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

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

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

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

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

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

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

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

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

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

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

2. Who is your dispute resolution hero/heroine?

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

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

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

4. Were you ever the first in doing something?

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

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

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

5. What makes your conflict resolution style unique?

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

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

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

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

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

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

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

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

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

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

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

9. Some specific topics:

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

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

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

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

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

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

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

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

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

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

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

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

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

12. In your view, what makes CPR unique?

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

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

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

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

Meet CPR’s Appellate Panel: Hon. Christopher Droney

Hon. Christopher Droney

Periodically, CPR showcases various members of our Distinguished Panel of Neutrals. We are pleased to introduce a new feature, “Meet CPR’s Appellate Panel,” and begin with this interview with Judge Christopher Droney, of Day Pitney LLP.

Droney is a former Judge for the United States Court of Appeals for the Second Circuit and the United States District Court for the District of Connecticut, as well as the former United States Attorney for the District of Connecticut. As a federal court of appeals and district judge, he presided over many trials and appeals in all matters that come before the federal courts, including intellectual property, unfair trade practices, employment discrimination, class actions, securities matters, commercial matters, antitrust, technology, insurance and corporate disputes.

A member of faculty for the National Advocacy Center, he taught at the Yale Law School and the University of Connecticut School of Law in trial and appellate courses. As U.S. Attorney, he was a member of Attorney General’s Advisory Committee of U.S. Attorneys and co-chair of its Civil Issues Subcommittee. He is also a member of the Committee of the U.S. Judicial Conference on the Administration of the United States Bankruptcy System and the Board of Directors of Federal Judges Association.

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

I got my start as a neutral fairly recently when I retired from the federal bench at the end of 2019.  However, before that I was a federal trial judge for fourteen years and a federal appeals judge for eight years.  In those positions I gained a great deal of experience in resolving disputes in so many different areas, whether it be commercial, trade secret, employment, antitrust, civil rights, class actions, securities and others.  I believe my time on the trial bench and the appellate bench combine for a rare insight into how to arrive at solutions for much-disputed matters and how to assess different sides of matters.  That experience also helps in seeing the essence of disputes and the best ways of drilling down on issues.

Q. Do you have any general words of wisdom for parties entering into deals and contracts, when it comes to anticipating future disputes and the right to appeal?

It is very often that the dispute resolution provisions of an agreement get little attention at the time the transaction is completed.  That is understandable as the parties typically expect success in all aspects of their relationship.  It is a mistake, however, to not give sufficient care in crafting those provisions and making them as specific as possible, especially as to the venue for resolving differences, the choice of law, the arbitral forum, etc.  In the unlikely event of the need for those provisions, at least the parameters of how to resolve the disagreement will be clear, and making headway in resolving substantive issues will be more timely.

Q. What makes your style of conflict resolution in the appellate context unique? How is it different from dispute resolution, pre-appeal? Do you have a particular philosophy or approach?

My experience on the Second Circuit is especially helpful.  I had eight years of dealing with complex issues in many different substantive areas and in attempting to achieve a common resolution with other judges.  I also gained a great deal of experience in becoming a “quick study” in very technical and complicated matters.  My experience in the district court helped greatly in being able to understand a variety of trial dockets and the procedures for resolving disputes, including practice rules and evidence.

Q. Which types of conflicts would you recommend for ADR and why?

Most business disputes lend themselves to ADR resolution as it is swifter than litigation, fair and thorough.  Perhaps technical areas are particularly well-suited to ADR resolution as the parties can select arbitrators or mediators who have background or experience in the particular area.  That is not always true in litigation.

Q. How can parties help to ensure progress when they reach an impasse?

If the parties reach an impasse, the best advice is to have an open mind about a creative solution.  Lawyers often are so close to their cases that they sometimes lose perspective and are not as open-minded as they could be. That is where the neutral comes in:  to offer solutions that perhaps counsel would not come up with on their own and to explain the positive aspects to all sides.

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

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

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

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

2. Who is your dispute resolution hero/heroine?

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

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

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

4.   Were you ever the first in doing something?

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

5. What makes your conflict resolution style unique?

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

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

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

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

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

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

Pleading their case rather than adopting a less adversarial style.

