CPR’s new website now hosts the CPR Speaks blog. You can find new posts, at https://www.cpradr.org/news/cpr-speaks.
Practice Tips
Mediating Commercial Disputes: Understanding the Process to Maximize the Benefits
By Mia Levi
Mediation is a process in which a neutral third party—a mediator—meets with the disputing parties and actively assists them in reaching a settlement. Mediation is private and confidential, flexible, and more informal than other processes such as arbitration or litigation. It is concluded expeditiously, allowing parties to settle the dispute or narrow their issues at moderate cost. The overwhelming majority of disputes in mediation (70% to 80% of commercial disputes) settle, and because the outcomes are mutually agreed upon, they have high rates of compliance.
Mediation is able to preserve relationships because the emphasis is on the interests of the parties—process flexibility allows the people involved to find the best path to agreement. Parties may adapt the procedure to their own needs and can explore a wide range of remedies that might not have been available to them in court. It’s also more predictable than a trial decided by a judge or jury, avoids a “win or lose” outcome, and allows for an amicable resolution that may preserve the parties’ relationship. The goal is to resolve problems in a principled fashion (or reach an impasse) and move on.
But often, parties may be hesitant to agree to mediation. This can be remedied by understanding which kinds of disputes are suitable for mediation, when to schedule the mediation so that it is most successful, and, finally, how the mediation process itself works.
Is the Dispute Right for Mediation?
It is possible that the dispute at hand is not suitable for mediation. The ADR Suitability Guide, published by the International Institute for Conflict Prevention & Resolution (CPR), outlines three factors parties should consider in deciding the suitability of a case for mediation: (1) the parties’ goals for managing the dispute, (2) the suitability of the dispute for a mediation process, and (3) the potential benefits of mediation in relation to the specific dispute being considered.
First, looking at the parties’ goals, if there is a desire to maintain a working relationship, maintain control over the outcome, limit costs and disruption, and maintain privacy, then mediation may be a preferable tool. Second, for the dispute to be suitable for mediation, there should be no deep desire for vindication or revenge by the parties, no need to attain legal precedent, and no extreme power imbalance. Third, the potential benefits of mediation include allowing the parties to explore mutual needs and interests confidentially, providing an opportunity to be heard, providing a “reality check” for internal decision makers, helping to clarify the issues, and providing the opportunity to have an intermediary help frame proposals and present offers and counteroffers. Parties should weigh all these factors in making the decision to mediate.
Among dispute resolution processes, mediation offers a maximum degree of confidentiality and privacy. Contractual and legal protections provide additional assurances against the use or disclosure of mediation statements or documents. These confidentiality protections contrast sharply with the public nature of the litigation process and its procedures that encourage public disclosure. If parties are looking to attain a ruling that will contribute to legal precedent or require articulation of public policy, mediation likely is not the proper forum.
When Should Parties Mediate?
There is no one right time to conduct a mediation. Including a mediation step (prior to arbitration or litigation) in the proceedings is an easy way to ensure that the parties discuss settlement options. When mediated, many cases are settled or partially settled at the initial stages of the case. Settling even part of the dispute up front can make the arbitration hearings or litigation shorter and less expensive. The opportunities to reduce the costs and wear and tear of court proceedings are greatest before litigation has commenced, but mediation may be a sensible option at any point in the litigation process, even while an appeal from a trial court judgment is pending. Parties not ready for mediation at the outset of the case may be more receptive as it runs its course.
Indeed, the timing of mediation may be rendered somewhat inflexible when parties contract for a sequential, multistep dispute resolution. While tiered dispute resolution clauses may get parties to the mediation table, these provisions may not assist parties in achieving this goal at an ideal time in the life of their dispute. Some parties may find it more beneficial to mediate their dispute after some discovery has been exchanged. Parties should continuously keep an open mind as opportunities for settlement arise throughout the proceedings. It is not uncommon for cases to settle during or even after the hearings. Sometimes, an additional mediation session after some discovery is effective in reaching a settlement.
For those parties contemplating mediation in conjunction with arbitration, the Concurrent Mediation-Arbitration Clauses and Protocol, which CPR introduced in July 2020, allows the parties to agree they will attempt to settle any dispute that is the subject of arbitration by confidential mediation conducted during the pendency of the arbitration. This process was developed to encourage the availability of mediation to parties in a more flexible manner than is provided under standard multistep dispute resolution provisions. This, in turn, creates an opportunity for parties to continue to explore settlement options based on what they learn during the arbitration proceedings and without delaying those proceedings.
What Should the Parties Expect from Mediation?
Parties who have not written mediation into their contract or dispute resolution clause may need to execute a submission agreement—essentially an agreement to submit the dispute to mediation with an alternative dispute resolution (ADR) provider—or they may agree to mediate in an ad hoc process. Notably, an ADR provider will be able to assist the parties in selecting the appropriate mediator for their dispute.
Many ADR institutions provide opportunities for parties to further streamline the mediator-appointment process. For example, streamlined mediator appointment is suitable for disputes where the parties wish the ADR provider to choose a mediator for them. Parties submit information about their dispute and the candidate sought, and the ADR provider will make the selection based on the information provided by the parties and vet the candidate for conflicts purposes before the appointment. This streamlined process lowers administrative costs and allows the parties greater speed in getting a mediator appointed and the process underway.
