How Litigants View the ADR Options in Courts

By Alice Albl

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dispositive Motions in Arbitration: Authority, Rules and Practical Tips

head shot 1By Janice L. Sperow

As companies, parties, and their lawyers across the nation debate whether they may, or even should, resolve their disputes in court or arbitration, courts and arbitrators—both faced with pandemic-generated, unprecedented backlogs—seem more willing to entertain docket clearing motions.

For some practitioners, dispositive motion practice in arbitration presents a new challenge. Yet, dispositive motions have existed in arbitration almost as long as arbitration itself. Now, however, both parties have embraced them. Recently, arbitrators have witnessed an increase in requests for leave to file them as parties dealing with the economic fallout of the pandemic attempt to resolve disputes sooner, more efficiently, and more cost-effectively. As more practitioners turn to arbitration to resolve disputes, they increasingly look to dispositive motion practice to promptly adjudicate them.

Still, some arbitrators have questioned their authority to entertain dispositive motions. Others hesitate to dispose of the arbitration before it really starts when it may well be the claimant’s only course of redress. Still others, like the author, view dispositive motions as a potential opportunity to narrow and resolve issues fairly and efficiently for both parties. So where do arbitrators obtain the power to consider dispositive motions?

The Parties’ Contract

Like the arbitration itself, the authority often starts with the parties’ contract. The arbitrator can and will allow dispositive motions if the parties’ arbitration clause provides for them. Many litigants now specifically provide in their arbitration agreements that the arbitrator shall have the authority to resolve jurisdiction, arbitrability, and many other threshold or dispositive issues. Indeed, astute drafters will frame their arbitration clauses to include the right to bring a dispositive or threshold motion to avoid the arbitrator’s exercise of discretion. Arbitrators will typically enforce such clauses if both parties may reciprocally invoke them.

Practical Tip: Explicitly provide the arbitrator with the authority to entertain dispositive and threshold motions directly into the parties’ arbitration agreement rather than incorporating them indirectly by reference to court rules, civil procedure rules, or forum administration rules. Court, civil procedure, and forum rules might include other provisions, which the parties may consider less desirable and which they may not want to incorporate wholesale into their agreement. The parties should also determine if they want to have the automatic right to bring such motions or merely grant the arbitrator the authority to entertain them at her discretion or upon a specified showing. If the parties intend to provide contractually for the application of a specific arbitral forum’s rules, review that forum’s dispositive motion rule and determine if the parties wish to modify it in the contract. Most arbitral fora expressly allow the parties to modify in writing the application of any rule. Finally, provide for reciprocity to enhance the clause’s enforceability.

Post-Dispute Agreement

If the contract itself does not mention the authority to hear dispositive motions, the parties may always agree to them in a written stipulation or even orally after the dispute has arisen or after the arbitration has begun. Contentious litigants may yet find common ground and agree to resolution of a threshold issue upfront if it will save time and expense. They will also routinely agree post-dispute to motions to resolve choice of law, jurisdiction, contract formation, forum rule applicability, and other threshold issues which will govern the rest of the case moving forward.

Practical Tip: Reduce the post-dispute agreement to writing whether by stipulation or in the arbitrator’s order. Identify the specific scope of the agreement including the precise issues to be determined by motion, page limits, and a briefing schedule. Decide if, pending the motion’s resolution, discovery should be stayed, continued, or restricted to information necessary to adjudicate the motion. Agree upon an early deadline for the resolution of the motion to maximize its cost savings and efficiency. Also set a cutoff date by which all dispositive or threshold issues must be brought. Early resolution saves the most time and expense; a dispositive motion brought on the eve of arbitration merely disrupts the process and often adds to, rather than minimizes, the costs of arbitration. Finally, proffer a dispositive motion agreement in writing to opposing counsel even if he will not likely agree; then track the fees spent on that issue at hearing and seek to recover them if the arbitrator rules in your favor on that point. Even if your side loses on the ultimate merits of a claim, the arbitrator may offset the prevailing party’s fee award if the other side incurred unnecessary fees on an issue, which could have been summarily adjudicated.

The Arbitral Forum’s Rules

The arbitration rules applicable to the dispute will usually permit dispositive motion practice. For example, in 2011, the pioneering  International Institute for Conflict Prevention & Resolution (CPR) specifically allowed for dispositive motion practice in the arbitral forum when it issued its 2011 Guidelines. In 2013, the American Arbitration Association also championed the arbitrator’s authority to entertain dispositive motions when it amended its rules to explicitly permit the filing of dispositive motions. Likewise, CPR’s first edition of Administered Rules promulgated in 2013 expressly authorized dispositive motions. Now, most arbitration associations include a dispositive motion rule. For example, JAMS’ Comprehensive Rule 18 explicitly authorizes them. Only the Financial Industry Neutral Regulatory Authority (FINRA), which involves primarily customer complaints, generally prohibits them; but even FINRA allows them under a few exceptions. We will explore the AAA and CPR rules in more depth because they provide parties with the most specific and comprehensive guidance.

The AAA Dispositive Motion Rules

Notably, the AAA did not adopt a uniform dispositive motion rule. Instead, it wisely chose to tailor its rules to the type of arbitration. The AAA Commercial Rule 33 now provides: “[t]he arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case.” Likewise, the AAA Consumer Rule 33 and Employment Rule 27 state: “[t]he arbitrator may allow the filing of a dispositive motion if the arbitrator determines that the moving party has shown substantial cause that the motion is likely to succeed and dispose of or narrow the issues in the case.” The AAA Construction Rule 34 provides: “[u]pon prior written application, the arbitrator may permit motions that dispose of all or part of a claim or narrow the issues in a case.”

Interestingly, the dispositive motion rule applicable to consumer and employment cases, which involve individuals arbitrating against companies, require a higher initial showing than the dispositive motion rule applicable to commercial cases, which involve two companies arbitrating against each other. The consumer and employment rules require the moving party to show “substantial cause” that the motion is likely to succeed while the commercial rule only requires the moving party to show that the motion is likely to succeed. “Substantial cause” suggests more ample, considerable, or abundant cause whereas “likely to succeed” evokes mere feasibility and reasonableness – a fair chance rather than a good chance.

Conversely, the construction rule does not require proof of a likelihood of success but merely a written application showing that the motion will “dispose of all or part of a claim or narrow the issues in a case.” Of course, the written application itself will be more persuasive if it demonstrates the motion’s likely success. Unlike the construction rule, the AAA employment, commercial, and consumer dispositive motion rules do not technically require a written application. However, most arbitrators require them, nonetheless. At a minimum, arbitrators will expect an email requesting leave, not just an oral request.

While the specific rules differ in some key respects, they also share some important commonalities. For example, all the AAA dispositive motion rules – and indeed many if not most arbitral fora rules – allow dispositive motion practice only at the arbitrator’s discretion. AAA Commercial Rule 33, Consumer Rule 33, and Employment Rule 27 (“arbitrator may allow”); Construction Rule 34 (“arbitrator may permit”). Unlike civil litigation, arbitration does not include an automatic right to file a dispositive motion. Parties must request leave to file a motion, which the arbitrator may grant or deny within her discretion.