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

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

9.   Some specific topics:

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

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

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

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

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

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

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

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

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

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

12. In your view, what makes CPR unique?

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

CPR = energy + information + sharing + adaptability

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

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

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

The CPR European Advisory Board Presents: “Meet CPR Distinguished Neutrals Based in Europe: Piotr Nowaczyk”

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

Piotr is based in Warsaw.  In addition to being a CPR Distinguished Neutral, he is a chartered arbitrator, advocate, the former president of the Court of Arbitration at the Polish Chamber of Commerce, a former member of the ICC International Court of Arbitration and a member of the VIAC Advisory Board. https://whoswholegal.com/piotr-nowaczyk

How did you get your start as a neutral?

In 1998 I was included on the roster of VIAC arbitrators and at around the same time I was appointed by the Court of Arbitration at the Polish Chamber of Commerce and recommended by the ICC Polish National Committee.  I believe my background as an ex-judge, advocate admitted in Poznan, Paris and Warsaw, partner at Salans (legacy firm of Dentons) and polyglot with an international background was helpful and has led to over 350 arbitration appointments in the last 20 years.

Who is your dispute resolution hero/heroine?

Pierre Karrer, Robert Briner and Eric Schwartz. 

Starting with the youngest (Eric Schwartz):  In 1991 I came to Paris, having been invited as a visiting lawyer by the Law Offices of S.G. Archibald.  Eric Schwartz was leading the arbitration practice there, together with Sarah François-Poncet.  He was an arbitrator in the dispute over the Egyptian Assuan Dam.  For me, a newcomer from Poland, it was my first introduction to a large-scale arbitration.  Later, our paths crossed many times.  Eric became Secretary General of the ICC Court of International Arbitration.  He wrote, together with Yves Derains, a Commentary on the ICC Rules of Arbitration.  About 12 years later I became a member of the ICC Court.  Eric became a partner at Salans Herzfeld & Heilbronn, where I was also a partner.  I organized his meetings and lectures in Warsaw.  To this day, I admire his calmness and composure.  He always speaks quietly and calmly about the most difficult matters.

Pierre Karrer was my favorite colleague among the members of the ICC Arbitration Court.  We usually sat side by side around the oval table at the court’s monthly plenary sessions.  I admired his comments on draft awards.  They were always light, accurate, often witty, and at the same time positive, even if critical.  We served as arbitrators on a few occasions and he gave me some practical advice.  For example, he advised me to separate the parties’ submissions.  He put the claimant’s submissions into the green file (“because, as at the pedestrian crossing, the claimant always wants to go forward”), and the respondent’s submissions into the red file (“because the respondent usually tries to stop the proceedings”).  The papers produced by the arbitral tribunal and the arbitral institution he assembled in a yellow binder.  In his house, he showed me specially designed shelves on wheels.  Each of them contained binders of documents regarding a particular case.  He moved them easily across the floor.  The files were bound in soft binders (“because they don’t damage the inside of the traveling suitcase”).  He gave me a lot of good advice. He said, “Piotr, if I have one dollar and I give it to you, it will be your dollar, not mine anymore. However, if I give you an idea or give you a thought, it will be mine and your thought, mine and your idea”.  He shared countless ideas and thoughts with me.  His famous multilingual Glossary of Arbitration and ADR was developed and expanded in Warsaw to include arbitration terminology in Czech, Polish and Russian.  It was my idea, his idea, our idea, my thought, his thought, or our common thought.

Robert Briner was the President of the ICC Court when I became a court member for Poland. He was one of the giants of international arbitration, a man of slightly old-fashioned ways, a gentleman always holding fast to his principles.  His three full terms of office making nine full years as president of the world’s biggest court of arbitration had left an indelible stamp on this institution.  He was an elegant, distinguished man, sparing in word and gesture.  He was ready to advise anyone who asked for his advice, in the simplest way possible, discreetly and briefly, sometimes in one sentence.  When the Polish National Committee put forward my candidacy for the ICC Court membership, I asked Robert Briner what he thought of it.  He looked me in the eye and asked: “Why hesitate?”  It’s difficult to forget that conversation which took place many years ago in a very unusual setting. We were both watching a pair of koalas in an Australian eucalyptus wood during a break at the annual congress of the Union Internationale des Avocats.

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

It is not easy to start out as an arbitrator.