The process itself will depend on the mediator selected. Mediators will have different styles of mediation. On one side of the spectrum, facilitative mediators will work with parties to find creative solutions that meet the interests and needs of the parties. This will be beneficial for cases where parties wish to continue a personal or business relationship. On the other side, evaluative mediators will offer an opinion regarding the relative strength of each side’s legal arguments and generally will predict the likely outcome if the parties were to bring the case to trial. Mediators may also offer a hybrid style, combining the two.
Conclusion
Understanding the mediation process will help parties gain more advantages from the mediation itself. It is important for parties to realize that while settlement of their dispute might be the most desired outcome, an impasse does not mean that the parties have failed. If parties narrow the issues, understand the opposing side’s point of view, or simply have an opportunity to be heard, it will be successful for the parties in the long run.
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Mia Levi (mlevi@cpradr.org) is the Vice President of Global Development for Dispute Resolution Services of the International Institute for Conflict Prevention and Resolution (CPR).
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This post is © 2022. Published in GPSolo eReport, Volume 11, Number 9, April 2022, by the American Bar Association. (Available here.) Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
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Highlights from Cardozo’s Melnick Symposium on ‘The Death and Resurrection of Dialogue’
By Ellen Waldman
Each year, the Cardozo Journal of Conflict Resolution, from the Benjamin N. Cardozo School of Law at New York’s Yeshiva University, enlightens the local mediation community with its annual Jed D. Melnick Symposium.
This year’s symposium was titled, “The Death and Resurrection of Dialogue,” covering the media, politics, communities, racial divides, and in mediation itself. (The symposium agenda, from March 11, is at the link.)
The timely topics ranged from the impact of various media on political discourse, Ohio State’s Divided Community Project and efforts to stimulate productive community dialogue, the ascendance of remote practice, the disappearance of the joint session in mediation, and finally, mediation’s role in addressing the inequities of structural racism.
This blog post focuses on this last, most-challenging topic, and the panelists’ efforts to address what may be mediation’s unwitting contribution to continued racial imbalance and oppression.
The panel was introduced by Bobby Codjoe, Cardozo’s Director of the Office of Diversity and Inclusion and moderated by Prof. Maurice Robinson, an adjunct faculty member in Cardozo’s Kukin Program for Dispute Resolution. The speakers included Prof. Ellen E. Deason, emeritus at Ohio State University’s Moritz College of Law in Columbus, Ohio, Prof. Isabelle R. Gunning at Southwestern Law School in Los Angeles, and Prof. Sharon B. Press, Director of the Dispute Resolution Institute at Mitchell Hamline School of Law in Saint Paul, Minn.
A central question the panel posed was whether a mediator charged with maintaining impartiality and neutrality can be an anti-racist. To understand this question, it is necessary to analyze the distinction between being a non-racist and being an anti-racist, a distinction that Prof. Robinson helped the audience understand.
Being a non-racist means refraining from personally inflicting harm or behaving in negatively biased way toward BIPOC (Black, Indigenous, People of Color) individuals or groups. But non-racism entails a passive response to BIPOC’s generational pain and trauma, and the structures of oppression that maintain and reinforce them.
By contrast, being an anti-racist means taking any effort or action designed in direct opposition to racism, bias, oppression, marginalization and brutalization of any group of POC. It requires acknowledging that racism is a real and present day system. It interrogates the racialized frameworks people have grown up with which asserts the superiority of White people and the inferiority of BIPOC, and maintains caste-based hierarchies through a web of legal rules, policies and cultural practices.
To be an anti-racist, according to the program panel, is to recognize that the heart of racism is the denial of this system. To be an anti-racist is to work to recognize, identify, and take affirmative actions toward changing this system.
Prof. Gunning, when considering how mediator neutrality meshes with the imperative of an anti-racist to affirmatively “call out” racist structures and systems began by asserting that neutrality was an inherently problematic concept. Mediator obeisance to the supposed dictates of neutrality encourages White mediators to stay silent in the face of injustice and risks thwarting the self-determination of BIPOC in the process. Gunning suggested that neutrality, for many mediators, serves as a proxy for trust and offered that mediators talk instead about the values they seek to enact in the process: equality, dignity and respect.
Prof. Deason began her remarks by delineating two specific instances where a White mediator is most at risk of complicity with structural racism. The first is when the mediator remains blind to racial stereotypes and unaware of the mediator’s own unconscious bias.
The White mediator, in saying, “I don’t see color,” may, in fact, be simply affirming her or his own White reality as the status quo, thereby denying the reality or experience of the BIPOC parties in the mediation room. A mediator’s determination to adhere to a neutral stance may affect how the mediator chooses to respond to the dynamic between the parties.
Deason revealed some skepticism that mediators can ever be truly neutral and noted that research reveals that mediators engage in selective facilitation, elevating the stories they find most compelling and silencing those stories that are less resonant to them. Both Profs. Deason and Press speculated that for White mediators, that story often will be the White story, whether consciously or not.
