Mediator Acting as Third-Party Neutral is Not in Lawyer-Client Relationship or Providing Legal Services

By Mark Kantor

Kantor Photo (8-2012)

The New York State Bar Association Committee on Professional Ethics issued on Friday its Ethics Opinion No. 1178 addressing the ethics obligations of a lawyer acting as a mediator (https://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=98793).  According to this new Opinion, a lawyer-mediator acting as a neutral is not acting in a lawyer-client relationship or providing legal services (“In so concluding, we expressly supersede N.Y. State 678 (1996) insofar as that opinion says that the provision of mediation services by lawyers constitutes the practice of law. ****  Only when a lawyer-mediator engages in services beyond providing neutral services, such as filing papers in court, does the lawyer-mediator cross the line into providing legal services.”).  Therefore, much of the New York Rules on Professional Conduct for New York-qualified attorneys are not applicable to mediation services that do not cross that line.

Thus, the N.Y. Rules of Professional Conduct (the “Rules”) that apply when a lawyer represents a client do not necessarily apply in the context of a lawyer providing mediation services, including Rule 1.5 concerning fees, Rule 1.6 concerning confidentiality, and Rule 1.7 concerning conflicts, although lawyer-mediators should be aware that certain rules will continue to apply even in the absence of an attorney-client relationship.  See Rule 5.7, Cmt. [4].

I quote the entirety of the Opinion at the end of this post.

New York State Rule 2.4, which expressly addresses lawyers as third-party neutrals (including as arbitrator and as mediator), remains of course directly applicable.  That Rule requires the lawyer/third-party neutral to inform unrepresented parties that the lawyer serving as the neutral is not representing them and, where appropriate, to explain to the party the difference between a third-party neutral and a lawyer representing a client.  Rule 2.4 provides that:

(a) A lawyer serves as a “third-party neutral” when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.  Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them.  When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.

Newly issued Opinion 1178 also offers advice on issues commonly faced by lawyer-mediators navigating the line between legal services and mediation services, including confidentiality, meeting with parties separately, entering into an alternative fee arrangement, and memorializing an agreement reached in the mediation.

  1. In addition, even though the confidentiality provisions of Rule 1.6 would not apply, a lawyer-mediator may be governed by other confidentiality obligations found in substantive laws (such as statutes or court rules) or private sources (such as ethics codes promulgated by mediation groups).  See Rule 2.4, Cmt. [2] (“the lawyer may be subject to court rules or other law that applies either to third-party neutrals generally or to lawyers serving as third-party neutrals.  Lawyer-neutrals may also be subject to various codes of ethics”); Rule 1.12, Cmt. [3] (lawyers who serve as third-party neutrals “typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals”); N.Y. State 1026 ¶ 7 (2014).
  2.  Accordingly, as long as the lawyer-mediator follows Rule 2.4 (and any other applicable rules or laws), the lawyer-mediator would be free to conduct the mediation in the way the lawyer-mediator thinks best, including meeting with the parties separately, and contracting for and structuring her fee however the lawyer-mediator would like.
  3.  We also note that the lawyer-mediator may assist the parties with memorializing in writing the terms to which they agree during the mediation.  Such an aide memoire or Memorandum of Understanding is a common product of the mediation process.

The context of Ethics Opinion 1178 is a lawyer who wishes to act as a mediator in divorce disputes.  However, the scope of the Opinion itself arguably extends to third-party neutral services more generally, and certainly to mediation outside the divorce context.  Since the description in Rule 2.4 of third-party neutrals expressly encompasses arbitrators as well as mediators and the rationale for Opinion 1178 includes the adoption of that Rule to distinguish third-party neutral services from the delivery of legal services, one may easily construe Opinion 1178 to apply to a lawyer’s service as a neutral arbitrator as well.  However, the direct conclusions of the Opinion speak only to mediation services.  I invite comments and corrections in that regard from others who may know more on this subject.