Arbitrators are late starters.  At first, you have to establish yourself as a barrister, solicitor, judge, academic, diplomat, businessman, politician or expert.  So, it is only later in life that you would typically become an arbitrator.  Young legal eagles tend to champ at the bit, eager to get their first case.  A rude awaking often comes at the first interview when they have to field these brutal questions: “How often have you acted as arbitrator?” “How many awards have you made?” “What is your experience with arbitration?

The young hopefuls are stumped for an answer.  Imagine a patient asking a budding orthopedic surgeon eager to perform his first knee operation: “How many knee operations have you conducted, doctor?”  If the flustered doctor says, “Not even one, but I’d love to make a start,” the patient will go to see a real specialist, preferably one with more than 100 knee operations to his name.

There is no clear recommendation on how to get the first appointment.  David Rockefeller published the book “How to make a million dollars”.  In the preface he stated: “from this book you will learn how to make the second, the third or the fourth million…”.  I would rather not mention his advice on how to get the first million!  Young people are often attracted to arbitration because it offers the opportunity to publish articles, go to conferences and take part in the Vis Moot.  Many of the famous arbitral institutions sell modular training courses scaling up from introductory to advanced, from domestic to international and so on.  I would caution aspiring young arbitrators, completion of such courses does not necessarily mean that appointments will automatically follow.  Young lawyers can include an arbitration clause in every contract drafted and act as a counsel or administrative secretary.  One day, someone will offer an appointment as an arbitrator.  Currently, we have more participants in arbitration conferences than there are arbitration cases on this continent.  Telling young people “under 40” that they are well prepared and will replace us all one day is only partly true.  Parties still prefer experienced arbitrators who have earned their reputation with years of impeccable professional activity.  The patient prefers an experienced surgeon, not a young one, who is eager for the first surgery in his life.

Were you ever the first in doing something?

Yes, I was the first Polish advocate admitted to the Paris Bar back in 1993.

What makes your conflict resolution style unique?

I would like to think it is my intuition.

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

Initiating disciplinary proceedings against three young counsels who were intent on seizing my personal bank account to cover their fees in case they lost the arbitration case.

The counsel were defending the family business of one of them.  I was an arbitrator nominated by the claimant.  From the beginning, the counsel treated me as their number one enemy.  They also tried to seize the chairman’s bank account.  We learned about their activities in the middle of the proceedings.  At the hearing, we informed the claimant because we were concerned that doubts may be raised as to our impartiality and independence.  We completed the arbitration and passed a fair award, mostly in favor of these rogues.  We initiated disciplinary proceedings immediately after the award was delivered.  It lasted 5 years and resulted in discontinuation due to the statute of limitations.  The young counsel made friends with the dean of the local bar council. They became his friends and helpers, to the point of becoming members of the local bar council.  They became almost untouchable.  Time went by, and the bar members, including the dean, acting as disciplinary prosecutors dragged out the proceedings to such an extent that the claim ultimately became time barred.

What is the most important mistake you see counsel make?

Typically, they file too many documents and charge too many billable hours!

Now let’s turn to some specific topics:

  1. What is your view on the duration of arbitration proceedings?

Arbitration is like a pregnancy.  It should not be aborted or last longer than 9 months.  Every dispute can be managed within 9 months. It all depends on the energy, proactivity, devotion and dedication of the arbitral tribunal.  One of our roles is to combat delays provoked by counsel.  Unfortunately, counsel want to have as much time (billable) as possible and produce endlessly long submissions.  Counsel for the conflicting parties are able to agree on a highly extended provisional timetable, and then want to impose it on the arbitral tribunal.  Weak arbitrators spread their hands and say: “It is the parties who are the hosts of the dispute. We have to accept their joint proposal”.  I ask the co-arbitrators then: “If they are the hosts, then who the hell are we, the arbitrators? Guests?”

2. With respect to the taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?

Prague Rules are much simpler and tailor made for Eastern and Central Europe.

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

The big problem is arbitrators’ safety.  It is time to think about arbitrators’ immunity and an international convention to grant it.

For which types of conflicts would you recommend ADR?

I think you can use ADR for all types of conflicts, with very few local exceptions.

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Fatos Lazimi”

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

Fatos is a partner at Optima Legal and Financial based in Tirana, Albania.  He is an expert in international arbitration law and has participated in several international arbitration cases.  He is also a member of the ICC Court of Arbitration in Paris. Please see http://optimalaw.al/2016/11/03/fatos-lazimi/

 

How did you get your start as a neutral?