The three rules all also require the moving party to make some initial showing to convince the arbitrator why she should exercise her discretion to permit the dispositive motion. AAA Commercial Rule 33 (“only if the arbitrator determines that the moving party has shown”); AAA Consumer Rule 33 and Employment Rule 27 (“if the arbitrator determines that the moving party has shown substantial cause”); AAA Construction Rule 34 (“upon prior written application”).

All three also require the moving party to show that the motion will “dispose of or narrow the issues in the case.” Hence, in addition to the required degree of success, the moving party must demonstrate that the motion, if granted, will eliminate an issue, or at least narrow the scope of the hearing. Basically, the AAA’s rules all require two different types of proof: merit and efficiency – some likelihood of success and some cost savings over a hearing on the issue or claim.

But the AAA’s rules all require only either disposition or narrowing of the issues, not both. Accordingly, if the motion will achieve some economies of scale, the arbitrator can and should properly entertain the motion even if it does not completely dispose of an issue.

Practical Tip: Practitioners who wish to use the rules to narrow, rather than dispose of, issues should still present adequate proof of efficiency. For example, the moving party may want to demonstrate that early resolution of the issue may eliminate the need for expert or other witnesses who would not otherwise testify, may reduce the number of exhibits, may limit the necessary scope of discovery, or may reduce hearing time in some other way or even encourage settlement. 

Arguably, the rules do not require the complete disposition of a claim. For example, Construction Rule 34 explicitly provides that the motion may dispose of all “or part” of a claim. While the AAA’s Commercial, Employment, and Consumer Rules do not contain the same express language, they likely also permit partial disposition of a claim because they all permit the motion if it would narrow an issue and an arbitrator will likely find that partial resolution of a claim will indeed narrow the issues in the case.

Practical Tip: As noted, the parties can choose to include the right to file motions in their arbitration clause or post-dispute agreement rather than leave it to the arbitrator’s discretion. They can also set the applicable standard that they want to govern the grant or denial of the motion if they do so in writing. If the rules apply as written, consider a two-step proffer to save costs: during the first step, the moving party shows the rule’s satisfaction in a short letter or email without a response from the opposing party during which time the case and discovery proceed; then, in the second step, if the arbitrator finds that the moving party has satisfied the applicable standard, the parties set a full briefing schedule and suspend all or some discovery pending the motion’s resolution. In whatever manner litigants decide to tackle dispositive motion practice in arbitration, plan ahead and raise the issue early in the initial case management conference to allow sufficient time to schedule the motion(s) well before the hearing date in order to maximize cost savings for all parties. Consider the desirability of two different deadlines: an early one for purely legal or threshold questions and a later one at the close of discovery, if appropriate, for remaining disputes.

CPR’s Dispositive Motion Rule

In 2013, ADR industry leader CPR also issued its rules to expressly provide for dispositive motion practice. Under Rule 12.6, a party may apply to file “a motion for early disposition of issues, including claims, counterclaims, defenses, and other legal and factual questions.” CPR 2019 Administered Arbitration Rules, Rule 12.6(a). Rule 12.6 then instructs the applicant to include the issues to be resolved, the basis for the motion, the relief requested, how early disposition would “advance efficient resolution of the overall dispute” and a proposed procedure for resolving the issues. Rule 12.6(b).

CPR’s standard for the granting of the application differs slightly from the AAA’s Rules. CPR requires the arbitrator to find “a reasonable likelihood that hearing the motion for early disposition may result in increased efficiency in resolving the overall dispute while not unduly delaying the rendering of a final award.” Rule 12.6(c). If the arbitrator finds the motion “appropriate,” she will then establish the governing procedure, which may involve “written submissions, witness testimony by affidavit or other written form, limited hearings, or in any other manner.” Rule 12.6(d).

While the CPR and AAA Rules may differ somewhat in terminology, they represent a fairly uniform standard at least in the commercial arbitration context. The AAA Commercial Rule 33 requires “likely” success whereas the CPR Rule 12.6(c) requires “reasonable” success. Yet, they essentially require the arbitrator to undertake the same analysis in evaluating the burden of proof since “likely” evokes a fair, reasonable chance of success, whereas the AAA Consumer Rule 33 and the AAA Employment Rule 27 with their “substantial cause” requirement demand a higher quantum of proof.

But the rules do differ slightly more when it comes to what the applicant must prove: under the AAA Rules, the arbitrator will determine if the applicant has shown that the motion will dispose of or narrow the issues whereas the CPR Rule requires the arbitrator to focus on the motion’s overall efficiency without added delay. The CPR Rule technically does not focus on the likely success of the motion itself but rather reasonable likelihood of gaining efficiencies if the arbitrator grants the motion. The difference is nuanced, however, and may ultimately result in the same outcome as motions which dispose of or narrow the issues will necessarily promote efficiency.

The real difference between the AAA and CPR rules centers on the concept of delay. CPR specifically directs the arbitrator to consider the potential delay caused by adding a dispositive motion practice to the arbitration process, while the AAA rules do not mention delay to the final award as a specific consideration. Under the CPR Rule, an arbitrator may rightfully deny an application for leave to file a dispositive motion if it would unduly delay the rendering of the final award. Thus, under the CPR Rule, an arbitrator is much more likely to deny leave to file a dispositive motion the closer the parties get to the scheduled hearing. Indeed, CPR’s emphasis on “early” disposition of issues encourages the parties to use dispositive motions during the preliminary stages of the arbitration before or after limited discovery.

Practical Tip: As the applicant, counsel should consider raising issue identification and disposition, especially of legal questions, at the very first case management conference to forestall any delay argument. If the parties and the arbitrator calendar the motion from the outset of the case, the nonmoving party will be hard pressured to argue undue delay. To further minimize delay, allow discovery to proceed on the factual issues while the arbitrator considers the legal issues. Conversely, as the nonmoving party, counsel should insist on the discovery necessary to fully adjudicate the issues before any motion practice. Be prepared to identify with particularity the discovery needed on each issue for which the applicant seeks early disposition.  

CPR’s Dispositive Motion Guidelines

More than just a rule, CPR provides arbitrators and parties well-considered guidelines on the process. CPR issued formal “Guidelines on Early Disposition of Issues in Arbitration,” (“Guidelines”), which strike a fair balance between unmeritorious motions and issue winnowing. The Guidelines clarify that the parties may use dispositive motion practice to narrow and simplify the issues for hearing and not just to dispose of the entire case. They also encourage arbitrators to take an active role in promoting early issue identification and disposition. Guideline 1.1. They also warn the parties and the arbitrator to consider efficiency to the case overall. In other words, the arbitrator may properly deny leave to file a dispositive motion if, even if granted, it would not materially reduce the total time and cost involved in the arbitration. Guideline 2.4.

