No Notice: NJ Federal Court Declines to Compel Arbitration

By Elena Gurevich

Morgan Stanley has lost a bid to compel arbitration against a former employee.

A New Jersey federal district court ruled that the arbitration agreement circulated by the company via email could not be constituted as adequate notice, and therefore was not binding on the plaintiff.

This is not the first time a New Jersey court has struck down a motion to compel arbitration. There seems to be a trend in the approach that New Jersey state and federal courts take in examining the ADR process. The courts are looking closely at arbitration clauses in light of the state’s consumer protection and employment discrimination laws. See “Examining New Jersey’s Arbitration Scrutiny,” CPR Speaks blog  (July 12, 2016)(available at

In Schmell v. Morgan Stanley & Co., Civ. No. 17-13080 (D.C. N.J. March 1)(available at, the court did not even look at the cases Morgan Stanley relied on, saying that the fact the plaintiff—a senior vice president in the financial services company’s Red Bank, N.J., office—had notice of the agreement was in dispute.

The court found that the defendant company’s evidence that the plaintiff was working and accessing emails on the day the email in question was sent could not be considered as proof of adequate notice.

U.S. District Court Judge Anne E. Thompson also found that the plaintiff’s certified statements that he had no recollection of receiving and viewing the email were indicative of the fact that there had been no meeting of the minds, and therefore no mutual assent to the agreement.

Noting the plaintiff’s certification, the opinion also stated that the email notification and the plaintiff’s continued employment did not constitute notice, despite contrary case law. Therefore, Thompson reasoned, the court did not have to “consider whether this dispute falls within the scope of the Arbitration Agreement.”

She declined to compel arbitration, rejecting Morgan Stanley’s motion. The firm had fired the plaintiff last October, alleging discrimination for past conduct involving drug and alcohol abuse that the plaintiff detailed in a book about his life. The Thompson opinion states that the plaintiff was terminated even though he had made the changes to the book that Morgan Stanley had demanded he make, in order to continue working at the company.

According to the plaintiff’s attorney, Joshua Bauchner, a partner in the Woodland Park, N.J., office of Ansell Grimm & Aaron, no notice of appeal has been filed in the case. Attorney for Morgan Stanley, Kerrie Heslin, a partner in Chatham, N.J.’s Nukk-Freeman & Cerra, has not responded to an email request for comment.

The New Jersey treatment of arbitration agreements continues to evolve. A December attempt to make legislative changes died in committee, but it is likely that similar initiatives will emerge.

A Senate bill attempted to bar provisions in employment contracts that waive rights or remedies as well as agreements that conceal details relating to discrimination claims. Though the bill didn’t mention arbitration, the accompanying statement makes its intention clear, noting that “provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment, including claims that are submitted to arbitration, would be deemed against public policy and unenforceable.”

The proposal can be found here:

* * *

The author is a CPR intern.



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

District Court Overrules Arbitrator’s Authority on Class Certification

By Ginsey Varghese

A recent decision in a long-running New York case permitting federal review of an arbitrator’s authority in class arbitration may have substantial implications for arbitration law.

In January, a New York Southern District Court decision vacated an arbitrator’s class certification award to protect the due process rights of more than 70,000 absent class members in a gender discrimination matter, Jock v. Sterling Jewelers Inc., No. 08 CIV. 2875, 2018 WL 418571 (S.D.N.Y. Jan. 15, 2018) (available at

U.S. District Court Judge Jed Rakoff held that the arbitrator exceeded her powers under the Federal Arbitration Act because an arbitrator cannot bind non-parties when the arbitration agreement does not allow class-action procedures. Id. at 2018 WL 418571, at *5; 9 U.S.C. §10(a)(statute available at

The FAA authorizes vacatur in four limited circumstances, one of which Rakoff employed in this case, “where the arbitrators exceeded their powers, or so imperfectly executed them that a . . . final and definite award upon the subject matter was not federal made.” 9 U.S.C. §10(a).

The case began in March 2008 with several female Sterling employees filing a class action discrimination suit against the company. The district court compelled arbitration. Jock v. Sterling Jewelers, Inc., 564 F. Supp. 2d 307, 310-12 (S.D.N.Y 2008).