Hat tip to Jill Gross at that wonderful blog Indisputably for bringing this development to the attention of the ADR community yesterday (http://indisputably.org/2019/12/new-nys-ethics-opinion-lawyer-as-third-party-neutral/).

###

Ethics Opinion 1178

New York State Bar Association
Committee on Professional Ethics

Opinion 1178 (12/13/2019)
Modifies NY State 678 (1996)

Topic:  Lawyer as third-party neutral

Digest:  A lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients.  As such, the lawyer-mediator is generally free to conduct the mediation in the way the lawyer thinks best, and to charge whatever fee may be appropriate, provided always that the lawyer fully discloses to the parties that the lawyer is acting as a disinterested mediator and not as counsel to any party, including the consequences of that difference.  In the event of an agreement, the lawyer-mediator may memorialize the parties’ understanding in a document and may appear as counsel for one party (but not both) in filing a divorce action if the other party gives informed consent confirmed in writing.

Rules:  1.5, 1.6, 1.7, 1.12, 2.4, 5.7

FACTS

1. The inquiring lawyer intends to become a mediator and plans to focus on mediating cases involving parties who would otherwise seek a contested divorce.  The lawyer-mediator anticipates that the parties may find that meeting individually to discuss the issues that need to be resolved in order to submit their agreement to the court would be beneficial given the antagonistic position between them.

2. The lawyer-mediator intends to charge an upfront, flat rate for the mediation services. The goal of those services is for the parties to resolve all of the issues necessary for the parties to be in a position to submit an uncontested divorce package.  In the event that the parties discontinue using the lawyer as a mediator before all of the issues are resolved, the contract will provide that the parties will pay the lawyer-mediator an hourly rate for the services performed, charged against the upfront payment with any unused amount returned to the parties.

QUESTIONS

3. In connection with setting up a mediation practice, the inquiring lawyer poses several questions:

(a) May the lawyer-mediator meet with the parties individually to inform them of the various issues that need to be resolved in order to have a divorce granted in New York?
(b) May the lawyer-mediator enter into a contract with the parties to provide mediation services?  If so, may the contract provide for the payment of a flat rate by the parties in the event resolution is reached that results in an uncontested divorce packet but otherwise provides for the payment by the parties on an hourly basis if the parties discontinue the lawyer-mediator’s services before all issues can be resolved?
(c) What disclosures does the lawyer-mediator have to provide to parties to the mediation concerning her role as mediator?
(d) May the lawyer-mediator prepare documents, including a divorce action representing the parties, if the parties reach agreement?

OPINION

4. Generally, lawyer-mediators are not engaged in the representation of a client and are not providing legal services to the parties to the mediation.  See N.Y. State 999 ¶ 2 (2014); N.Y. State 1026 ¶ 6 (2014).  Thus, the N.Y. Rules of Professional Conduct (the “Rules”) that apply when a lawyer represents a client do not necessarily apply in the context of a lawyer providing mediation services, including Rule 1.5 concerning fees, Rule 1.6 concerning confidentiality, and Rule 1.7 concerning conflicts, although lawyer-mediators should be aware that certain rules will continue to apply even in the absence of an attorney-client relationship.  See Rule 5.7, Cmt. [4].

5. Instead, Rule 2.4 is directed to lawyers acting as third-party neutrals and provides:
(a) A lawyer serves as a “third-party neutral” when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.  Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them.  When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.

6. In terms of the required disclosure under Rule 2.4(b) stated above, we have noted that “[t]he precise content of the required conversation, and the exact information the lawyer-mediator will have to disclose to a party about the lawyer’s role, may vary from one mediation to another.”  See N.Y. State 878 (2011).  Comment [3] to Rule 2.4 provides some guidance:

Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative.  The potential for confusion is significant when the parties are unrepresented in the process.  Thus, paragraph (b) requires a lawyer-neutral to inform the unrepresented parties that the lawyer is not representing them.  For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient.  For others, particularly those who are using the process for the first time, more information will be required.  Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as a third-party neutral and as a client representative, including the in-applicability of the attorney-client evidentiary privilege.  The extent of the disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute resolution process selected.