It all began back in 2015 when I was a party appointed arbitrator in a domestic case and at about the same time I was handling an ICC FIDC based case.  I was appointed as an Arbitrator by a well known company based in Albania but with foreign control.  The case was very complex as it dealt with a commercial transaction in the mining industry with a State party.  The proceedings lasted longer than expected due to the involvement of many accountant experts and witnesses of facts.

Who is your dispute resolution hero/heroine?It is very hard to pick just one hero or heroine in the dispute resolution arena, but I am deeply inspired by three esteemed gentlemen arbitrators:

  • Sigvard Jarvin
  • G. Bunny
  • Christofer C. Seppala

Sigvard Jarvin: I have been lucky to be local counsel in proceedings where Mr. Jarvin was an Arbitrator (mainly FIDIC Contract based disputes).  He is extremely skilled in the management of proceedings and he demonstrates an insightful analysis of the cases before him.  His patience and thoughtfulness are very impressive.

Nal G.Bunny: I have not been so lucky to be involved in proceedings where Mr. Bunny has served as an Arbitrator but I have admired him from a distance.  He has an encyclopedic knowledge of FIDIC contracts and his Awards – which I have been able to examine – are always well reasoned.

Christofer C. Seppala: I have been honored and privileged to be in close contact with Mr. Seppala while being Member of ICC Court of Arbitration in Paris.  On the one hand, he could be characterized without any hesitation as a mentor of interpretation and implementation of ICC Rules.  On the other hand, he is an excellent and unique interpreter of FIDIC concepts which are mirrored in many ICC FIDIC based cases. 

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

They must recognize that they have to live with their cases so they must make their best professional endeavors to ensure the legal process is full of integrity, independence and impartiality.

What makes your conflict resolution style unique?

I encourage the parties in dispute to try and find the things they have in common and I insist on this as part of the process.

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

Probably having to consider and then make a decision on a procedural issue which was requested by one party after the proceedings were declared closed.  I remember a case where the Claimant asked that the proceedings be reopened more than a year and a half after they were declared closed.  It was a very difficult decision to make because the circumstances which triggered the request to reopen were rather exceptional.  In particular, evidence had come to light but for state reasons it was classified as highly confidential.  The particular difficulty I was faced with was a lack of applicable legislation covering the confidentiality matters and their reflection in arbitration proceedings.

What is the most important mistake you see counsel make?

Devising dilatory tactics and unethical conduct.  I have witnessed  cases where the parties’ counsels engage in dilatory tactics.  For example, filing numerous applications seeking permission to postpone decision making and deferring the time for making a draft award.  I view these strategies as harmful for the parties which counsel represents and for the proceedings in their entirety.  They have the potential to undermine a party’s position in the eyes of the Tribunal and this may prompt the latter to make adverse inferences.  In the long run, such delay tactics decrease the advantages of arbitration as a method for resolving disputes

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

Adoption and enforcement of strong conflict rules, i.e. procedural controls on appointments so that the parties do not abuse the right to nominate arbitrators.

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

Data protection and cyber risks are becoming more and more important aspects in administration of arbitration proceedings.  I would support a revision of the various institutional rules e.g. ICC, ICSID, LCIA etc. so that they address these issues in stronger terms and impose penalties for breach of the applicable data protection rules.

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

Yes.  It is very important in terms of efficiency of the arbitration proceedings to identify the potential areas of dispute, in particular, those which are fundamental to the whole process, like jurisdiction matters, validity of arbitration agreements, bifurcation of proceedings on liability and quantum etc.

With respect to the taking of evidence in arbitration: are you IBA Rules or Prague Rules?  And why?

Given my professional background and personality I support a more proactive approach in administration of arbitration proceedings and I would therefore opt for the Prague Rules.

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

Extending arbitration to disputes arising from the Belt & Road Initiative.  This initiative is likely to spawn many disputes and ADR could be beneficially deployed.

For which types of conflicts would you recommend ADR?

If I had to pick one, I would say labor disputes.

In your view, what makes CPR unique?

Its philosophy and policy of conducting disputes.  I think CPR has unrivalled experience in procedural approaches and adopting final workable solutions.

Do you have an anecdote you would like to share?

Arbitration is the key but not the open door.

Invitation for an Open Dialogue

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

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

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

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

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

bart

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

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

How did you get your start as a neutral?

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

Who is your dispute resolution hero/heroine?