The case has since endured several procedural appeals, with the latest decision resting in part on U.S. Supreme Court Associate Justice Samuel A. Alito Jr.’s concurrence in Oxford Health Plans LLC v. Sutter, where Alito distinguished “absent members,” reasoning that “it is far from clear [whether] they will be bound by the arbitrator’s ultimate resolution of the dispute.” 569 U.S. 564, 574 (2013).

This case appears to be the first time that Alito’s concurrence has been used to overrule an arbitrator’s authority. See Andrew C. Glass, Robert W. Sparkes III, Roger L. Smerage, and Elma Delic, “A First in Second (Circuit): On Remand, District Court Breaks New Ground by Vacating Arbitrator’s Class Certification Award,” K&L Gates blog (Feb. 1, 2018)(available at

At this stage, Rakoff’s decision provides protection for companies with arbitration provisions that are silent on class action procedures, but it undermines and challenges arbitrator authority.

As has been a constant in the litigation, there’s more to come. Rakoff’s decision is the subject of a Jan. 18 notice of appeal, and is now, once again, pending review before the Second U.S. Circuit of Appeals. Jock v. Sterling Jewelers Inc., 18-153.

More on Jock, including its long history and pending appeal will appear in the April issue of Alternatives. March is out now, free here for CPR members, and here for the public.

The author is a CPR Institute 2018 intern. She is a law student at Pepperdine University’s School of Law in Malibu, Calif.

International Commercial Mediation Update: UNCITRAL Working Group II Moves Forward on Convention and Model Law

erinBy Erin Gleason Alvarez

The United Nations Commission on International Trade Law (UNCITRAL) Working Group II met at its 68th session in New York from February 5 through 9 to finalize draft convention and model law documents. The focus of these instruments is on the enforcement of international commercial settlement agreements resulting from mediation.

Working Group II was initiated by UNCITRAL in 2014 in order to explore whether it is feasible to develop mechanisms for the enforcement of mediated agreements in international commercial disputes.  Since then, there have been several sessions to explore the most appropriate path forward.

The need for this Working Group grew out of concern that parties to mediated agreements may not be afforded the same protections as those available in international commercial arbitration. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), entered into force in 1959, obligates States to recognize and enforce arbitral awards made in other contracting States.

To accommodate parties’ desire to mediate international commercial disputes, practices have emerged to try to transform a mediated settlement agreement into an arbitral award. In addition to practical concerns over enforceability, these steps add significant process to mediation, which parties tend to like because it is simpler than arbitration (among other reasons). Other recourse for enforcement of mediated settlements in international commercial disputes can include pursuing claims for enforcement of the agreement under contract law. But this may also be difficult in the international context, depending upon the jurisdiction where enforcement is sought. Protracted cross-border litigation to enforce a mediated settlement is counterintuitive at best.

Thus the proposed model law and convention seek to alleviate these concerns, recognizing the increased use of mediation in the international commercial context and the benefits that the mediation process affords parties. The instruments, as they are currently drafted, address both enforcement concerns and the possibility for a party to invoke a settlement agreement as a defense. To date, changes have not yet been uploaded to the UNCITRAL website that would show the most recent revisions to the draft model law and convention. The most recent drafts are available here.

By way of background, a “model law” is a template of sorts, for States to consider adopting locally. A “convention” on the other hand is an instrument that is binding on States and other entities (so long as they are signatory to the document).

What does all of this mean for parties to mediation? For now, it means waiting for further developments. UNCITRAL must ultimately approve the instruments before any adoption or ratification processes may commence. The Commission will commence review this summer.

Erin Gleason Alvarez is Principal at Gleason Alvarez ADR, LLC.  She serves on the CPR Institute Panel of Distinguished Neutrals and co-chairs the CPR Institute Mediation Committee.  Erin previously acted as the former Global Head of ADR Programs for AIG. 