7. “Thus, unless all mediating parties are represented by counsel in the mediated matter, a lawyer-mediator must explain whatever needs to be explained to assure there is no confusion about the lawyer-mediator’s role and the difference between a lawyer’s role on behalf of a client and a mediator’s role as a neutral.”  See N.Y. State 878 (2011).

8. There may also be times when it is not possible for the lawyer-mediator to provide an effective explanation regarding the difference between the role as a lawyer-mediator compared to a lawyer’s role when representing a client.  As we noted in N.Y. State 736 (2001), matrimonial mediation may be undertaken in many circumstances, but sometimes “the complex and conflicting interests involved in a particular matrimonial dispute, the difficult legal issues involved, the subtle legal ramifications of particular resolutions, and the inequality in bargaining power resulting from differences in personalities or sophistication of the parties make it virtually impossible to achieve a result free from later recriminations or bias or malpractice, unless both parties are represented by separate counsel.  In the latter circumstances, informing the parties that the lawyer ‘represents’ neither and obtaining their consent, even after a full explanation of the risks, may not be meaningful; the distinction between representing both parties and not representing either, in such circumstances, may be illusory.”

9. In addition, even though the confidentiality provisions of Rule 1.6 would not apply, a lawyer-mediator may be governed by other confidentiality obligations found in substantive laws (such as statutes or court rules) or private sources (such as ethics codes promulgated by mediation groups).  See Rule 2.4, Cmt. [2] (“the lawyer may be subject to court rules or other law that applies either to third-party neutrals generally or to lawyers serving as third-party neutrals.  Lawyer-neutrals may also be subject to various codes of ethics”); Rule 1.12, Cmt. [3] (lawyers who serve as third-party neutrals “typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals”); N.Y. State 1026 ¶ 7 (2014).

10. Accordingly, as long as the lawyer-mediator follows Rule 2.4 (and any other applicable rules or laws), the lawyer-mediator would be free to conduct the mediation in the way the lawyer-mediator thinks best, including meeting with the parties separately, and contracting for and structuring her fee however the lawyer-mediator would like.

11. We also note that the lawyer-mediator may assist the parties with memorializing in writing the terms to which they agree during the mediation.  Such an aide memoire or Memorandum of Understanding is a common product of the mediation process.

12. Beyond this, however, that lawyer-mediator may not cross the line between acting as a neutral arbiter and acting as counsel to the parties.  N.Y. State 1026 ¶ 10 (the lawyer performs legal services when the lawyer drafts and files divorce papers in court on behalf of the parties).  In that event, all of the mediation services would then be covered by the Rules as the non-legal mediation services would not be distinct from the legal services.  See Rule 5.7.  Nevertheless, Rule 1.12(b) expressly permits the lawyer-mediator, at the conclusion of the mediation, in the event of an agreement between the parties, to represent one of the parties in filing a divorce action in court, provided the other party gives informed consent, confirmed in writing.  At that point, the erstwhile mediator owes all the duties accompanying the attorney-client relationship under the Rules to the represented party.  Rule 1.7(b)(3) forbids a lawyer from representing adverse parties in a proceeding, even with informed consent, and so the lawyer-mediator may not represent both parties in the filing of a divorce action.

13. In so concluding, we expressly supersede N.Y. State 678 (1996) insofar as that opinion says that the provision of mediation services by lawyers constitutes the practice of law.  That opinion was issued before adoption of Rule 2.4, which specifically governs a lawyer’s provision of neutral services and which had no equivalent in the predecessor N.Y. Code of Professional Responsibility.  We have earlier so hinted:  Following adoption of the Rules, we noted the possibility that our conclusion under the Rules might change on this issue. In N.Y. State 979 (2013), we said that there were conflicting opinions concerning whether the provision of mediation services was the practice of law and that “[t]he case that such services are not the practice of law was arguably bolstered by New York’s adoption of the Rule specifically governing a lawyer’s service as a mediator.”  We now make explicit that Rule 2.4 ousts our conclusion in N.Y. State 678 that the provision of mediation services invariably constitutes the practice of law.  Only when a lawyer-mediator engages in services beyond providing neutral services, such as filing papers in court, does the lawyer-mediator cross the line into providing legal services.