Court Approval & Inherent Authority

The Sixth Circuit recently relied upon AAA Rule 27 to uphold an arbitral tribunal’s summary judgment disposition in a AAA employment arbitration. McGee v. Armstrong No. 18-3886, October 29, 2019. McGee did not explicitly address Rule 27’s language. McGee merely cited R-27 and held “as such, the arbitrators did not exceed their power.” While the court based its decision upon Ohio’s state vacatur statute, the statute contains nearly identical grounds for vacatur as the FAA. Consequently, McGee teaches us that courts will not likely vacate a dispositive award by arbitrators under the FAA or state law as an excess of power if it satisfies the requirements of the applicable arbitration rules authorizing arbitrators to summarily dispose of matters. However, even before the AAA and the CPR adopted their dispositive motion rules, the courts routinely held that arbitrators had inherent authority to entertain dispositive motions. See, e.g., Schlessinger v. Rosenfeld, Meyer & Susman, 40 Cal. App. 4th 1096 (Cal. App. Ct. 1995).

Types of Dispositive Motions

Dispositive motions typically fall into three groups: (1) threshold or pre-discovery motions; (2) post-discovery summary adjudication motions; or (3) tactical motions. Threshold motions often raise procedural issues, such as venue, necessary parties, arbitrability, jurisdiction, applicable arbitral rules, scope of the arbitration, mootness, standing, res judicata, collateral estoppel, joinder, small claims election, or consolidation. But they can present substantive issues as well, such as contract formation, contract existence, contract validity, waiver, laches, plain meaning, estoppel, choice of law, failure to state a claim, right to punitive damages, right to attorneys’ fees, statute of limitations, tolling, statutory construction, statute applicability, consent, irrevocable consent, contract provision enforceability, liquidated damages availability, injunctive relief, defenses based upon contractual covenants, statutes of fraud, release, and more.

Substantive post-discovery motions are akin to partial or complete summary adjudication but can also include a motion to amend the claim based upon newly discovered facts, a failure to state a claim based upon undisputed facts, or even a motion on the pleadings.

Parties sometimes use tactical motions, not necessarily for their merits, but to educate the arbitrator early on about a key issue or to get a pre-mediation or pre-settlement “read” from the arbitrator on a key issue. They may seek to eliminate an expert or other witness by removing the issue from the arbitration’s scope. They may simply hope to delay the proceedings, raise the costs to the underfunded party, or disqualify counsel. Fortunately, CPR’s rule specifically considers any delay caused by the motion as an explicit factor in denying leave to seek a dispositive ruling. Some have even used AAA Commercial Rule 57 to defeat jurisdiction: they move to amend the claim, increasing the amount of damages, which in turn increases the AAA administrative fees, which defeats jurisdiction pending payment of the augmented fees.

Practical Tip: Regardless of the type of motion, all should result in a written award or order, which specifies the basis for the denial or grant of the motion. The movant should craft a well-written proposed order for the arbitrator as part of the motion but so should the opponent. Consider whether to request an opportunity for renewal after the completion of discovery or an aspect of discovery if the arbitrator denies the motion. The proposal should also identify the discovery completed up to the motion to circumvent an attack based on incomplete discovery or evidence. The opponent should identify the discovery still needed before the arbitrator can fairly resolve the issue. If the motion only partially disposes of the dispute, identify the remaining issues to be decided at the hearing.

Bottom line: As long as an arbitrator provides the parties a fair opportunity to present their cases, she can grant a dispositive motion without violating the right to a fundamentally fair hearing—the touchstone for whether or not a court will vacate an arbitral award. So, when you can, consider threshold and dispositive motion practice in arbitration as a way to cost-effectively narrow or resolve the arbitration.

The views expressed in this article are those of the author(s) and do not necessarily reflect the views of The CPR Institute.

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Janice Sperow is a full-time arbitrator, mediator, hearing officer, and prevention facilitator. She serves on the CPR’s mass claims, employment, commercial, banking, financial services, dispute prevention, mediation, flat fee mediation, and pro bono panels as well as the AAA’s commercial, large case, employment, technology, healthcare, consumer, pro se, and workplace investigation panels. Also serves as a neutral for the San Diego Superior Court (where she sits as a Judge Pro Tem), the Financial Industry Neutral Regulatory Authority, the National Arbitration FORUM, the World Intellectual Property Organization, the National Futures Association, the National Association of Arbitrators and Mediators, and the Better Business Bureau. Member, National Academy of Distinguished Neutrals. Serves as Hearing Officer for the Port of San Diego. Former President of the National Association of Women Lawyers and Vice-President of California Women Lawyers, Member, ABA Dispute Resolution and Business Law Sections. www.sperowadr.com.

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.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Bernardo M. Cremades Sanz-Pastor”

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Bernardo M. Cremades Sanz-Pastor

The CPR European Advisory Board (EAB) is proud to introduce its new CPR Speaks blog series: “Meet CPR’s Distinguished Neutrals in Europe.”  CPR’s panel of neutrals contains many experienced and skilled Neutrals, acting as arbitrator and/or mediators in dispute resolution around the globe.  Through a Q&A, covering some of the main and hot topics discussed in the world of international disputes resolution, this new blog posts series offers you an insight into the views of some of Europe’s leaders in the field. 

Bernardo M. Cremades Sanz-Pastor is the first Europe-based CPR Distinguished Neutral to have answered our Q&A. Enjoy the read and please feel free to reach out to the featured Distinguished Neutral or the authors of these posts for any questions.

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

Bernardo Cremades is the founding partner of Spanish law firm B Cremades y Asociados based in Madrid.  He is without doubt a pioneer in the field of international arbitration and enjoys world-wide recognition.  His experience includes international commercial and investment arbitration.  He regularly acts as arbitrator in Spanish domestic and international disputes relating to commercial contracts and investment protection.  In addition, Bernardo regularly speaks at conferences on topics of international arbitration around the world.  As a commercial lawyer was involved in some of Spain’s most important M&A transactions.

Bernardo kindly agreed to grant us an interview for the CPR EAB blog series profiling CPR Neutrals in Europe.  His insights are a must read for anyone regardless of the level you find yourself in your career. We thank Bernardo Cremades for his honesty and the time he has dedicated to sharing his experience and insights.

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

When I was young, I lived a very quiet life dedicated exclusively to university teaching and research.  Despite my youth, the Court of Arbitration of the International Chamber of Commerce nominated me to preside over an arbitral tribunal in Vienna, in the proceeding known by its Parties NORSOLOR v. PABALK.  It was a commercial dispute regarding a purchase-sale and technical assistance contract between a Turkish and a French company.  As the arbitration was taking place in the city of Vienna, and no contractual provision gave the arbitral tribunal further powers, we had to arbitrate in law. The contract did not specify the applicable law, so the option of applying French or Turkish law was not possible as we would have reached diametrically different conclusions depending on which one was selected. This was not satisfactory. We thought the best solution would be to apply the general principles of law, invoking the Lex Mercatoria. Once the arbitration award was issued, one of the parties appealed for the annulment of the award before the Austrian courts, eventually reaching the Supreme Court. The argument in support of the annulment was that a tribunal, which was obliged to render a decision in accordance with the law, had used the general principles of law. In the challenging party’s opinion, this converted an arbitration in law into an equity decision. The Supreme Court understood that, in international law, the general principles are a source of law and, therefore, considered that our arbitration decision was correct. When one of the parties subsequently attempted to execute the award in Paris, the same problem arose: the argument was that our decision converting the arbitration into one in equity violated public order. It reached the Court of Cassation, which reiterated the doctrine admitted by the Austrian Supreme Court: the application of the Lex Mercatoria did not transform the arbitration; it remained de jure due to the legal nature of the general principles of International Law [Soc. Pabalk Ticaret Ltd Sirketi v. Soc. anon. Norsolor, Cour de Cassation (1re Ch. Civ.), 3 October 1984′, Journal of International Arbitration, (© Kluwer Law International; Kluwer Law International 1985, Volume 2 Issue 2) pp. 67 – 76]. Our decision sparked numerous doctrinal opinions and generated a lively debate. My quiet, academic life transformed into an active professional life dedicated to the world of arbitration.