Erin now serves as mediator and arbitrator in commercial and insurance disputes and may be reached at

Ethics Issues in Mediation: Confronting the Maze of Confidentiality and Privilege

By Ginsey Varghese

With a rise in litigation about mediation, likely linked to its  increasingly common use, it is important to take a closer look at the ethical issues facing both the mediator and advocate in a mediation.

What are the ethical obligations of mediators to parties when engaged in “shuttle diplomacy” in private caucusing? How does blanket confidentiality in mediation agreements intersect with attorney-client and work product privilege? In disputes following mediation, will courts pierce the confidentiality of mediation? Can mediators be subpoenaed to testify?

These hairy contours of the law and mediation were addressed in an interactive panel hosted jointly by CPR, Practical Law, and Jenner & Block, LLP on January 8, 2018.  The panel was moderated by Steven Skulnik (Editor) of Practical Law, and featured Noah Hanft (President and CEO) of CPR, Bernadette Miragliotta (Managing Counsel) at American Express Company and Richard Ziegler (Partner) at Jenner & Block, LLP (pictured in the order, from left to right below).

use webinar

Almost 400 people attended the session via webinar, and another several dozen in person at Jenner & Block’s New York offices. The discussion was extremely engaging as the moderator, Mr. Skulnik, steered panelists’ conversations around realistic hypotheticals with live polling and immediate feedback from the audience.

The session began discussing a mediator’s duty of confidentiality in private caucus. Mr. Ziegler stated, “An effective mediator must review with the parties exactly what the mediator can say in caucusing with the other side.” All the panelists agreed, adding that mediators must be tactful in their language conveying information to guard the confidentiality of each side.

In a discussion about whether mediators should suggest specific dollar amounts for offers or demands, Ms. Miragliotta stressed that this should be avoided as it is essential that parties feel like it is their mediation…that they own the process and the settlement. It is not beneficial for parties to feel rushed into an outcome over which they do not feel ownership, she added.

Another important consideration  discussed is that there is no single uniform body of law on mediation across the 50 states jurisdictions and federal jurisdiction, and only 12 jurisdictions have adopted the Uniform Mediation Act.

As Mr. Hanft explained, knowledge on the applicable law or the necessary “magic words” in a particular jurisdiction when enforcing a settlement or protecting confidentiality in a post-mediation dispute is paramount. He also offered practical guidelines to ensure a settlement is more likely to be enforced.

The panelists deliberated a range of other topics: the complexities of Attorney-Client Privilege and Work Product Doctrine in a mediation; post-mediation disputes that commonly arise including settlement enforcement; mediation confidentiality issues in malpractice or non-party disputes; and best practices for mediator and advocates, among others.

As Jenner & Block’s Ziegler summarized, “Confidentiality in mediation is not ironclad.”

The final takeaway? When in mediation, be mindful of not crossing ethical lines and not inadvertently waiving attorney client privilege or work product protection.

An audio stream of the panel discussion is available In CPR’s member’s only Resources Library HERE (you must be logged in to view).

Ecuador’s Plea for Mediation in the Assange Standoff

By Ginsey Varghese

In early January, Ecuador Foreign Minister Maria Fernanda Espinosa indicated interest in mediation by a “third country or personality” to resolve the asylum case of Julian Assange, the founder of WikiLeaks.

Assange has been living in Ecuador’s embassy in London since June 2012, avoiding extradition to Sweden on a rape charge. Paulina Dedaj, “Assange asylum ‘not stable,’ Ecuadorian embassy says,” Fox News (Jan. 9) (available at

The Swedes are no longer pursuing the case, but the United States still may want Assange extradited in connection with the WikiLeaks publication of U.S. military information.

Today, a U.K. court denied Assange’s request to invalidate the arrest warrant for him, after his lawyers argued that there was no need for extradition since the original charges in Sweden had been dropped.  “Julian Assange arrest warrant still stands, court rules,” BBC News (Feb. 6)(available at The request was denied.