CONCLUSION

14. A lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients.  As such, the lawyer-mediator is generally free to conduct the mediation in the way the lawyer-mediator thinks best and to charge whatever fee the lawyer-mediator thinks appropriate and must provide disclosure to the parties concerning the lawyer-mediator’s role as a mediator compared to that of a lawyer representing a client.  If, however, the lawyer-mediator engages in an activity that constitutes a legal service, that legal service would not be distinct from the non-legal mediation services and the Rules would then apply to both the legal and non-legal services provided by the lawyer-mediator.  At the conclusion of the mediation, the lawyer may represent one (but not both) of the parties in filing a divorce action, provided the other party gives informed consent, confirmed in writing.

(08-19)

You May Be Interested In…

New York State Bar Association Committee on Professional Ethics Opinion 1178 (12/13/2019) Modifies NY State 678 (1996) Topic: Lawyer as third-party neutral Digest: A lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients. As s

Lawyer?mediator may not draft and file separation agreement and divorce papers on behalf of spouses as joint clients unless the lawyer can satisfy the “disinterested lawyer” test of DR5?105(C)

New York State Bar Association Committee on Professional Ethics   Opinion 999 (3 28 14)   Topic    Marital Mediation and referrals.

Lawyer may not ethically enter into arrangement with a non-lawyer to accept referrals for a fixed monthly fee for each case referred where case has been obtained by telephonic solicitation.

A lawyer may not participate in a divorce mediation referral service that is not operated, sponsored or approved by a bar association

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

This material was first published on OGEMID, the Oil Gas Energy Mining Infrastructure and Investment Disputes discussion group sponsored by the on-line journal Transnational Dispute Management (TDM, at https://www.transnational-dispute-management.com/), and is republished with consent.

Understanding the Mediation Process to Assist Mediators, Self-Represented Litigants and Attorneys

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By:  Judge Steven I. Platt (Ret.)

The following guest post is a transcript of a speech that the author presented to the meeting of The Legal Research Institute of the Law Library Association of Maryland (LLAM), on October 11, 2019 at the University of Maryland School of Law. It is reprinted here with permission.

INTRODUCTION:

Good afternoon.

I appreciate this opportunity to discuss the role of the legal researcher in the 21st Century profession of dispute resolution from the perspective of what I now call myself, “a Recovering Judge.” I spent a total of 29 years from 1978 to 2007 on three different Trial Courts. I was also assigned to Maryland’s intermediate appellate court on multiple occasions. For the last 17 years, I have engaged in the world of private dispute resolution as an arbitrator, mediator, neutral case evaluator, Special Magistrate and Consultant on dispute resolution system design and implementation.

What I see is vastly different from what I saw from the Bench in the last quarter of the 20th Century, 1978-1999 and the first decade of the 21st Century, 2000-2007. Like every other institution of government, The Judiciary, as well as the private dispute resolution sector is rapidly changing. “Evolving” connotes too slow a process to be an accurate description of what is going on. Technology and globalization are rapidly transforming the forums and techniques of dispute resolution and with them the paradigms of the administration of civil justice.

These modifications of existing governmental institutions, corporate organizations as well as new financial products and devices, result from rapid technological development and globalization. These trends will, notwithstanding some of the subliminal messages from our recent elections, not be reversed. So, therefore, the work and role of the legal researcher must necessarily expand and diversify to accommodate these changes and trends.