  1. Who is your dispute resolution hero/heroine?

In an arbitration between the company FIAT and the Government of Spain in which the future of the SEAT car factory was discussed, I was fortunate to work with a co-arbitrator who would mark my arbitration conduct in the future. I am referring to Berthold Goldman, who can undoubtedly be considered the father of modern international arbitration. After the different hearings we held with the parties, the tribunal deliberated at length. Berthold Goldman defended with passion the claims of the FIAT company until the President tipped the balance in favour of my views. From that moment, Professor Goldman’s enthusiasm became an example of chivalry as he took me by the arm through one of the halls where we were deliberating and told me: “you have won, and you can rest assured that the arbitration award is going to be issued by unanimity.” This is an example that I have always remembered when faced with the temptation to issue a dissenting opinion.

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

Join a team and learn the profession of arbitrator, acting as secretary to the tribunal, or as counsel under the direction of an experienced arbitrator. Time will make you an arbitration expert, able to consider flying solo.

  1. Were you ever the first in doing something?

 The award mentioned above in response to the first question where we invoked the Lex Mercatoria as the applicable law opened a wide discussion and generated controversial points, especially in the debate between arbitration experts of Anglo-Saxon and continental law.

In the ABBOTT vs. BAXTER dispute, under CPR administration, we based our decision on good faith when the applicable law was that of Ontario (USA) [Baxter Int’l Inc. v. Abbott Labs., 540 U.S. 963 (2003)]. This is what we understood from an international litigation on trademark law and the award was ratified by the US Supreme Court.

In the HESHAM TM AL WARRAQ arbitration against the Republic of Indonesia [Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, 15 December 2014], we used as a basis to accept jurisdiction, the ICO (Organization of Islamic Cooperation) Treaty, the second largest intergovernmental organization. Our decision set a precedent for numerous subsequent arbitrations.

In the world of investment arbitration, the LANCO case against the Argentine Republic opened the door to investment protection arbitration in cases where the arbitration agreement consisted of the public offer for submission to arbitration by the receiving State of the investment, and for the legitimate investor to initiate an arbitration proceeding for the alleged breach of the treaty by the receiver of the investment [Lanco International Inc. v. The Argentine Republic, ICSID Case No. ARB/97/6]. In this arbitration, different issues were raised that will later be the subject of numerous awards, such as the principle of attribution of responsibilities to the State regarding breaches of intra-State public entities.

The SALINI arbitration against the Kingdom of Morocco extended the concept of investment to administrative concessions [Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4]. Investment protection arbitration had been specially designed with a view to litigation derived from investments related to natural resources. After SALINI, the concept of investment protected by arbitration grew.

In the LUCCHETTI arbitration against the Republic of Peru [Empresas Lucchetti, S.A. and Lucchetti Peru, S.A. v. The Republic of Peru, ICSID Case No. ARB/03/4], arbitration protection was questioned when corruption was involved in making the investment, on the grounds that those whose hands are stained should not be subject to any international protection, including arbitration.

  1. What makes your conflict resolution style unique?

As in any profession, I believe that it is most important to be well educated and then to devote many hours to preparation. The arbitrator must read all the submitted documents carefully and be able to respond to the parties’ requests. There is nothing worse than storing the documentation and only dealing with it when the time comes for the hearing. Many arbitrations are unnecessarily lengthy because the arbitrators do not know the substance of the matter sufficiently well to make decisions as proceedings progress.

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

The main challenge of the arbitrator today is to expedite the proceeding.  Today arbitration has ceased to be the artisanal activity it was many decades ago. We are facing a large arbitration industry.  To prevent that the proceedings be excessively long, the arbitrator must coordinate the agendas of the parties and their lawyers; respond promptly to excessively large document discovery requests; and try to minimize the duration of the hearings. The theatricality of certain “cross-examinations” should also be interrupted when deemed unnecessary and the abundance of witnesses and experts is sometimes unnecessary.

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

In the written phase, counsel can write excessively long and repetitive documents, when they should perhaps concentrate their efforts more on writing an executive summary for ease of reading. In the oral phase, counsel often forgets that his or her main mission is to convince the arbitrators and not to be so aware of the transcript or the client present in the meeting room.

  1. If you could change one thing about commercial Arbitration, what would it be?

Every effort should be made to reduce the duration and the excessive costs (that can sometimes be scandalous) of arbitration proceedings.

  1. Some specific topics:

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

 The requirements of cybersecurity and data protection in arbitration require both lawyers and arbitrators to strengthen the technological infrastructure of their firms. Before, during and after the arbitration there are security and protection rules that must be firmly maintained as arbitration frequently deals with very sensitive topics requiring strong guarantees.

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

The IBA Rules emerged – and I can testify to this since I was part of the drafting team of the first version – as a result of a real need to unify criteria between common law and continental law jurists. It is rare to see an arbitration proceeding today without, at least, a reference to the IBA Rules, which have become a true customary international procedural law. In fact, there is much talk about the Prague Rules in conferences and colloquiums, but I have never seen them applied or invoked in arbitration proceedings. The authors of the Prague Rules wanted to draw attention to the excessive costs and duration of the arbitration proceedings and they can serve as a wake-up call in the daily life of our arbitrations or even be taken into account when modifying the IBA Rules in the future, giving greater space to criteria from civil law legal systems. The message of the Prague Rules is very interesting, but in practice its application should be questioned, simply by analysing the fourth paragraph of its first article when it states that “At all stages of the arbitration and in implementing the Prague Rules, the arbitral tribunal shall ensure fair and equal treatment of the parties and provide them with a reasonable opportunity to present their respective cases.”  If the aim with these rules was to avoid the due process paranoia, different articles of these rules, such as the aforementioned article, question their effectiveness – which is why arbitrators are reluctant to use them. It cannot be forgotten that the purpose of the IBA Rules was limited to the taking of evidence, while the title of the Prague Rules is “Rules on the Efficient Conduct of Proceedings in International Arbitration”.