The BBC earlier reported that Assange’s current arrangement is unsustainable. “A person cannot live in those conditions forever,” Espinosa said. “Julian Assange: Ecuador seeks mediator in ‘unsustainable standoff,’” BBC News (Jan. 9) (available at

Assange earned notoriety in 2010 when WikiLeaks released confidential materials about U.S. military activity in Iraq and Afghanistan, which included helicopter video of civilians being killed in Iraq, diplomatic correspondence of underground negotiations and classified documents about the war in Afghanistan and Iraq. Liam Stack, Nick Cumming-Bruce & Madeleine Kruhly, “Julian Assange: A Legal History.”  N.Y. Times (Updated Jan. 26)(available at

There are rumors of a secret U.S. arrest and extradition warrant for his connection to exposing U.S. state secrets if he leaves the embassy. Maggy Ayala & Steven Erlanger, “Ecuador Gives Assange Citizenship Worsening Standoff with Britain.” N.Y. Times (Jan 11) (available at

Assange fears prosecution by the United States, and British officials have not provided any assurances that he would not be extradited. Alexandra Valencia, “Ecuador says exploring mediation to solve Assange standoff,” Reuters (Jan. 9)(available at

CNN earlier reported that the British police maintain an arrest warrant for Assange because he jumped bail after the British Supreme Court denied his extradition appeal. Jason Hanna, “Swedish court refuses to revoke Julian Assange’s arrest warrant,” CNN (Nov. 20, 2014) ( See also Ana Melgar, Jamie Grey, and Kara Fox, “WikiLeaks founder Julian Assange granted Ecuadorian citizenship,” CNN (Jan 11) (

Assange described the situation since his arrest as a “terrible injustice.” Robert Booth, “Julian Assange’s stay in London’s embassy untenable, says Ecuador,” Guardian (Jan. 9) (available at

When Ecuador initially granted asylum to Assange, he was viewed as a political hero by many for opposing “US imperialism”; but today, with his interference in the 2016 U.S. presidential election, Assange’s supporter base has shifted to “hard-right nationalists,” according to the Guardian‘s James Ball, “The only barrier to Julian Assange leaving Ecuador’s embassy is pride,” Guardian (Jan. 10)(available at

Reuters earlier quoted Espinosa, who stated, “No solution can be reached without international cooperation and without cooperation from the United Kingdom.”

The Guardian noted that Assange’s lawyer appeared to welcome Ecuador’s mediation proposal, and emphasized that the U.K should “respect[] its human rights obligations and commitments to the United Nations.”

But UK government countered that Assange should leave the embassy and face justice.

The diplomatic standstill has only worsened with Ecuador’s grant of citizenship to Assange last month, a decision that Ecuador Foreign Minister Espinosa explained was made after careful review of Ecuador’s obligations under Ecuadorean law and international law, according to the New York Times.

Ecuador’s “mediation” pitch may be a route to resolution, but so far, the stalemate continues.

The author is a CPR Institute 2018 intern. She is a law student at Pepperdine University’s School of Law in Malibu, Calif.  

Dispute System Design: Advancing Predictability, Cost Savings and Efficiency In-house

By Erin Gleason Alvarez

The problem with disputes is that they never go away.  Yes, they are resolved one by one – maybe even a group of them are settled at once.  But there are always more lurking: another claim, waiting to be filed; another complaint, making its way to your desk.  It’s a cycle and everyone knows that.

Many things in this dispute world are out of your control – or at least it feels that way.  Litigation costs money – sometimes lots of it.  It takes time – sometimes lots of that too.  Both of these things are hot commodities and less than ideal expenditures from a business perspective.  Thus, the pressure on the in-house attorney to manage risk, manage cost, settle, settle at the right cost at the right time… it’s always there.

If we know that there will most likely always be a disputes cycle, forever costing money and taking precious time, what is the best way to manage this and prevent logjams? There is an answer.

Dispute System Design

Perhaps it makes sense to take a cue from the business side of the house and view this dispute cycle as another business process to be mapped and managed.  At CPR, we’ve heard many stories affirming this strategy as a successful one, including my own experience in-house.