I recognize, that it is ironic that almost contemporaneous with these changes and my remarks, we just recently witnessed a not-significant portion of the electorate in the country, and if you want to count “Brexit”, indeed the world, revolting at the voting booths against “elites.” Legal researchers are, at times, in the business of identifying and defining what and who are “elite.”

CHANGES IN THE METHODS OF DISPUTE RESOLUTION:

Traditionally, our citizens have had their disputes (legal and factual) resolved by a judge or jury in a courtroom. There, the role of the legal researcher has historically focused on assisting the trier of fact, and the arbiter or authority on the law, be it a judge or jury, to locate and understand the evidence and the law which applies to it. Traditionally, those legal researchers except for law clerks, staff attorneys, and law librarians have not worked for the court and are not paid by the court. Rather, they work for and are paid by the parties and/or counsel. Therefore, in many instances, their research and the advocacy based thereon are, at least initially, viewed by both judges and juries as suspect. I am sure that almost everyone in this room has encountered that barrier if not overt cynicism to your research and arguments based thereon being received and found persuasive.

That is changing. For one thing, the appointment by the Court of its own experts and reliance on its own research frankly as a reaction to the diffusion of the “mainstream” media and social media particularly in cases involving valuation issues is on the rise. Most state courts have the authority to do that and more and more are open to exercising it. Judges and Court Administrators who do not always know or understand “who you are, what you do, how you do it.” I encourage you to reintroduce yourselves to judges and court administrators who you may think you need further introduction. In doing so, however, you must educate them. As a caution, do not assume a basic knowledge except among a very few experienced judges of the terminology produced by your research including valuation techniques, particularly of intellectual property, businesses (distressed and other) as well as intangibles and other forensic accounting issues.

Courts are also increasingly relying on their own appointed Financial Forensic Experts as Receivers and Special Magistrates. In doing so, they expect their experts to be able to access complex legal research as well as multi-disciplinary research. Most state courts and all federal courts give their Judges the authority and discretion to appoint whomever they want including non-lawyers. The standard is “abuse of discretion.” Appointing someone with knowledge of the issues and industry before the courts and who can make informed and educated recommendations or even run a company for the Court, having the experience to do so, is clearly not an “abuse of discretion.”  The judges will increasingly depend on you and your research to identify who those individuals are and their methodologies.

Finally, The Courts are increasingly utilizing Special Magistrates and Settlement Administrators a/k/a “Claims Adjudicators” to administer and manage settlements of high stakes, multi-party litigation particularly Class Action cases and Mass Tort cases. Court Appointed Special Magistrates and Settlement Administrators are most of the time authorized by Rule and/or Court Order to employ “such professionals, experts and consultants as they deem necessary” to carry out their court ordered duties, which likely will include recommending the allocation of damages, expert fees, and attorney’s fees to The Court. That is you! Those Settlement Administrators, Special Magistrate, and Receivers are a market which, if currently unexplored, should be on your marketing screen shortly. They need your cutting edge multi-disciplinary research.

The best-known example of this relatively recent phenomenon and “The Man” is of course, Ken Feinberg of 9-11 Fund, BP Gulf Oil Spill, and Virginia Tech fame, to name a few. In each of these cases, and others, the roles of Financial Forensic Experts and the legal and multi-disciplinary researchers they employ, has been to perform among other functions:

  1. Research and Develop formulas and algorithms to determine the allocation of economic damages based on severity indexes established by the terms of the settlement agreement and data collected to support it.
  2. Explain to the Special Magistrate, The Administrator, and/or The Court, those formulas and the allocation of damage awards based thereon.
  3. Explain to the recipients of the different categories and amounts of damage the basis for the differentiations in the size of their distribution or award.
  4. Supervise the transfer and application of data from investigations, interviews and records to the administrators formulating and implementing the settlement.

I, myself, have been involved in this process more than once as a Special Magistrate and Settlement Administrator, and I can tell you that the research needs of these Financial Forensic Experts who are qualified to, and willing to perform these functions are growing, but the number of potential legal researchers who understand those needs, and can meet them and are qualified to do so by education and experience is not large or at least not known.