Prof. Press noted that as mediation becomes ever more institutionalized within a court system that prioritizes efficiency and settlement over root-cause problem-solving, the challenges increase. When the goal is to relieve dockets, not surface underlying needs and redress wrongs, the risks that mediation will simply buttress existing racial inequities is significant.
Press and Deason noted that the standard mediator exhortation that parties treat each other with respect and avoid interruptions smacks of “tone policing,” just as the insistence that parties look forward, not back, can rob traditionally disenfranchised groups of the moral context and righteous indignation that undergirds their claims.
The panelists agreed that mediation needed to reconnect with its original emphasis on voice, both in the community and court settings. Additionally, they noted that the work of examining embedded whiteness and promoting racial healing is not the task of mediators alone; rather, dispute system designers and stakeholders in related fields, such as conciliators and group facilitators, must also take up the cudgel of self-reflection and modification.
In fact, restorative justice practitioners have started that work. See, e.g., Edward C. Valandra & Waŋbli Wapȟáha Hokšíla, Eds., Colorizing Restorative Justice: Voicing Our Realities (Living Justice Press 2020) (in which 18 authors who are restorative justice practitioners and scholars explore the racism and colonization within the field of restorative justice/restorative practices), and Fania E. Davis, The Little Book of Race and Restorative Justice: Black Lives, Healing, and US Social Transformation (Justice and Peacebuilding) (Good Books (2019).
It is true: the hour was filled with more questions than answers. But the very fact of the conversation reveals that the work has, indeed, begun.
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The author is Vice President, Advocacy & Educational Outreach at CPR. Her bio on CPR’s website can be found here.
#CPRAM22 Highlights: Why Do I.T. Outsourcing Projects Fail? How to Keep Them Going with Dispute Resolution Boards and Standing Neutrals
By Katerina Karamousalidou
A second-day CPR 2022 Annual Meeting panel last week analyzed why information technology outsourcing projects fail, and highlighted ways to keep them going with dispute resolution boards and standing neutrals.
The panel included moderator Zachary Hill, a partner in Morgan Lewis’s San Francisco office; Cherrie Fisher, a civil engineer and ADR neutral and consultant in the Dallas-Fort Worth area; David Frydlinger, managing partner at the Stockholm, Sweden law firm of Cirio Advokatbyra AB, and Kate Vitasek, an adjunct faculty member at the Halsam College of Business, University of Tennessee in Knoxville, Tenn.
After the panelists’ introduction, the March 3 discussion started with addressing common IT outsourcing projects, how they sometimes fail, the consequences of such failure, and then evolving to the use of a standard neutral from an academic and practical perspective to help resolve problems.
Zachary Hill, who represents clients in the technology, energy, and pharmaceutical industries, with a focus on contract disputes involving business software, addressed the issue of IT outsourcing in the software implementation context. More specifically, he explained how even large organizations lack the necessary in-house expertise to handle that type of implementation and, therefore, hire hundreds of consultants and programmers to ensure that the software components function properly.
But given the complexity of such software, projects can often fail at multiple points. Considering the potential risks of software implementation and the failures and high litigation costs associated with such disputes, using a standing neutral is usually useful.
The standing neutral is “a trusted neutral expert selected by the parties at the beginning of their contracting relationship to be readily available throughout the life of the relationship to assist in the prompt resolution of any disputes.” James P. Groton, “The Standing Neutral: A ‘Real Time’ Resolution Procedure that also Can Prevent Disputes,” 27 Alternatives 177 ( December 2009) (available at https://bit.ly/3hSWoy4). See also, Kate Vitasek, James P. Groton, and Dan Bumblausakas, “Unpacking the Standing Neutral: A Cost Effective and Common-Sense Approach for Preventing Conflict,” (University of Tennessee Haslam College of Business Fall 2019) (available at https://bit.ly/3pSD1d4).
The standing neutral originated in construction projects.
Panelist Kate Vitasek, who works on global supply chain issues, focused on the importance of preventing conflict, rather than resolving it. For this reason, pre-selecting and appointing a standing neutral as part of the governance team, who will assist the parties in resolving misunderstandings before they escalate, communicate effectively, and engage in constructive dialogue is extremely useful.
The construction industry began to use dispute review boards to prevent conflict; adding standing neutrals can be effective in every type of industry. The parties can decide upon the expertise they need from their standing neutral–from being a lawyer, or a mediator, to being an industry expert, or an engineer.
Panelist Cherrie Fisher, who acts as a standing neutral herself, emphasized the importance of dispute avoidance from the beginning of a construction project, because most problems arise early, such as a scheduling delay, or a differing site condition.
Then, she focused on analyzing the importance of both construction partnering facilitation and dispute resolution boards working simultaneously to assist parties in dispute prevention.
Panelist David Frydlinger, an attorney focusing on complex customer and supplier contracts, explained that standing neutrals are continuously involved during the project in advising parties and providing them with their neutral perspective.
Videos from #CPRAM22 will be posted; watch www.cpradr.org for updates.