Nonetheless, year after year, in survey after survey – when in-house counsel voice their concerns over cost and efficiency – there is rarely a mention of dispute resolution systems.  For example, in the 2017 Litigation Trends Annual Survey produced by Norton Rose Fulbright, only 9% of corporate counsel reported that internal processes or controls for reducing the volume of litigation was an effective strategy; only 2% favor a regular risk mapping process.  Instead, a majority of corporate counsel responding to the survey rely on regular training programs for lawyers and early case assessment as effective ways to manage litigation.

What if you combine training + early case assessment + risk mapping + protocols?  Picture it: A coordinated system to resolve disputes, designed specifically to address the in-house concerns about spending too much money on litigation and wasting time that might be better spent elsewhere.

This is where “dispute system design” comes in.  Dispute system design is the process for identifying the trends and pain points in your dispute resolution/litigation practice, and then implementing process improvements along with measurements of your success.

How It Works

Here is a brief overview of what a dispute system design strategy entails:

  1. Conduct an assessment:  What’s vexing, trending, anticipated in your disputes portfolio?  This may be identified through surveys, interviews and data analysis.
  2. Process improvement:  What solutions can you identify to address these issues?  How is mediation being used – can it be done earlier?  What negotiation techniques are most relied upon?  How is arbitration handled?  Some cases must inevitably be routed to litigation – what is the best way for identifying them early?
  3. Implementation: How will you implement the strategies you have identified as most sensible for your work?  Training?  Metrics?  Employee evaluation? Changes to law firm relationships? Processes for identifying better mediators and arbitrators?
  4. Measure success: What criteria will you require to determine the level of success achieved?  Are you mainly concerned about saving litigation cost?  Cost associated with employee time? Case volume?  Settlement rate?  Or are there qualitative goals that should be considered as well, including employee job satisfaction and opening more opportunities for career growth?

Areas of Application

Just as systemic approaches to governance, compliance and contract management are well settled  corporate strategies, dispute system design and management is a practical way to manage exposure.  Bespoke litigation strategy will always have some role in the cycle.  But let’s face it:  Are most of your cases unique and deserving of their own individualized strategies and budgets?   Are the facts so  different that the analysis must be carefully tailored, time and again?  Sometimes.  Most of the time – probably not.

A dispute system design approach may be implemented to address your litigation portfolio, formalizing early case assessment measures, monitoring and reporting on their efficacy and helping to trigger other dispute resolution mechanisms where needed (e.g., direct negotiation processes, mediation, streamlined arbitration, etc.).

Dispute system design work may be applied in other contexts as well.  For example, many reports cite in-house concerns over the rise in cybersecurity disputes over the next year.  Analyzing your current cyber disputes portfolio, in order to develop methods for triage and settlement approach is one way to insert some predictability into an area that is causing a fair amount of anxiety in-house.  The same can be said for other areas of growing concern to in-house counsel: rising environmental concerns, the ever-present threat of mass disasters, and continued changes in health care – all of which are stressors on litigation budgets.  It is proactive to address these risks in a systematic way to enhance predictability, efficiency and cost controls.

Do You Need It?

In determining whether dispute system design is right for your organization, consider these factors:

  1. Are you currently satisfied with the length and cost involved in managing disputes?
  2. Have you identified any issues relating to dispute outcomes (in terms of quality, time to resolution, or expense required)?
  3. Are there any obvious issues that you can address to make your processes more efficient?
  4. Do you have the bandwidth or expertise to conduct this type of review for your company?
  5. What is the ROI in retaining someone to conduct the review for you?
  6. Would reporting on dispute resolution savings, or other efficiencies, be of value to the organization?


Dispute system design is an important function for in-house counsel to utilize in managing disputes in a systematic way.  A coordinated approach lends to predictability in dispositions, cost savings and many other efficiencies.


Erin Gleason Alvarez launched Gleason Alvarez ADR in 2017.  She formerly served as the Global Head of ADR Programs at AIG, where she designed dispute resolution systems and served as an advisor to state agencies in the development of mass disaster protocols following Hurricanes Irene, Ike, Sandy and mass claims resulting from wildfires fires in California. 

Erin now serves as a mediator and arbitrator in commercial and insurance disputes.  She also serves as a consultant to corporations and law firms in designing dispute resolution systems. 