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

An important event in the world of dispute prevention and resolution is the emergence of third-party funding. Many arbitration proceedings are initiated today because the claimant and possibly the defendant have funding to undertake costly arbitration proceedings and subsequent court proceedings. Third-party financing is acquiring a very important dimension and is introducing the system of syndicated foreign currency loans to the financing of large litigations. Litigation has become a financial asset, and funders monetize their financing activity with the outsourcing of parts of the financing. Litigation and especially arbitration awards are bought and sold. A true secondary market has been created for the financial assets that arbitrations have become.

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

I consider that ADR is recommendable for particularly personalized disputes. In terms of investment protection, it is unthinkable to reach agreements with sovereign states, which would undoubtedly be analysed in the country in question under the inquisitorial magnifying glass of corruption. I believe that disputes with consumers or those that occur in family businesses are very suitable for resolution through ADR. Equally, agreements between companies whose directors have full powers are good ADR candidates, since the positive result of a conciliation or mediation is only possible when those acting on behalf of the companies have sufficient decision-making capacity to reach a negotiated agreement. In construction disputes and, in general, disputes in which many awards are discussed, dispute boards are highly recommended. The periodic presence of the dispute board members from the beginning of the construction solves many problems that are not intelligible over time.

  1. In your view, what makes CPR unique?

Its speed. Arbitration administration centres have become excessively bureaucratic institutions, with internal policies regarding the appointment of arbitrators which are not always in the best interests of the parties to the dispute. Arbitration administration centres are service companies and as such they must compete with others; their speed of action is probably the most attractive asset to their clientele.

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

There is much talk about the clash of cultures in international arbitration and it is undoubtedly greatly exaggerated. I remember many years ago at the meetings of the former ICCA, the representative of China, the famous and much-loved Professor Tang, insisted that I should participate in arbitrations in China to learn the difference between how arbitration proceedings are run in different cultures. I was appointed arbitrator under CIETAC to resolve a dispute between a French car company and its distributor in China. Professor Tang presided over the tribunal and from the first day he tried to get the parties to reach agreements under his mediation. On the third day, after seeing that the President’s attempts to mediate between the parties were unsuccessful, both parties formally told us that if they had gone to CIETAC it was precisely for us to resolve their differences in arbitration, and could we please set aside the conciliation and mediation attempts – which we did. It was a good lesson for me that maybe the much talked-about cultural differences are not so true in practice. A good and experienced president of the tribunal should know when he or she can help the parties to reach an agreement and when the limits of arbitration prevent it.

 

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.

 

 

A Report on the CPR European Congress on Business Dispute Management (Part II)

EU flagBy Vanessa Alarcón Duvanel

This is the third post of a new CPR Speaks feature, “The European View,” offering valuable insights and perspectives from CPR’s European Advisory Board (EAB).

On 31 May 2018, CPR held its annual European Congress on Business Dispute Management in London. Organized by CPR’s European Advisory Board (the “EAB”) and kindly hosted by SwissRe in the incredible Gherkin building, the event convened European and American practitioners for a successful day of discussion led by four interesting panels. 

This blog piece reports on two panel discussions that took place in the afternoon of the European Congress on Business Dispute Management on 31 May 2018 in London, in the Gherkin Building, kindly hosted by SwissRe.

The afternoon session started with the keynote address of MasterCard Europe President Javier Perez who shared with the audience the important role of ADR in MasterCard’s business worldwide. In a thought-provoking speech, Mr. Perez emphasized MasterCard’s partnership approach with its clients according to which MasterCard does not initiate disputes (litigation or arbitration) against its clients, and rather uses ADR as a means to save the trust relationship.

Climate change and ADR

Moderated by Daniel Schimmel (CPR EAB member, Foley Hoag), the first panel of the European Congress’ afternoon session had four speakers: Kate Cook (Matrix Chambers); Dr. Karl Mackie CBE (CEDR); Nicola Peart (Three Crowns LLP); and Peter Stewart (Interfax Global Energy). Starting from the 2015 Paris Agreement, the panelists discussed how climate change may affect ADR.

The 2015 Paris Agreement signals a significant change and represents concrete actions and timeframes to reduce emissions and adapt to the impact of climate change. It contains strong procedural rules and verification obligations and tells States what to do in respect to climate change. Things have evolved in recent years and changes have been implemented. All States recognize nonetheless that there is a significant gap between where we are and where we should be.

Almost everything in the Paris Agreement is measurable: one can establish whether water is clean/cleaner, what the average temperature is, the number of miscarriages, etc.  Liability can be disputed. Climate change matters are therefore likely to generate disputes and ADR processes. Below are a couple of scenarios mentioned by the panelists:

  1. The risk of investment-treaty claims. Under the Paris Agreement, States must each year implement measures towards the overall long-term objective of stabilization of the temperature; also known as the 2o C global temperature target. The means to maintain the average temperature increase well below 2o C are multiple and include, g., low carbon, no carbon, renewable energyand new building standards.

    These measures and changes in legislation may affect investments and lead to investment treaty claims by foreign investors. The measures may also create incentives for foreign investment such as when a State implements incentives on renewable energy. The arrival of foreign renewable energy firms may not please everyone and if the State subsequently takes a step back and imposes a moratorium on foreign investment, this policy change may constitute a breach of the doctrine of legitimate expectations and lead to a fair and equitable treatment claim by the foreign investor (subject to an applicable treaty). This was the case in the NAFTA case Windstream Energy LLC v. Government of Canada (PCA Case No. 2013-22, 27 September 2016).

  2. New contracts with ADR clauses. The obligations imposed upon States by the Paris Agreement and the 1997 Kyoto Protocol have led to new contracts, many of which contain ADR clauses. One example of this is an international emission system developed under the Kyoto Protocol, whereby parties that exceeded their emission reduction commitments may sell the excess so-called “assigned amount units” (AAUs). Disputes arising out of this system are resolved by arbitration under the Permanent Court of Arbitration (PCA)’s Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources (“Environmental Rules”).[1] For example, a dispute could arise in respect to a carbon emission registered project if, after the investor has invested, it turns out that the carbon credit was miscalculated, which could affect the value of the investment.
  3. Investment funds. Several investment funds are dedicated to climate change, including the Green Climate Fund (GCF). States, corporations and individuals who contribute to such a ‘green planet’ fund sign a contribution agreement with ADR clauses. In turn, the fund enters into contracts for its investments and these transactions contain arbitration clauses.

Data available to the panelists show that not all companies have reacted to climate change in the same manner. The measures required can be important and may give management the feeling that they are losing the agenda. The panelists praised certain companies, including CPR members in the oil & gas industry, for their efforts in lowering emissions from both their own operations as well as from the plants they operate on.

The entire panel agreed that climate-related disputes involve complex issues that ordinary state courts cannot deal with and require a very thoughtful and structured process.  In this context, mediation is here again an efficient solution able to address the specificities of climate-change cases, such as the need for a fast resolution, the political implications, the status of the parties (NGOs, multinationals, government), etc.

Climate change is one of the new fields to watch and learn about, for ADR practitioners.