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The author, an LLM student focusing on international commercial arbitration at Pepperdine University School of Law’s Straus Institute for Dispute Resolution in Malibu, Calif., is a Spring 2022 CPR Intern.
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Getting Online Justice, from AALS’s Annual Meeting
By Ellen Waldman
At the January American Association of Law Schools annual meeting, the organization’s Section on Alternative Dispute Resolution teamed with the Section on Commercial Law and Consumer Law, and the Section on Creditors’ and Debtors’ Rights, to host a panel discussion titled “Online Dispute Resolution in the Post-Pandemic Era.”
The virtual panel featured speakers Alicia Bannon from the Brennan Center for Justice at NYU Law School in New York City; Prof. Jean Sternlight from the University of Nevada, Las Vegas William S. Boyd School of Law, and U.S. Bankruptcy Judge Christopher Lopez, of Texas’s Southern District in Houston. The moderators were Prof. Christopher Bradley of the University of Kentucky’s J. David Rosenberg College of Law, in Lexington, Ky., and Prof. Amy Schmitz from Ohio State University’s Moritz College of Law, in Columbus, Ohio.
Noting that the pandemic pushed many forms of dispute resolution, including trials, into a virtual format, the panel focused its attention on both the promise and peril of widespread adoption of online dispute resolution.
On the promise side of the ledger, panelists agreed that the shift to virtual platforms had the potential to increase the ease with which disputants could access dispute resolution proceedings, cutting down on cost, time and inconvenience.
Judge Lopez, who presides over roughly 3,000 individual and corporate bankruptcies and, as of the conference, had conducted about 20 online mediations since proceedings went virtual in early 2020, was particularly enthusiastic about his court’s use of online evidentiary hearings and mediations. He observed that that stressed debtors juggling multiple jobs and parenting commitments need not take time off from work in order to “go to court.”
Allowing litigants the option to tune-in from their computers and cell phones conserved scarce time and money, helping debtors, in Lopez’s view, “keep their cars” and “stay in their houses.”
But panelists agreed that the rush to pivot online was not without its perils. Alicia Bannon, co-author of a report on best-practice principles for remote court proceedings, noted that the balance courts were being asked to strike was delicate: how best to adhere to public health guidelines while continuing to serve constituent communities, and to expand efficiencies while preserving fairness.
Courts, she suggested, should not be going it alone, but should engage with a diverse array of stakeholders, including, as noted in the report, “community advocates, public defenders and prosecutors, civil legal service providers, tenant representatives, survivors of domestic violence, public health experts, disability rights advocates, court employees, and more.”
The panelists emphasized the traditional courthouse as a place where litigants access legal information and guidance, and suggested that alternative forms of support needed to be built into remote proceedings. Pro se litigants were a particular source of concern as, in addition to being unfamiliar with the justice system, they may have limited computer literacy and may struggle with accessing and engaging with the required technology.
Recognizing and attending to the digital divide was a consistent theme. For those litigants with counsel and a sophisticated mastery of video-camera technique, online proceedings present obvious benefits. But, for those without counsel and no easy access to or understanding of computer-assisted communication, the dangers presented are equally obvious. Static reception, dropped calls, an inconsistent or shaky camera, distracting background visuals and ambient noise all influence a disputant’s ability to communicate, absorb information, and engage with other dispute resolution participants.
And, if one aim of dispute resolution procedures is to foster a disputant’s sense of procedural justice–the experience of having a voice and being heard–technology failures can render that goal impossible.
Prof. Sternlight in particular emphasized the importance of adopting a context-sensitive approach. Drawing on her research into the psychological impacts of varied forms of technology with co-author Jennifer Robbennolt, Sternlight suggested that different communication channels affect disputant behavior and experience in important ways.
For example, certain modes of communication are better suited to the expression and understanding of emotion. We can “read” upset or anger better in face-to-face or even video-conference meetings, as opposed to text or email exchanges.
Similarly, the perceived anonymity of an Internet-based communique can disinhibit disputants who would otherwise maintain a more polite discourse. Asynchronous technological formats such as email can slow down exchanges, leading to more thoughtful and deliberate decision-making. But the leanness of the medium and lack of interpersonal cues can lead to conflict escalation where rapport or goodwill in the relationship is lacking.
At an earlier moment in dispute resolution’s development, Northwestern University Pritzker School of Law Emeritus Prof. Stephen Goldberg and the late Frank Sander of Harvard Law School advocated for a form of triage where policymakers considered both a dispute’s characteristics and the particular attributes of litigation, arbitration, and mediation, and “matched the forum to the fuss.” Stephen B. Goldberg & Frank E.A. Sander, “Fitting the forum to the fuss: Factors to consider when selecting an ADR procedure,” 12 Alternatives 48 (April 1994) (available at https://bit.ly/3sAj8sT).
In today’s environment, panelists urged that we similarly match our technologies to the “fusses” that face us. When determining whether a dispute should be handled in-person, by phone, via video-conference or through an Internet chat, decision-makers must consider their goals for the process, the characteristics of the disputants, and the nature of the dispute or particular task at hand. See Jean R. Sternlight & Jennifer K. Robbennolt, “High-Tech Dispute Resolution: Lessons from Psychology for a Post-Covid-19 Era,” DePaul Law Review (forthcoming) (Sept. 9, 2021) (available at https://bit.ly/3HPjqBx).