Predispute Arbitration Would be Barred for Sex Harassment Claims Under Legislative Proposal

By Elena Gurevich

The Federal Arbitration Act is being targeted in Congress in a bill that seeks to ban predispute arbitration in matters involving sexual harassment.

Last month, Sen. Kirsten E. Gillibrand, D., N.Y., along with 13 co-sponsors., introduced U.S. Senate bill S-2203, titled “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

The act makes predispute arbitration agreements unenforceable for sex discrimination disputes.  It would put the responsibility for determining arbitrability on courts, not arbitrators.

The Dec. 6 proposal was immediately referred to the Committee on Health, Education, Labor, and Pensions.  It was introduced in the House by Rep. Cheri Bustos, D. Ill., on Dec. 26, with seven co-sponsors, and sent to the Judiciary Committee.

The act would amend United States Code Title 9—the FAA—by adding a new Chapter 4 “Arbitration of Sex Discrimination Disputes” at the end.

In a proposed Section 401, the legislation would define “predispute arbitration agreement” as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement,” and “sex discrimination dispute” as “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under title VII of the Civil Rights Act of 1964 [citation omitted] if the employment were employment by an employer [as defined in the act], regardless of whether a violation of such title VII is alleged.”

Proposed Section 402, on validity and enforceability, states that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute.”

According to a blog by employment attorneys at the law firm of Orrick, Herrington & Sutcliffe, if the act is passed into law, it “would not make employment arbitration agreements altogether unenforceable.” Joe Liburt, Allison Riechert Giese and Akasha Perez, “The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo,” Orrick Employment Law and Litigation blog (Dec. 14) (available at

The blog post notes that the proposal “would require employers and employees to litigate sexual harassment claims, while leaving unaffected all other arbitration-eligible claims.  This could potentially require employees who bring both harassment and non-harassment legal claims to litigate some claims in court while simultaneously submitting other claims to arbitrators.”

The proposed law, however, does not prohibit workers and employers from agreeing to arbitration after a dispute arises.

The Orrick blog notes that the legislative proposal “has a long journey” before it is signed into law, explaining that “the bill must be assigned to a committee for consideration, withstand debate” and “pass a vote.” The blog post predicts that it “could take months or even years to complete, if ever.”

A USA Today article notes that Congress also “is wrestling with incidents of sexual harassment,” referring to a resolution passed by the Senate that requires sexual harassment training for senators and staff.

The article discusses a bipartisan bill that was introduced in November that would “overhaul the congressional complaint process and provide better protections for accusers.” The article also notes that “other lawmakers are looking to reform the secret process lawmakers have used to settle numerous workplace harassment and discrimination claims.” See Jessica Guynn, “‘Enough is enough’: Gretchen Carlson says bill ending arbitration would break silence in sexual harassment cases,” USA Today (Dec. 6)(available at

Some companies already have taken action in the light of the proposed legislation. Last month, Microsoft became the first Fortune 100 company to support the bill. Microsoft President and Chief Legal Officer, Brad Smith, stated that the company should “act immediately and not wait for a new law to be passed.” Brad Smith, “Microsoft endorses Senate bill to address sexual harassment,” Microsoft blog (Dec. 19)(available at

The author is a CPR intern.

How Far Can the Bench Go? The ABA on Judges’ Independent Research

By Elena Gurevich

Last month, the American Bar Association ABA Standing Committee on Ethics and Professional Responsibility, which develops model ethics standards for attorneys and judges, took on the judiciary’s use of the web in trial work.

The committee published Formal Opinion 478, “Independent Factual Research by Judges Via the Internet,” highlighting how “a vast amount of information available on the Internet exposes judges to potential ethical problems.” Released Dec. 8, the opinion is available at

The formal opinion may have implications for alternative dispute resolution. It defines the term “judge” as “anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary.” See Model Code of Judicial Conduct, Application § I(B)(2011).

The question is whether it can be inferred that arbitrators fall into this category as well, subjecting their neutrals’ roles to the opinion’s rules.