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

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

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

Were you ever the first in doing something?

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

What makes your conflict resolution style unique?

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

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

Mediating between two very stubborn 88 year old shareholders!

What is the most important mistake you see counsel make?

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

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

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

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

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

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

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

For which types of conflicts would you recommend ADR?

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

In your view, what makes CPR unique?

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

Do you have an anecdote you would like to share?

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

10 Reasons Arbitration Beats Traditional Litigation

Janice_NewBy Janice L. Sperow

  1. Faster

Parties usually get to hearing within a year of filing and even quicker for simpler and expedited disputes whereas a court case will often wend its way through the system for two to five years before trial depending on the jurisdiction. Now add the backlog of closed courts, reduced public funding, criminal case priority, and pandemic-related lawsuits, and arbitration becomes significantly quicker than the court system. Even the decision-making process can be swifter. Most arbitrators render an award within thirty days of closing the hearing, whereas an overworked judge or appellate court may require months to issue a final decision. Traditional litigation’s delay becomes even more troubling when the parties consider the ticking of the pre or post judgment interest clock.

  1. Flexibility

Parties can schedule discovery, c10 Reasons Arbitration Beats Traditional Litigationonferences, deadlines, motion practice, and hearings around their schedule, not the beleaguered, overcrowded court docket. Most arbitrators will accommodate scheduling conflicts and personal plans, whereas the courts expect the parties to work around their calendars. Parties can also narrow the scope of the issues presented to the arbitrator for resolution without the need for a summary adjudication process.

  1. Confidentiality

Parties can ensure confidentiality. Only participants can attend the arbitration because the proceedings remain private unlike traditional litigation open to the public. Even the arbitration filings remain private while anyone can access court filings. Parties may also like the non-precedent setting nature of arbitration, especially if they have similar cases coming behind this dispute.

  1. Affordable

Faster hearings mean lower costs. Instead of the litigation expense mounting over years of protracted conflict, the parties can curtail the amount of discovery, conferences, motion practice, and time to hearing and thereby significantly reduce their attorneys’ fees and costs.

  1. Choice

Parties typically select their arbitrator. They agree upon the decisionmaker of their choice instead of the random assignment of a court judge or the jury pool in traditional litigation.

  1. Expertise

Parties can also choose an arbitrator with specific subject matter expertise, skill, or experience. Especially in highly technical cases, the parties can save a lot of time, expense, and effort when their jurist already understands the landscape. Some parties choose to forgo expert testimony because, unlike the jury, the arbitrator has the specialized knowledge to follow the presentation of evidence without an expert’s explanation.

  1. Simpler

Parties can schedule a quick call with the arbitrator to settle a discovery dispute or email a subpoena request; they do not have to file a costly motion with proper notice. Most arbitrators relax the rules of evidence and eliminate burdensome procedures.

  1. More Predictable

As every seasoned litigator knows, no one can predict how a jury will decide. Arbitrators, however, pride themselves on following the law, applying it to the facts, and eschewing emotional appeals. They remain far less susceptible to sympathy than a jury.

  1. Control

Parties can control the arbitration process either through their arbitration contract or by post-dispute agreement. They decide how much discovery to afford, what law will apply, which procedural rules will apply, where the dispute will be heard, how the dispute will be heard – in person, video conference, telephonic, or documentary – and much more. The arbitrator will implement the parties’ choices as long as they agree. In fact, the parties can amend, modify, or reject most arbitral rules of the forum if they want.

  1. Finality

Parties can only appeal arbitration awards on limited grounds. Accordingly, they can put their dispute to rest and get back to business quicker, faster, and cheaper – something we all want to do as soon as the pandemic permits.

________________________

Janice Sperow is a full-time arbitrator and mediator. She serves as a neutral for the San Diego Superior Court (where she also sits as a Judge Pro Tem), American Arbitration Association, the International Institute for Conflict Prevention & Resolution, the Financial Industry Neutral Regulatory Authority, the World Intellectual Property Organization, the National Futures Association, and the Better Business Bureau. www.janicesperow.com

 

 

 

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

The CPR European Advisory Board presents: “Meet CPR Distinguished Neutrals Based in Europe: Mauro Rubino Sammartano

183The CPR European Advisory Board (EAB) continues it series “meet CPR’s Distinguished Neutrals in Europe” and today it presents its third Q&A with Mauro Rubino Sammartano.