THE USE OF EXPERTS IN ADR:

Furthermore, the non-traditional use of Experts, particularly Financial Forensic Experts in what is known as Alternative Dispute Resolution (ADR) is growing. As I have said, these new roles derive from the traditional role of assisting a judge or jury but are expanded to include or substitute persuading other players in the dispute. For example, in Mediation, the legal researcher can be most effective by assisting the opposing party, opposing counsel, or even the opposing expert in understanding the issues from the opposing parties’ perspective or how a court would understand it. There’s an old saying in the litigation world – “Don’t play in the other guys analytical ballpark.” However, in a Mediation, you DO play in the other guy’s analytical ballpark. That’s how you persuade him/her. If successful, it is likely that your research will result in the desired resolution of the dispute.

In an Arbitration, explaining to a single arbitrator or a three-arbitrator panel the methodology which is appropriate to value market share in order to determine as in asbestos cases the percent of allocation of damages, between defendants or in the newly emerging cannabis industry, with which I am familiar, the percentage of revenue or profits to which a consultant is entitled are examples. Here the success of the expert’s client will very much depend on the legal researcher’s ability to persuade the Arbitrator that the methodology utilized is appropriate and individualized to the valuation of the real, personal, or even intellectual property at issue in the case and not just a one size fits all over formula developed by the industry particularly the insurance industry.

Finally, it is useful to understand that in the new “Administration of Justice” paradigm, the data, opinions and related experience and information that will be sought from you will, to a certain extent, depend on the dispute resolution forum and technique being utilized by the parties and Counsel. In litigation and arbitration, your opinion as to how to determine the specific quantification of damages will be sought utilizing the theory of the case, and the valuation theory selected by the hiring authority. In a Mediation or Neutral Case Evaluation, your opinion is most likely to be sought to aid in a risk analysis designed to leverage the possible settlement of the case.

I hope I have been helpful and have adequately described the comparatively new world that you, as legal researchers have been or will shortly be operating in. As we look to the future of the field of dispute resolution and the administration of justice and specifically to your role as experts in that system, perhaps the best guidance that I can provide in conclusion is the advice of Abraham Lincoln which we would all do well to heed today, “The dogmas of the quiet past are inadequate for the stormy present and future. As our circumstances are new, we must think anew and get anew.”

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Judge Steven I. Platt (Ret.) is the Founder and Managing Member of The Platt Group, Inc., a professional Alternative Dispute Resolution Firm. He is also a member of The Maryland Board of Directors of The National Academy of Distinguished Neutrals (NADN), which, after a thorough peer review by the Board of Directors of that “invitation only” organization, selects only the top 10% of Neutrals in the country. He is also on the Judicial, Commercial, Employment, Large Complex Case, and Construction Panels of the American Arbitration Association (AAA), the International Institute for Conflict Prevention and Resolution (CPR), The International Mediation Institute (IMI). The Association for resolving business disputes to judges and lawyers both in Maryland and nationally through both The Judicial Education Program of the American Enterprise Institute (AEI) Brookings Joint Center for Regulatory Studies (served on Judicial Advisory Board), and through The American College of Business Court Judges (Past President).

Judge Platt may be reached at info@theplattgroup.com or at 410-280-0908.

His writings and other background information can be found on his website, www.theplattgroup.com and his Blog at  www.apursuitofjustice.com.

Any opinions expressed in this post are solely those of the author and do not necessarily constitute the opinions of The CPR Institute.

 

 

Committee Q&A: A Conversation with Mediation Committee Co-Chair, Marjorie Berman 

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As part of our continuing “Committee Q&A” series, we sat down recently with Mediation Committee Co-Chair, Marjorie Berman of Krantz & Berman (pictured), to learn more about what this committee has been up to and has planned for the future.