The general rule, the opinion notes, is Model Code of Judicial Conduct Rule 2.9(C).  The rule states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” A comment to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”

In the opinion, the committee stresses a distinction between the “legislative facts”—defined as “general facts which help the tribunal decide questions of law and policy and discretion”—and “adjudicative facts,” which are facts “concerning  the immediate parties—who did what, where, when, how, and with what motive or intent.”

The opinion notes that “research of legislative facts does not raise the same due process concerns as research of adjudicative facts.”

The ABA provides guidelines in the opinion for independent Internet factual research by judges. These guidelines are designed to help judges decide whether to independently investigate facts on the Internet.

They include (1) assessing whether additional information is necessary to decide the case, and (2) whether the judge is corroborating or discrediting facts, or filling in factual gaps in the record—and, where, in the case adjudicative facts, it would be improper to do so.

But there is still a possibility that a judge can misjudge—pun intended—a situation when it comes to verifying sources. For example, a third guideline states that when a judge is “seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case . . . [then] the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books.”

A fourth and final guideline looks at a judge seeking background information about a party or subject matter of a case.

The question with these guidelines is what if, while doing research unrelated to a case, a judge stumbles upon and reads something that is related? The research might start as a need for a better understanding, but the moment a judge obtains that information it can affect his or her judgment.

The ABA underscores that the key inquiry for the judge is “whether the information to be gathered is of factual consequence in determining the case.”  The opinion, which illustrates its points with hypothetical examples, continues, “If it is, it must be subject to testing through the adversary process.”

The opinion also equates general background learning on the Internet to “attending judicial seminars or reading books”, but warns that it can be of service “so long as there is reason to believe the source is reliable.”

And here lies another problem: the definition of “reliable.” To different individuals, it is all a matter of perspective.  To some prominent judges, Wikipedia has been a reliable source. See, e.g., Lubavitch-Chabad of Illinois Inc. v. Northwestern Un., 772 F.3d 443 (2014)(7th Cir. 2014)(available at

For judges, the dangers are not only on the World Wide Web, but even in the court’s computerized records systems, where judges are essentially urged to rely on their skill and capability in order to get the search right. The committee quotes Illinois Judicial Ethics Opinion 2016-02, which cautions judges that

the particular judge’s competence to navigate the computerized court records is essential . . . only facts which are ‘not subject to reasonable dispute’ are the proper subject of judicial notice. The judge must be confident that his or her review will lead to accurate information. For example, indexes of computerized court records are likely to contain individuals with the same name; is the inquiring judge capable of finding the appropriate records and accurately matching them to the party in question? Judges must be aware of their own skills and, more importantly, their limitations.  . . . [Emphasis is in the opinion.]

The bottom line is that judges are walking a fine line every time they are taking on a case. After all, it is very easy to make a mistake when it’s only one click away.

The opinion also notes that Model Rule 2.9(D) requires judges to make sure the court staff and officials do not perform improper independent investigations.

The ABA’s website explains that the ABA Standing Committee on Ethics and Professional Responsibility “periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.”

ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct.

Formal Opinion 478 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions,” or directly at the link above.  For more analysis, see Debra Cassens Weiss, “May judges search the internet for facts? ABA ethics opinion sees problems,” ABA Journal (Dec. 8)(available at

The author is a CPR Institute intern.

In Memoriam: CPR Chairman Emeritus Charles Renfrew

By Russ Bleemer

The International Institute for Conflict Prevention and Dispute Resolution mourns the loss of Chairman Emeritus Charles B. Renfrew (pictured above), who died in San Francisco on Dec. 14 at age 89.

Renfrew had served nearly 15 years as board chairman when he stepped down from the post in 2011. He remained active with the organization and continued his longtime private practice focusing on mediation and arbitration, as well as corporate investigations.

He also had experience in a wide variety of specialized alternative dispute resolution processes, including early neutral evaluation and mini-trials, and acted as a special master.