All the speakers acknowledged that online dispute resolution proceedings pose new, previously unknown questions. Judge Lopez said that he has been spending a great deal of time thinking through the confidentiality issues that arise when litigants screen-share sensitive financial information that can be easily photographed and distributed.
He also noted that judges had to ensure that there was no “home court” advantage, and that litigants appearing in person receive no special attention compared to those appearing virtually. Panelist Alicia Bannon called attention to a study conducted in an immigration court that revealed detainees appearing virtually in immigration proceedings were more likely to be deported than those facing the judge in person. Appearing by video alone, however, apparently was not the determinative factor. Rather, those detainees who accessed court via video-conference also accessed legal services at lower rates than their “in-person” counterparts and seemed generally less engaged with the judicial process. In this way, the perception that online proceedings may provide a lessor form of justice becomes a self-fulfilling reality.
The discussion ended on a final point that resonated with the audience of educators. Courts need to train attorneys to be proficient with new online technologies and provide resources for disputants so that they can competently participate in virtual proceedings.
Similarly law schools need to emphasize technological competence as they work to prepare lawyers, mediators, arbitrators and other dispute resolution for our brave, new, online world.
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The author is Vice President, Advocacy & Educational Outreach at CPR. Her bio on CPR’s website can be found here.
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CPR Protocol on Disclosure of Documents & Presentation of Witnesses in Commercial Arbitration
By Verlyn Francis
One of the advantages of arbitration over litigation is efficiency. Arbitration does not have to contend with the numerous rules of civil procedure. This saves time and, therefore, cost. However, parties to arbitration still expect and do receive procedural fairness in the adjudication of their disputes.
The concept of efficiency combined with procedural fairness is sometimes challenging for arbitration counsel from different jurisdictions who argue that, without all the court system’s procedural steps, parties do not receive fairness.
Trained commercial arbitrators would argue they are misconstruing the whole arbitration process. One of the fundamentals of arbitration is that, at the first pre-hearing conference, the parties have input into the procedural rules that will govern the process before those rules are set out in the first preliminary order.
Unfortunately, document disclosure and witness presentation are two areas that can bedevil the tribunal, arbitration counsel and the parties.
The newly published Protocol on Disclosure of Documents & Presentation of Witnesses in Commercial Arbitration, by CPR, the International Institute for Conflict Prevention and Resolution, will go a long way to providing guidance to tribunals and tribunal counsel on the disclosure of documents and witness presentation in commercial arbitration. This insightful Protocol, a revision of the first Protocol issued in 2009, is the work product of a CPR Arbitration Committee task force co-chaired by Baker McKenzie of counsel Lawrence W. Newman, in New York, and Viren Mascarenhas, a King & Spalding partner who works in the firm’s New York and London offices.
The Protocol’s stated aims are: (1) to give parties to arbitration agreements the opportunity to adopt certain modes of dealing with the disclosure of documents and the presentation of witnesses; and where they have not done so, (2) to assist CPR or other tribunals in carrying out their responsibilities regarding the conduct of arbitral proceedings.
The Protocol does not supersede the institutional rules or ad hoc arbitrations. Instead, it helps tribunals to refer to the Protocol in organizing and managing arbitrations under rules such as those for CPR (for example, CPR’s arbitration rules are available here), other institutions, or ad hoc arbitrations.
In dealing with the disclosure of documents, the Protocol considers the philosophy underlying document disclosure; attorney-client privilege and attorney work-product protection; party-agreed disclosure; disclosure of electronic information, and tribunal orders for the disclosure of documents and information. It provides schedules of the wording that can be adopted by parties in their agreements and tribunals in their orders.
In the section on the presentation of witnesses, the Protocol reminds arbitrators to bring to the attention of the parties at the pre-hearing conference the options for adducing evidence and encourage the exploration of those options with the parties.
The first option is that the parties can agree that the tribunal will decide the arbitration on documents only. It then sets out guidance on how evidence can be submitted by witness statements, oral testimony, depositions, and presentations by party-appointed experts. Also included are procedures that may be applied to the conduct of the hearing.
This does not negate party-agreed procedures for the presentation of witnesses but, of course, the tribunal must be careful not to allow the parties to encumber the arbitration with all the court rules. The Protocol also includes schedules setting out the modes of presenting witnesses, including experts.
This Protocol contains guidance that most commercial arbitrators know, but it is another important tool that tribunals can use to educate counsel and the parties while bringing efficiency into arbitration procedures.
I have added it to my toolkit!
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The author, a mediator and arbitrator who heads Toronto-based Isiko, an ADR consulting firm, conducts adjudicative processes in estates, family, civil, and commercial disputes. She is a Professor of ADR at Centennial College, Toronto, Canada, and a member of the CPR Panel of Distinguished Neutrals.