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The Mediation Committee consists of CPR members throughout the world and aims to enhance the quality and effectiveness of corporate mediation practice, both domestically and internationally.  The Mediation Committee recently released Mediation Best Practices Guide for In-House Counsel: Make Mediation Work for You, a CPR members-only guide with insider tips from in-house counsel on how to navigate every step of the mediation process (digital copies available to CPR members at no cost).  The Mediation Committee meets quarterly to collaborate and share best practices and put on programs of interest.   In addition, the Committee works to identify qualified neutrals to serve on CPR’s Panels of Distinguished Neutrals. You may find online, CPR’s Mediation ProcedureFast Track Rules for Mediation, and International Mediation Procedure (2017), as well as other industry-specific protocols.

Q. What are some of the specific issues that the Mediation Committee has focused on recently, and how?

A. I am a relatively new add to the committee but, looking back at just the past two meetings we’ve held, the first was on the Singapore Convention. We worked to fashion a program that would be meaningful – and useful – to people at all levels, including some who may not be as familiar with international law.  And at our most recent meeting, we focused on the very timely topic of confidentiality in mediation.

There has been a recent vintage of challenges to the confidentiality of mediation in the courts. Eugene Farber and Professor Nancy Rogers of the Ohio State University Moritz College of Law spoke, and the meeting was super lively and chock full of information. The event also inspired a very strong dialogue among the participants with respect to both knowledge and practice tips on anticipating that such issues could arise.

Q. Can you give us a preview of some of the important issues the Mediation Committee will be focusing on in the coming year?  

A. One long-term focus of the committee is an even closer look at this issue of confidentiality in mediation. Because candor between a mediator and parties is essential, mediation depends upon the privileges and confidentiality that protect those communications. The law protecting mediation communications is a patchwork of federal and individual case statutes, case law and rules of conduct that vary across jurisdictions.

This project will inform practitioners of the law and rules governing mediation confidentiality by jurisdiction so they can prepare themselves in the event they need to mediate in an unfamiliar locale. In fact, as people are reading this, and they have personal experiences with challenges to confidentiality and being put in the spotlight in a litigation – not where mediators wish to be! – I encourage them to share those stories with the committee.  

Q. What have you personally gotten out of participating in CPR’s committee structure, and what would you say to busy CPR members about why they should become more involved?

A. Even in the short term in which I’ve been intensely involved, participation in the committee has given me exposure to a wide variety of mediators working in many different contexts, and to a breadth of mediation practices. We can all so easily develop a narrow focus in our work, so it is especially valuable to get perspective from all angles – including from inside and outside litigators using mediation, mediators doing mediation, mediators working both in the US and around the world and academics studying mediation.

Q. Why would you encourage people to join CPR’s Mediation Committee in particular?

A. To some degree mediators tend to be in a bit of a closed world. They mediate cases and its often just them, in a room as a mediator. Being a part of such a dynamic and interactive group expands your view and allows you to process and grow both your perspective and your practice. This is valuable whether you’re a mediator trying to develop your own practice, or a litigator from a corporation or a law firm who is involved as a participant, trying to get a perspective of where mediators are coming from – because you can’t have that kind of conversation with your own mediator.

Committee participation also provides the broader opportunity to act as a thought leader, helping to improve the effectiveness of mediation and to shape best practices. Mediation is a very dynamic area where small changes can produce big results in terms of outcomes, and this committee offers an opportunity to become a meaningful part of that.

Marjorie Berman of Krantz & Berman LLP represents civil litigants in business disputes, employers and employees in employment conflicts, and individuals in white-collar criminal matters.

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CPR committees are always looking to increase membership and participation, and there are no extra fees or costs associated with joining. Learn more about CPR’s other industry and subject matter committees here. To become a committee member, log in and join the committee(s) of your choice or email a note of interest to Richard Murphy at rmurphy@cpradr.org.

Take your seat at the table, along with
other thought leaders in your industry.

JOIN A CPR COMMITTEE TODAY