“It is difficult to imagine a more impressive career than that of Charlie Renfrew,” said CPR President & CEO, Noah J. Hanft. “His commitment to public service was apparent to all who knew him, as was his commitment to the CPR Institute. CPR was indeed fortunate to have Charlie serve as its Chair for 15 years, and for far longer than that he was a clear and strong voice articulating the importance of CPR’s mission—continually seeking better ways to prevent and resolve disputes. Charlie was both a man of substance and a man of character with a warmth and kindness which was evident to all who knew him.  I will never forget that he was the first person to reach out to me after I was named CEO and his warm, supportive messages from that day forward. Charlie was a true gentleman and we will all miss him.”

Renfrew’s ADR work began during a storybook legal career that included private practice, in-house corporate representation and advocacy, the federal judiciary, and the U.S. Justice Department, as well as social activism.

A veteran who served both in the U.S. Navy in World War II and in the U.S. Army during the Korean conflict, Renfrew began his legal career at San Francisco’s Pillsbury, Madison & Sutro in 1956, becoming partner a decade later.

He departed the firm when President Richard Nixon appointed him to the U.S. District Court in California’s Northern District in 1972, where he stayed until President Jimmy Carter appointed Renfrew Assistant Attorney General under Benjamin Civiletti in 1980.

But when Carter was defeated by Ronald Reagan later the same year, Renfrew returned to Pillsbury.  After a two-year stint, he became Vice President of Legal Affairs for Chevron Inc., where, in 1988, he joined CPR’s board in 1988.

In 1993, Renfrew returned again to private practice as a partner at LeBoeuf, Lamb, Greene & MaCrae after retiring from Chevron.

After four years, he opened the Law Offices of Charles B. Renfrew in San Francisco, which became the longest-running job in his career, focusing on alternative dispute resolution.

In addition to his work at CPR, Renfrew served on the boards of Princeton University, Claremont University Center, the San Francisco Symphony, the San Francisco Museum of Modern Art, the NAACP Legal Defense and Education Fund, the Lawyers Committee for Civil Rights and the Council for Civic Unity. He also served as a director at Chevron.

Renfrew was active in bar associations and taught at Boalt Hall School of Law, University of California at Berkeley. He graduated with a BA from Princeton University, and from the University of Michigan Law School.

Renfrew was known for an unusual approach on the bench in the criminal cases he oversaw on the federal bench.  After sentencing, the judge would follow up on the convict’s service, and occasionally would visit the institutions to check on their rehabilitation progress.

Renfrew notably ordered specific sentences for community service as part of the condition of offenders’ release, to encourage reflection by the convict, and lower the odds of recidivism.  See Bob Egelko, “Charles Renfrew dies; Democrat appointed SF federal judge by Nixon,” San Francisco Chronicle (Dec. 26)(available at, and Carol Spiezio, Charles Renfrew, Former Federal Judge, Dies at 89,” The Recorder (Dec. 19)(available at

Throughout his career, Renfrew spoke and wrote often about his deep faith in the effectiveness of alternative dispute resolution, and his expectations for its continued growth.  He frequently cited mediation and arbitration’s success as the core reason for his decades of work at the CPR Institute.

Renfrew was nearly evangelical at CPR meetings and in articles in his focus on developing ADR, and creating opportunities for its growth and improvement. During his years on the CPR board, he spearheaded the organization’s emphasis on international work, and measures to prevent conflicts, among numerous other conflict resolution efforts.

In a 2009 Alternatives article reflecting on CPR’s 30th anniversary, Renfrew, with his characteristic optimism about conflict resolution, and also characteristically looking ahead, concluded,

The future for the CPR Institute is promising, too, if we continue to build on our strengths and uniqueness. We must continue to involve the users of ADR services, not just be an organization of ADR providers. If CPR continues to be supported by those who recognize its unique role in the ADR movement, it will continue to flourish and perform the leadership role it has since its inception.

Renfrew is survived by his wife, Barbara Jones Renfrew, who often joined her husband at CPR Annual Meetings and events, as well as eight children, 21 grandchildren and two great-grandchildren.

A memorial service was held in San Francisco on Jan. 6.  The family suggested donations in his name to the NAACP Legal Defense Fund, where he also served as a board member.


*Russ Bleemer is the editor of CPR’s award-winning magazine, Alternatives