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Notes on Diversity: Princeton’s Ramona Romero on Higher Education; Toronto Consultant/Neutral Verlyn Francis on ADR Ethics
By Arjan Bir Singh Sodhi
Here is a synopsis of the CPR Diversity in ADR Task Force meeting conducted online on Tuesday, Oct. 5, 2021.
Welcome & Introductions
CPR Diversity in ADR Task Force Co-Chairs the Hon. Timothy K. Lewis and the Hon. Shira A. Scheindlin welcomed and thanked the panelists and attendees for joining.
Interview with Ramona E. Romero, vice president and general counsel at Princeton University, in Princeton, N.J.
Task Force co-chair Timothy Lewis, retired Third U.S. Circuit Court judge and counsel in Schnader Harrison Segal & Lewis started the panel discussion on diversity in ADR. He gave a brief introduction for Romero and asked her to share her experience as an immigrant to the United States. Romero started her interview by thanking all the participants of the meeting. She also shared her story of moving to the United States at age 11 from the Dominican Republic. From an early age, Romero said she emphasized the value of working hard. She placed much importance on collaboration and how it helped her learn.
Task Force co-chair Shira Scheindlin, retired New York U.S. District Court judge and of counsel in New York’s Stroock & Stroock & Lavan, led the second part of the interview, asking Romero to share her views on considering characteristics that are fair for admission purposes in law schools and universities. Romero replied that she believes affirmative action is still required due to racial and ethical inequalities in schooling, housing, employment, and policing. She discussed Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199, which highlights the issues faced by the students regarding their university admissions.
Romero then shared her view on immigration policy, noting, “Immigration is essential to higher education as it is essential to the diverse economy of the United States.” She emphasized the importance of having a diverse U.S. judiciary as it increases trust and perception of fairness. Because, she said, the majority of people who deal with the judiciary are people of color, having a diverse judiciary with more people of color and women will aid in building trust for the judicial process.
Romero concluded her discussion by hoping that corporations, businesses and interested parties can do better in the future by promoting the advancement of women and people of color in the legal profession.
Verlyn Francis, Presentation on “Ethics in Arbitration: Bias, Diversity, and Inclusion.”
Francis is an arbitrator, mediator, and trainer at Isiko Dispute Resolution Consultants, Toronto, and a Professor of ADR at Centennial College, also in Toronto. She started her presentation by talking about the genesis of ethics and impartiality of arbitrators and how we can reduce impartiality bias in arbitration.
She stressed the importance of the code of ethics in the arbitration proceeding. Francis spoke about the consequences of applying those ethical codes to people who didn’t play any role in developing those codes. She said she hopes that many institutions will work on improving rules, ethics, and impartiality in arbitration.
She also spoke about layers of cultural affiliation that can often create stereotypes for other cultures. Hence, she said, an arbitrator should always be aware of implicit bias that can have discriminatory actions towards the parties. She then acknowledged CPR’s recent implicit bias webinar, Imperfect Impartiality: How Neutrals Can Combat Implicit Bias.
She said that often implicit bias operates without awareness of the participants, but the discrimination it produces is visible to those at a disadvantage.
She also expressed concern for the lack of diversity in arbitration that can have its roots in the legal profession, since ADR practitioners are mostly former judges or senior lawyers in law firms where minorities often remain significantly underrepresented.
She also mentioned the Jay-Z case in which the American Arbitration Association roster was challenged due to the lack of available African-American arbitrators. Since that case, the AAA has worked to develop a diverse roster. Francis also noted CPR’s initiatives to further promote diversity and inclusion in the field of ADR. She praised the steps taken by the American Bar Association by passing Resolution 105, which encourages the inclusion of diverse neutrals. She concluded her presentation by encouraging all the panelists to promote diversity in ADR.
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Allen Waxman, CPR’s President and Chief Executive Officer thanked all the panelists for their participation in the discussion. Waxman discussed the importance of understanding dynamics within the tribunal to ensure that all the efforts to increase diversity translate to greater inclusivity.
CPR Announcements closed the Task Force meeting, discussing several events hosted by the CPR Institute, including the 2021 CPR International Conference on Business Dispute Management, which followed the Diversity Task Force event on Oct 6-7 (information at https://www.cpradr.org/events-classes/upcoming/CPR-International-Conference) (Watch CPR Speaks for excerpts from the conference). More events can be found here, and participants were asked to save the date for the 2022 CPR Annual Meeting, March 2-4.
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The author, a CPR 2021 Fall Intern, is an LLM candidate at the Straus Institute for Dispute Resolution, at Malibu, Calif.’s Pepperdine University Caruso School of Law.
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CPR Employment Disputes Committee: Ombud’s Role in Addressing Worker Complaints Is Analyzed
By Daneisha LaTorre
Last month, CPR’s Employment Disputes Committee presented a Zoom discussion highlighting ombuds programs. The panel focused on how ombuds are set up, the services they provide, and their roles within organizations.
Natalie C. Chan, an associate in Sidley Austin’s Chicago office, moderated the June 16 discussion between Joan C. Waters, the University Ombuds Officer at Columbia University in New York, and Timothy Shore, former ombuds at Pfizer Inc.