Complex financing of dispute resolution

The last panel of the day was moderated by Mark McNeil (EAB member, Sherman & Sterling) and composed of two lawyers, Matthew Bate (Winston & Strawn) and Robert Wheal (White & Case), along with a representative of litigation finance and funding providers, Leeor Cohen (Burford Capital).

Starting with a short reminder of the origin of disputes financing, the panel then discussed the important aspects to consider when working with third party funders, the advantages and downsides of financing of claims, the impact on arbitration and the concept of portfolios of claims.

Initially, ADR financing was developed for parties who could afford the costs of “access to justice.” The concept has evolved and increased in many respects and all claimants now have the option to consider whether they wish their claim to be funded, insured, or otherwise monetarized. More and more well-financed companies use third party funders who have become a risk management tool, most particularly in so-called fee-shifting jurisdictions where court and arbitrators apply the loser-pays rule.

From the perspective of the lawyer trialing the case, the success of ADR financing depends on the good relationship with the funder; a good collaboration is important to avoid the risk that the funder withdraws its funding.

The rapid expansion of ADR financing testifies to its success. Yet, the panel identified potential downsides and risks associated with third party funding:

  • Financing of ADR is a complex world and the panelists described funding contracts as a “nightmare.” Getting to a funding contract also takes significant time and involves lengthy due diligence, questionnaires and the signing of NDAs. Third party beauty contests quickly multiply the work as funders have different approaches and hence different sets of questions.
  • The use of a party funder often limits the party’s ability to negotiate a settlement. By the time the parties reach a settlement, the funder will have spent money and will often want to be involved and approve any settlement amount. A so-called “waterfall provision,” according to which the funder gets first a portion of any settlement amount and the client receives something only if anything is left, impacts on settlement negotiation.
  • A funder may influence the conduct of the proceedings. Some funding agreements contain language reserving the funder’s right participate in decisions relating to the conduct of the proceedings, including with a right to agree to finance the case only as long as it is satisfied that it is worth pursuing. According to the panelists, this could translate negatively on the conduct of the proceedings and the claim must remain 100% with the claimant.

The financing of claims affects the arbitral proceedings in various ways. Respondents have sought disclosure of third party funding agreements, or applied for security for cost on the ground that the claimant’s need for funding suggests that it will not have the necessary funds to pay the costs of the arbitration if it is ordered to. Claimants have sought in their statement of costs recovery of funding costs, which the panelists confirmed, under most arbitration rules the arbitrators have the power to award.

Finally, the panel discussed the debated concept of portfolios of claims, i.e., the financing of multiple claims together. Under this structure, the funder calculates its return based on the performance of the entire portfolio and not each individual claim. Portfolio financing brings down the cost of financing by grouping several claims of a single claimant; it also secures the availability of financing throughout the proceedings. Several law firms have preferred to stay away from portfolios of claims and favor the financing of claims individually.

***

The European Advisory Board will share the date of 2019 CPR European Congress on Business Dispute Management within the coming months.

_____________________________________

[1]  https://pca-cpa.org/wp-content/uploads/sites/175/2016/01/Optional-Rules-for-Arbitration-of-Disputes-Relating-to-the-Environment-and_or-Natural-Resources.pdf ; see also, for more details: https://pca-cpa.org/en/services/arbitration-services/environmental-dispute-resolution/

Vanessa Alarcon Duvanel is a member of White & Case’s international arbitration group and is based in the firm’s Geneva office. She is also the Secretary of CPR’s European Advisory Board. She can be reached at vanessa.alarcon@whitecase.com.

 

A Report on the CPR European Congress on Business Dispute Management (Part I)

EU flagBy Vanessa Alarcón Duvanel

This is the second post of a new CPR Speaks feature, “The European View,” offering valuable insights and perspectives from CPR’s European Advisory Board (EAB).

On 31 May 2018, CPR held its annual European Congress on Business Dispute Management in London. Organized by CPR’s European Advisory Board (the “EAB”) and kindly hosted by SwissRe in the incredible Gherkin building, the event convened European and American practitioners for a successful day of discussion led by four interesting panels. 

This blog piece reports on the exchanges and discussions heard at the European Congress.  Summarizing this full day and four panels into one blog article would have deprived the readers of too many insightful views and ideas shared at the Congress. Therefore, we have split this reporting in two parts: a Part I sharing the morning panel sessions, and a Part II covering the afternoon panels.

The event kicked off with welcoming remarks by Maurice Kuitems, (EAB Chair, Fluor Corporation) and Olivier André (CPR), following by Elena Jelmini Cellerini, (EAB Member, SwissRe), and Nicola Parton (Swiss Re). Ms. Parton offered an inspiring message on the role of ADR and the importance of sustainable dispute resolution mechanisms, a goal that requires full respect of transparency principles and responsiveness to issues raised by our counterparts.

Make ADR great again! The in-house counsel’s perspective

Kenneth B. Reisenfeld (BakerHostetler) moderated the first panel of the day, which was exclusively composed of in-house counsels: James Cowan (CPR EAB Member, Shell International Ltd); Noah J. Hanft (CPR); Isabelle Robinet-Muguet (EAB Vice-Chair, Orange); and Gill Mansfield (Media Law Services).

The first question put to the panelists was whether there was a past renaissance about ADR, or has the ADR process gotten off track. The industry has come a long way since its early years. Many concepts have developed and there are now growing concerns that arbitration is not fulfilling its promises of being fast, confidential and efficient. These criticisms are legitimate and impossible to ignore in light of the high costs and duration of certain arbitral proceedings or the inclusion of U.S.-style disclosures in arbitral proceedings.

There is consequently a real need to make ADR great again, and to find business solutions to business disputes. The panel shared the in-house perspective on some of the means to improve the ADR process:

  1. Involving the business people

All speakers agreed that involving their colleagues from the “business side” is certainly not an easy step, yet it is important and a critical task of the legal department. When a dispute arises, the company’s business does not freeze and the project team has little time to devote to a dispute. The business team’s approach to the dispute will be different from that of the litigators and their early involvement can help define the ADR process in a more business sensitive manner, as opposed to a pure litigation proceeding.

Achieving adequate collaboration from the business people in a dispute requires a cultural environment sensitive to ADR and its benefits. This is only possible with sufficient trainings and an overall commitment of the management to ADR.  As the panelists phrased it several times, the business people must be able to understand the “importance of taking ownership of the matter.”

  1. Early case assessment (ECA)

For the panel, an early case assessment (ECA) is a critical element to any dispute resolution mechanism. It should be the first step in any dispute and is fundamental to understanding the business needs. A good ECA will serve in many ways: it will help shape the ADR process; guide the relationship with outside counsel; and highlight the skills and expertise to look for in the designation of a mediator or arbitrator, or in the selection of experts.

  1. Mediation

According to the panel, using mediation and appointing a commercially minded neutral can improve the efficiency of the dispute resolution mechanism. The financial savings can be significant, particularly in cases where the appointment of a neutral with relevant skills allows the parties to negotiate entirely (or partially) without having to involve outside counsel.