Mauro Rubino Sammartano (pictured) is a partner in the Italian law firm Law Fed based in Milano.  Mauro sits as an arbitrator in commercial and investment arbitrations. His wide experience includes advocacy in Italy and in Paris, being an associate tenant of a London set of Chambers for many years, and a Recorder and Deputy Judge in Italy.  He has been involved in arbitration for about 30 years more recently, in mediation.  Mauro is also chair of the European Court of Arbitration and the Mediation Centre of Europe, the Mediterranean and the Middle East.  He lectures on arbitration and mediation and is the author of several textbooks and articles on topics of international arbitration.

Mauro kindly agreed to grant us an interview for the third blog piece of our series profiling CPR Neutrals in Europe.  Here are his insights:

How did you get your start as a neutral?

I have come to arbitration by acting as counsel in large international construction projects. I enjoyed arbitration and started studying it. I had been involved in construction matters for some time when I received my first appointment as arbitrator in a construction dispute.   I really liked it; I saw similarities with my prior activities as Recorder and then as a Deputy Judge in Italy.

Dealing with ADR, I realized that the top priority for litigants is to avoid or at least to narrow the scope of a litigation. I therefore started to deepen my knowledge of mediation, I have now become a trainer in mediation and the chair the Mediation Centre for Europe, the Mediterranean and the Middle East.

Who is your dispute resolution hero/heroine?

Hans Smit, Columbia University, for having handled an arbitration proceeding extraordinarily fast, which remains a rare example in commercial arbitration.

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

Study international arbitration and write about it.  It will transpire from your conduct whether you practice in this field because you like it, or it is just a business opportunity for you.

Were you ever the first in doing something?

Probably I was the first (i) to introduce in 1997 in the rules of the European Court of Arbitration, sections providing for an appellate arbitral tribunal in commercial arbitration and (ii) to stress the duty of an arbitrator to act “with humanity and humility.

What makes your conflict resolution style unique?

I have noticed, through my various contacts on the international level, that a frequent complaint against arbitrators is that they remain distant from the parties, do not always know the file well and seem willing to spend the least possible time on the dispute. To me, the duties of an arbitrator are exactly the opposite: the arbitrator must be available to the parties, study the file well and devote to it all the necessary time. This approach amounts to acting in a spirit of service. My approach to arbitration is this one.

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

In my early days, to my great surprise, I had to refuse a top appointment because the appointor was clearly expecting that the party-appointed arbitrator would act for it.

Another difficult challenge to me is that there is not always enough discussion within the panel, each arbitrator tending to go his/her way. Discussions and even better, a very frank discussion, seem to me essential for the arbitrators to reach the best possible solution.

What is the most important mistake you see counsel make?

The most important mistake which in my opinion too many counsels make, is to keep repeating themselves in all their pleadings and/or discussions. This is likely to produce the risk that the arbitrator does not read at length all the passages in which he/she finds a clear repetition and sometimes in the middle of such repetition there could be anew sentence or word which might have helped that party’s case.

Another mistake is to insist on a hopeless argument. In general, counsel should not ignore what transpires from the conduct of the arbitrators and the opposing party and adjust – if needed – his/her line of defense.

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

A frequent negative view of commercial arbitrators is that they concentrate on showing how good they are and on writing a brilliant piece of legal literature.

Another very negative aspect for the image of arbitration consists of frequent appointments made just because of the “esprit de copinage”.  This leads some arbitrators not to share their position fully with the other members of the panel by fear of making them unhappy and jeopardizing the possibility that they could appoint him/her on other occasions in the future.

In your view, what makes CPR unique?

What to me makes CPR unique is the message that it conveys: it shows that CPR has neither a self-serving nor a commercial purpose and its Rules illustrate its goal of understanding the needs of the parties and to find way to address and accommodate them.

A Letter from CPR President & CEO, Allen Waxman

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

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

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

CPR DISPUTE RESOLUTION REMAINS OPEN FOR BUSINESS

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

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

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

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

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

NEW PROGRAMMING

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

SOCIAL DISTANCING – BUT STILL SURGING AHEAD ON ALL FRONTS

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

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

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

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

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

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

A RICH SCHEDULE OF UPCOMING PROGRAMMING

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

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

STAY SAFE AND STAY STRONG

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

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

Warm regards,

Allen Waxman