The event began with a short presentation introduced by the CPR committee chair, Aaron Warshaw, a shareholder in the New York office of Ogletree, Deakins, Nash, Smoak & Stewart, on CPR’s recently released Administered Employment Arbitration Rules, which are available here.
A rules discussion was led by veteran committee members Alfred G. Feliu, a neutral based in New Rochelle, N.Y.; Christopher C. Murray, a shareholder in the Indianapolis office of Ogletree, Deakins, Nash, Smoak & Stewart’s Indianapolis office, and Wayne N. Outten, chair and founding partner of New York’s Outten & Golden. It highlighted Rule 1.4 (Due Process Protections) and Rules 3.12-3.13 (Joinder and Consolidation).
The due process rule is in place to provide fairness, and link to the separate Due Process Protections established by CPR, which can be found at https://bit.ly/3hELLQa.
CPR also created an innovative procedure through the joinder and consolidation rule, which uses an Administrative Arbitrator to address those issues.
The rules were developed by counsel from the plaintiff’s bar, in-house employment counsel, corporate defense attorneys, and neutrals to ensure fairness throughout the rules. For example, the rules provide detailed guidance to address cases where a party has refused to pay required fees, including guidance on preserving the rights of the defaulting party. The rules also provide factors to consider for discovery, early disposition and remote hearings.
The discussion noted that the rules are specifically designed to avoid ambiguity and interpretative disputes.
The discussion also emphasized the importance of the arbitration rules on addressing imbalances between employees and employers. A CPR Speaks post devoted to the rules can be found here.
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After the arbitration rules presentation, Natalie Chan opened the discussion about ombuds programs, their function, and their benefits . Panelists Joan Waters and Tim Shore provided insight into their experience as ombuds from an academic and corporate perspective.
An ombuds is an official appointed to hear individual concerns regarding issues that may arise in the workplace—Shore emphasized the session’s focus on “organizational ombuds,” as opposed to, say, consumer advocate ombuds jobs. In comparison to human resources professionals, ombuds have an obligation to keep the employee information provided confidential. This method creates a safe space and helps to surface workplace conflict or concerns.
As an ombuds in academia, Joan Waters explained that her role at Columbia University is to serve faculty, students, staff, and any affiliates connected to the institution, including parents and alumni, to hear concerns, act as a referral source and help with conflict negotiation.
Waters explained confidentiality is the most significant contributor to her work. As an ombuds, Waters is not authorized to accept notice on behalf of the university or to keep records of any interaction with the individuals who seek guidance. Specifically, individual’s identities are not disclosed unless there is an imminent risk of serious harm. Waters explained that if an ombuds is presented with information that seems to cause an imminent risk of harming an employee, she can use her discretion to disclose the information.
Tim Shore provided perspective on the responsibilities and role of a corporate ombuds. In his former longtime role at Pfizer—where he was the company’s first ombuds–Shore had the responsibility to oversee the operations of the Ombuds Office. In this capacity, Shore reported administratively to the chief compliance officer but had direct access to the company’s chief executive officer and board of directors.
Shore explained that an ombuds provides employees with a place that they can raise issues confidentially.
Ombuds help individuals get to the roots of their issues. If appropriate, the ombuds can also help workers understand the formal steps to be taken if the employee decides that he or she wants to formally report the issue to the company. The process allows employees to control their conflicts and decide if and how that want to take steps to resolve the matter.
To help attendees better understand ombuds programs, moderator Natalie Chan proposed a hypothetical from an employee’s perspective, stating on behalf of a complainant, “I just feel like I’m not being treated properly. My manager doesn’t seem to take my suggestions seriously . . . and I don’t like his tone. . . . I feel like my male counterpart in the same department is getting preferential treatment and better opportunities.”
Joan Waters explained that the hypothetical is typical of what she often hears from employees. As an ombuds, the mission includes helping employees refine their concerns and understand the process of resolving their dispute. Shore explained that often, people will label their issues, such as, “I’m being bullied” or “I’m being discriminated against,” instead of explaining in detail the core issues at hand.
The ombuds’ goal, said Shore, is to identify the specific issues an employee is facing and help provide the employee with the tools he or she needs to resolve those issues. During these conversations, ombuds may walk employees through constructive meetings with their managers about their issues or discussing the formal internal process if an employee wants to escalate the situation.
The question of whether ombuds must report potential discrimination claims that come to their attention was raised. The panelists explained that an ombuds is precluded from reporting unless there is an imminent risk of serious harm.
As ombuds, however, their mission is never to let an employee walk out of the office without a plan to resolve the situation, especially when dealing with a discrimination or harassment issue.
Waters stated that her goal when individuals discuss their situations is to help them specifically identify the problem. She believed once employees understood their options, the individuals would be better equipped to move forward with their concerns if they choose.
Shore stated that his former organization does not track the specific identity of individuals. But, he reported, it does track demographic information such as race or gender of the individuals that came to the ombuds office. This allows the ombuds office to identify trends across the organization. When the data reveals a pattern in a location or department, an ombuds can bring that issue to the attention of the appropriate leadership without revealing the identity of any of the individuals involved.