  1. Multi-tier / Step dispute resolution clauses

The speakers briefly touched upon multi-tier dispute resolution clauses, whereby in case of a dispute the parties undertake to take certain steps prior to commencing arbitration in an attempt to amicably settle the dispute. Some of the panelists view such clauses as a thoughtful way of bringing mediation into the process early, and a means to facilitate the involvement of the business people. Other panelists do not consider mandatory mediation as an efficient tool. Every dispute is different and settlement negotiations and/or mediation may sometimes be more appropriate at a later stage. An ADR-friendly corporate culture should also render multi-tier clauses unnecessary.

  1. Diversity

All panelists concurred that a lot of work has been done but so much remains to be accomplished in order to bring more diversity to the ADR process—particularly with respect to age and geographical location. From the panel’s perspective, the in-house counsels have a central role to play in this issue. They can, for example, ask the lawyers to “dig deeper” and present new names on the list of arbitrators, to encourage new appointments, which in turn will contribute to broadening the existing pool of experienced arbitrators for large and complex commercial disputes and will consequently increase the efficiency of arbitral proceedings.

The Progress and impact of the European Directive on mediation: Where do we stand and what’s next?

The panel was composed of mediation experts from various European horizons: Alexander Oddy (EAB Member, Herbert Smith Freehills) who served as moderator; Vanja Bilić, PhD (Ministry of Justice of the Republic of Croatia); Professor Pablo Cortés (Leicester Law School, University of Leicester; Martin Brink, PhD (Van Benthem & Keulen); Ivana Gabrić (Končar – Electrical Industry, Inc.); and Tsisana Shamlikashvili (President, Russian National organization of Mediators, Founder of the Center for Mediation and Law, Head of Federal Institute of Mediation).

The European Union has enacted two “mediation” directives, namely: (1) the “European Directive 2005/52/EC on the facilitation and access to ADR and the promotion of amicable settlement” (the “EU Directive on mediation”), following which some member States have amended their domestic rules to impose mediation prior to litigation; and (2) the “Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes” (the “Consumer Directive on ADR”) which imposes mandatory mediation to all businesses with consumers.

The panelists extended the scope of their discussion beyond its title and the impact of the EU Directive on mediation to include private initiatives taken by corporations to impose mandatory mediation, independently from legislation.

Both the European Mediation Directive and the Consumer Directive on ADR have had a positive impact on ADR.  There is, however, still room for improvement. As with any major change, it will take time. All speakers agreed that improving the use of mediation requires increasing awareness of the benefits of mediation. The potential to save money and time and to salvage the business relationship is significant with mediation, and users need more knowledge of these advantages. One avenue mentioned by different speakers to raise awareness about mediation consists of allowing the management to witness a mediation proceeding in order to understand concretely how it works and how it deploys its benefits for the company.

Ivana Gabrić shared Končar’s success story of imposing mandatory mediation. In 2005, unrelated to any legislative action, the company decided to introduce a mandatory mediation policy for all of its contracts. Within a few years, the policy led to the elimination of all court litigation. Today, Končar has no pending litigations. In light of the success, the management extended the policy to labor disputes.

The EU Mediation Directive also triggered changes beyond the borders of the EU, such as in Russia where—Tsisana Shamlikashvili reported—mediation represents a big cultural change. In a country where courts are very busy and obtaining a judgment has become part of the ordinary business (regardless of the time it takes and any ability to enforce upon such judgement), introducing mediation is equivalent to changing mentalities and requires significant effort. But, the progress is on-going and the efforts deployed to convince the users of the benefits of mediation are starting to pay off.

Stay tuned for part II reporting on the panels discussing “Climate change and ADR” and “Complex financing of ADR.”

 

Vanessa Alarcon Duvanel is a member of White & Case’s international arbitration group and is based in the firm’s Geneva office. She is also the Secretary of CPR’s European Advisory Board. She can be reached at vanessa.alarcon@whitecase.com.

 

How to Tank a Mediation Without Even Trying

By James P.S. Leshaw

LeshawEvery so often, you may want to tank a mediation. Maybe you know in advance it can’t settle. Maybe the blood is so bad between lawyers or clients that you just want to teach a lesson to the other side.  It could be that you think the judge or arbitrator is really enjoying all of the discovery disputes or doesn’t have enough to do. Whatever the reason, based on my experience as a mediator, here are the top ten ways to blow a mediation (as well as some light reading).

  1. Promise your client (preferably in writing) that there is no way he can lose at trial. Also, be sure to under-estimate the cost of the litigation both in terms of the cost of fees and expenses as well as the client’s expected time-commitment and anticipated loss of sleep. This should sufficiently reduce the client’s incentive to settle at mediation.
  2. Do not submit a mediation statement to either the mediator or the other side. The reality is that the mediation statement serves very little purpose other than to educate the mediator and the other side to the strengths of your case. If you do decide to deliver a mediation statement anyway, consider using it as an opportunity to educate the mediator on how unreasonable the other side is (though this should be obvious to any experienced mediator as the other side has not yet caved to your demands). You may also choose to inundate the mediator and other side with copies of pleadings you have already filed in the case, with no explanation as to their relevance.
  3. Do not personally attend the mediation – your attendance might send the message that you are serious about settling. Instead, send a junior associate who has had little or no involvement with the litigation, who does not know the factual or legal issues and who does not have the confidence or trust  of the client. This will help to ensure that the mediation is not successful.
  4. Be efficient when preparing for the mediation (assuming you decide to attend). Do not focus on the law or the facts – the other side must already be familiar with these or be too dense to understand your version of the law or the facts. Focus on the important stuff like making the mediation personal.  Be prepared to embarrass opposing counsel by talking about their procedural gaffes in this case or their losses in other cases. This is really just constructive criticism.
  5. Do not make an opening statement at the mediation – simply state that your position is already clear. Should you decide to make an opening statement, be sure to point out how unreasonable the other side has been for not simply giving in, explain you are not prepared to compromise in any way, but have a “take it or leave it” offer. Also, don’t forget to remind the other side and the mediator that you have scheduled only one hour for the mediation because you need to be back at your office to take a phone call.
  6. Do not bring your client to the mediation. Instead tell the other side that the client is available by telephone or that you already have settlement authority. Should your client inconveniently decide to show up at the mediation, make sure he does not participate in the mediation. You’re being paid to attend the mediation so you should respond to any questions or comments made to your client by the mediator or the other side. This is your case after all.
  7. If your client is the defendant, cry poverty but do not provide any financial information to support the claim.
  8. Do not admit that your case has any weaknesses at all, including in a private session with the mediator. So long as you bury your head in the sand, neither the mediator nor the other side will realize there is a potential chink in your client’s armor.
  9. Yell, scream and pound on the table so everyone in the room knows you really mean what you are saying.
  10. If it looks like the case may settle despite your best efforts, be prepared to pack your bag and leave. The best exit is a dramatic exit.

About Jim Leshaw:

Jim Leshaw is a mediator and arbitrator based in Miami and Key Biscayne, Florida.  He handles a wide variety of commercial disputes throughout the United States, Latin America and Europe.  He also sits on the board of directors of Avianca Holdings, S.A. (NYSE:  AVH), the Latin American based airline. He can be reached at Jim@LeshawLaw.com.