Shore also stated that the employee’s perceptions should not be ignored. He said that perceptions are real, and if there are numbers of employees with the same perception, the problems the perception reveal must be addressed.
Shore added that formal employment claims have declined at the company since the launch of Pfizer’s ombuds program. Additionally, he emphasized the cost of an ombuds resolving an employee dispute is a fraction of the time and money spent resolving more formal claims.
Shore said that, despite their effectiveness, ombuds programs are not common in corporations, with less than 10% of U.S. companies having a program.
Finally, panelists highlighted training programs for individuals interested in becoming ombuds. Both panelists suggested training from the International Ombudsman Association. Waters also suggested Columbia University’s masters’ program in Negotiation and Conflict Resolution.
To learn more about ombuds, Tim Shore has a video on the CPR Speaks blog. Additionally, for training opportunities, you can access the Columbia Ombuds Office masters’ program here and IOA training here.
The June 16 CPR Employment Disputes Committee video on the panel discussion can be viewed by individuals at CPR members after logging into CPR’s website here.
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The author, entering her second year at Washington, D.C.’s Howard University School of Law, was a CPR 2021 Summer Intern.
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Arbitration for Art: Regs Seek to Provide a Better Way to Resolve Disputes
By Jacqueline Perrotta
Over the past 30 years, the Art World has become the Art Market. Selling and purchasing art has become Big Business for collectors and investors alike. In a mostly unregulated market, new regulations are emerging on resolving disputes between parties involved in art deals.
On July 13, 2020, subject-matter experts including lawyers and professors with experience in the art sector and in arbitration, gathered to form these new “Regulations on Arbitration in the Art Sector of the Venice Chamber of Arbitration” as a way to better resolve art disputes.
A January 2021 article, “Art and Arbitration: an overview in light of the new Regulations on Arbitration in the Art Sector of the Venice Chamber of Arbitration,” highlights the context of the regulations in today’s global art market, the advantages of using arbitration for art sector disputes, and the new regulations, including their importance and potential impact on how the art market resolves disputes.
Described as the first initiative of its kind in Italy, the regulations promote the use of arbitration and provide an alternatives to the Hague’s Court of Arbitration for Art, or CAfA. Established in 2018, the Court of Arbitration for Art was founded to resolve disputes through alternative dispute resolution throughout the art market. Through CAfA, disputes can be arbitrated or mediated with the help of the Netherlands Arbitration Institute.
Disputes that arise in art parallel commercial transactions, but with niche concerns including issues of cultural and religious sensitivity, confidentiality, and authenticity.
The use of these regulations for art arbitration comes with several upsides. The article linked above highlights a prominent advantage where arbitration is efficient and is “freely accessible”–having an arbitration clause already baked in to provide a jumping off point if a dispute arises out of difficult cultural matters or from the uncertainty of fraudulent works.
Another upside discussed in the article that comes with using arbitration is “guaranteed confidentiality,” because art-market players often are sensitive regarding “reputation and discretion,” and there is a heightened importance of privacy for collectors and dealers.
The goal of the Venice Chamber regulations is also to broaden the use and scope of arbitration to the contemporary art context and go beyond the limited definitions of national legislation. By introducing the regulations, arbitration as a means of alternative dispute resolution is promoted as an efficient and effective way to resolve art sector disputes.
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The author, a J.D. student who will enter her second year this fall at Brooklyn Law School, is a 2021 CPR Summer Intern.
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Enabling Workplace Purpose with Your Values: A Conversation with Wharton’s Richard Shell
Doing your best on the job requires sticking with your conscience and morals, and honing the skills you need to keep on your path, including your conflict management technique.
So says G. Richard Shell, Thomas Gerrity Professor of Legal Studies & Business Ethics and Management and chair of the Legal Studies and Business Ethics Department at the Wharton School in Philadelphia, who joins International Institute for Conflict Prevention & Resolution President and CEO Allen Waxman for a conversation about Shell’s new book, “The Conscience Code: Lead With Your Values. Advance Your Career,” which was published on June 8 by Harper Collins Leadership.
Shell tells Waxman that “late” millennials and early Gen Z-ers may have a tough time in the workplace. “These are people for whom values are nonnegotiable, in a different way than some of the earl[ier] generations,” says Shell, noting that he has been seeing MBA candidates who are seeking to escape from what they view as unethical work environments.
But, he explains, these employees have insufficient skills to “move the organization toward the good” and to navigate workplaces that push and test their moral codes.
That, says Shell, is the inspiration for “The Conscience Code.”
Shell and Waxman discuss workplace conflicts that fall on middle management arising from a variety of sources, and how managing the conflict can “enable purpose,” in line with CPR’s mission of fostering a dispute resolution culture.
Shell adapted a self-test from “The Conscience Code” on conflict management skills for the new July/August issue of Alternatives to the High Cost of Litigation. The test advises users on how they face conflict, with the scoring pointing the user to the personal style categories of Advocate, Problem-Solver, Compromiser, Avoider or Accommodator. The article can be found here.
Please share the video on social media, linked below, and directly on YouTube.
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CPR Speaks 