This post originally appeared in Law360, and was republished with permission.

THE MASTER MEDIATORS/ Part I: On Joint Sessions

mastermediators

One of the panels at CPR’s recent annual meeting in Atlanta featured three master mediators: Eric D. Green, of Resolutions, LLC; Hon. Layn R. Phillips, Phillips ADR; and Linda R. Singer, Esq., a JAMS and CPR Neutral.

Guided by moderator Jana Litsey, Senior Executive Vice President and General Counsel and Secretary of The Huntington National Bank, our panelists shared views and best practice tips on the ADR process they know so well. This post, the first in a series, will focus on the almost curiously controversial topic of joint sessions.

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“We call it the disappearing joint session,” said Eric Green. “As all parts of a mediation are potentially valuable, I think the trend away from the joint session is a big loss, reflecting a misunderstanding of its potential and use and value. Of course, there are no rules in mediation except that there are no rules in mediation. Every case is different.”

Green noted that lawyers will typically insist no joint session is needed and would in fact be a waste of time—especially if they have him only for one day—because the case is mature and well known to both sides. While he agreed that those would be potential negatives, he has observed over time that the parties rarely in fact understand each other’s cases. Joint sessions have the potential to begin to close that gap.

“When you think about it,” he explained, “the joint session is your best and last opportunity to speak directly to other side. They are your audience and, to have a successful outcome, you must get them to agree to something you will accept. Assuming the session has been properly prepared—with private telephone calls between you and the mediator ahead of time, and with mediation statements exchanged—this is the start of a day’s worth of negotiation and your chance to get your message across to the other side (hopefully someone with real authority). This is your opportunity to establish a connection, demonstrate that you are prepared to be reasonable if they are, and to address the strongest arguments in the other side’s mediation statement.”

Joint sessions also serve an important purpose for the mediator, Green stressed. “If I need to say something to the other side at 5 p.m., I really want you to have said it at 9 a.m. so I can tie my message back to yours. It gives me a mechanism to deliver what is sometimes tough feedback to the other side by deflecting some of it, which can be very helpful.”

Green cautioned, “This is not an opportunity for you to get some emotional satisfaction by beating up on the other side. So don’t waste your time repeating your strongest points or engaging in threats or bombast. Don’t try to stand up and impress your client. And don’t try to impress the mediator—they are not the judge and jury.”

Green summed up, “No one has ever stood up in joint session, like in Perry Mason, and said, ‘I get it now, I’m guilty. I’ll withdraw my case.’ But it starts the process of people beginning to understand risk and see things from the other side’s perspective.”

Jana

JAMS and CPR Neutral, Linda R. Singer, described what she sees as a clear regional split, with colleagues on the West Coast coming down on the side of never seeming to utilize the joint session process, with East Coast colleagues being much more open to it.

“Some judge mediators are unaccustomed to managing conflict,” Singer surmised. “It makes them nervous.” But she agreed that the joint session process can be a real opportunity. “The hardest thing,” she described, “is when I convene a conference call and they tell me they’ve all agreed and don’t need a joint session, because it’ll take us until after lunch to get back to where we are in the process now, but then at 4 pm in the afternoon we are still saying the same things we were saying at the start of the day.”

Our third panelist, Layn Phillips, of Phillips ADR, was less enthusiastic about joint sessions than his colleagues. He tends to advocate for shared or exchanged mediation briefs and reply submissions, he explained, and holds the view that mediators mainly earn their money in private caucus sessions. But he did agree that there were circumstances (e.g., in some securities cases) where the joint session, or what he likes to call the “targeted session,” is helpful on topics like damages.

“You might have 25-page opening submissions and several reply briefs,” Phillips explained, “but only three paragraphs dealing with damages, so it would not be uncommon for me in this situation to tell the parties I wanted a focused targeted joint session on damages. This may not necessarily be an opening joint session, but one which could take place later in the day.”

Another example might be if a case is very close to trial. Sometimes this can be a helpful reality check for the clients. “Much depends on your client representatives,” Phillips added. “If they are very sophisticated and prepared, and you’re convinced from pre-mediation submissions and calls that they know the case, having them sit there while a very talented trial lawyer takes their case apart is not necessarily helpful.”

“As everyone here knows,” Phillips summed up, “we’ve all been to joint sessions that are incendiary, or that cover ground that is not only well ploughed but well fertilized, so I try to be very focused on when and under what circumstances I recommend this process.”

Eric Green reported also finding joint sessions to be useful when there are complex technical issues, such as those arising in construction, design or financial cases. In fact, while this is unusual, he reported having a joint session last as long as a week in a case involving technical exchanges involving nuclear plants. “If the parties are insisting on a principles-based and merit-based approach to resolution,” he concluded, “joint sessions can provide an opportunity to demonstrate that you’ve heard the merits of the case. Then the parties can start discussing dollar amounts.”

Layn Phillips provided the final word on this topic, noting that it is not uncommon for him to hold joint sessions late in the day, particularly on non-monetary terms. “The last thing you want to do is to have a quiet, dignified search for a number, and then find out that the parties disagree on fundamental terms such as indemnification or non-monetary points that will turn out to have monetary value.”

Stay tuned to CPR Speaks for more tips from our master mediators, and more great content from AM18…

 

CPR Releases New Mediation Best Practices Guide for In-House Counsel

By Erin Gleason Alvarez and Rick Richardson

As co-chairs of the Mediation Committee, we are pleased to announce the release of the Mediation Best Practices Guide for In-house Counsel: Make Mediation Work for You.  The Guide will be launched as part of the CPR Institute Annual Meeting in Atlanta from March 8 through 10, 2018.

Make Mediation Work for You was inspired by conversations among in-house counsel that have arisen in the Committee.  What is the best way to convince counterparties that mediating early is a good thing?  How do you best prepare for mediation?  Should you always accept a counterparties’ suggestion on the mediator?  What is the best way to keep negotiations going if the mediation concludes without settlement?

The Guide answers all of these questions and includes insider tips from in-house counsel throughout.  Make Mediation Work for You begins with a discussion on when to contemplate mediation and then takes the in-house reader though every step in the process: from convening the process and making negotiations plans before the in-person session to creative solutions for overcoming impasse and structuring a settlement agreement.

Make Mediation Work for You will undoubtedly be a valuable resource for CPR members.  We are grateful to the Mediation Committee members for their efforts in creating this important guide, most notably John Bickerman, David Brodsky, David Burt, Steve Comen, Steve Gilbert, Duncan MacKay, Chris Mason, Judy Meyer, Meef Moh, and Mike Timmons.

We look forward to seeing many of you at the Annual Meeting next week!

 

Erin Gleason Alvarez and Rick Richardson co-chair the CPR Mediation Committee.  Rick serves as Vice President and Associate General Counsel, Dispute Resolution and Prevention for GSK.  Erin is the former Global Head of ADR Program for AIG; she now has her own mediation and arbitration practice and is a member of the CPR Panel of Distinguished Neutrals