CPR Council Meeting: Abraham Lincoln and Dispute Resolution

By Xin Judy Wang

The June 22 CPR Council meeting featured a presentation on Abraham Lincoln and dispute resolution by the International Institute for Conflict Prevention & Resolution’s former CEO & President Thomas J. Stipanowich, the William H. Webster Chair in Dispute Resolution and a law professor at the Straus Institute at Pepperdine University’s Caruso School of Law in Malibu, Calif.

He served as CPR’s president and CEO from 2001 to 2006, and returned to discuss his project, “The Lincoln Way: Abraham Lincoln as a Problem Solver and Manager of Conflict.” 

Stipanowich began his presentation discussing the United States’ fascination with Lincoln, the 16th president. Possibly the nation’s most familiar historical figure along with George Washington, Lincoln lived one of the most documented and written-about lives from the nineteenth century. Almost everyone feels some level of familiarity with Lincoln, attaching him to particular principles, life experiences, or lifestyles. Lincoln was also a self-taught lawyer who worked on a broad spectrum of cases ranging from pig-stealing incidents to representation of railroads.

Stipanowich said he was attracted to Lincoln’s legacy through a telling quote: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” The quote came from Lincoln’s lectures to fellow lawyers around 1850, many of whom were trial attorneys.

From this quote, Stipanowich saw a striking similarity between Lincoln’s peacemaking spirit and CPR’s mission to reduce conflict to enable purpose.

As Stipanowich’s project title suggests, Lincoln was a lifelong problem solver and a conflict manager.

Lawyer Lincoln encouraged fellow trial lawyers to discourage litigation and always sought ways to resolve conflict out of the courtroom to avoid the often-unsatisfactory result through trials. Stipanowich found evidence that Lincoln was an informal mediator and had served as an arbitrator. Once, he organized a minitrial with a judge outside the court, with the judge rendering a nonbinding decision that settled a dispute without going to trial.

Stipanowich found Lincoln recognizing that, especially for reputational conflict–a popular type of suit at the time–going to trial is not the best way, whether one is representing the plaintiff or the defendant. It was better to reach a negotiated settlement privately.

As a politician, Abraham Lincoln navigated across party lines to achieve resolutions in the context of a mega-negotiation to address every stakeholder group. He had contacts in different parts of the country, reaching out to border states and southern politicians. It was his awareness of changing circumstances that led to his campaign leading to the Emancipation Proclamation. The African American community’s support was critical for restoring the union as a growingly important constituency and a necessary force in the military.

As an individual, Lincoln wrestled with internal conflict on self-image, religion, and relationships. Stipanowich found Lincoln to be tremendously influenced by reading the autobiography of Ben Franklin as a teenager, thus developing an enduring rationalist spirit. Lincoln was clear in his mission and ambition: “Every man is said to have his peculiar ambition. Whether it be true or not, I can say for one that I have no other so great as that of being truly esteemed of my fellow men, by rendering myself worthy of their esteem.” In pursuit of such honor and respect, Lincoln wrestled with depression, a broken engagement, and an avoided duel.

Through navigating conflicts and periods of crisis stemming from his internal and external conflicts, Lincoln built and rebuilt a transformational leadership. Lincoln’s rational, problem-solving spirit is just as relevant today for lawyers, corporations, and interested parties. In Stipanowich’s 2009 article, “Lincoln’s Lessons for Lawyers,” he summarized Lincoln’s legal practice principles:

  1. Use litigation as a last resort—and be frank with your client about its costs and risks.  
  2. Try to be objective in assessing your client’s case; avoid “irrational optimism.” 
  3. Begin negotiating cooperatively and encourage the reliance of others by behaving in a logical and predictable way. Look for trade‐offs.
  4. Seek creative ways of bridging the gap to an agreement that achieves a client’s key goals and priorities in a simple, straightforward manner.
  5. Do not place your own financial interests or ego above the interests of the client.

Thomas, Stipanowich, “Lincoln’s Lessons for Lawyers” Dispute Resolution Magazine 18  (Feb. 1, 2010) (available at https://bit.ly/3INyalO).

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The CPR Council, the governance body of the CPR Institute, promotes the practice of more efficient and effective dispute prevention and resolution. It oversees the development of dispute management resources and tools. The Council’s web page is available at www.cpradr.org/about/cpr-council.

In addition to Tom Stipanowich’s presentation, the June 22 Council meeting also discussed the updated Council Charter, new Council programming, CPR Dispute Resolution Panelists, CPR’s new Immediation Platform for dispute resolution services, and the revised CPR Diversity Commitment. The meeting concluded with a networking session.

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The author, who will be a second-year student at Columbia University Law School in New York this fall, is a 2022 CPR summer intern.

[END]

Judges as Mediators, and the Issues that Won’t Go Away

By Mnotho Ngcobo

If you were to ask a layman what mediation is, the answer would probably be something along the lines of, “a private dispute resolution process where an independent private mediator would attempt to assist parties to reach an agreement/solution to whatever dispute they may be facing.”

But one of the problems with the typical layman’s mediation view is that it doesn’t account for a continually emerging group of individuals working their way into this ADR process–the judicial officers, including judges and magistrates (and noting that different countries have different names for these officials).

Often, parties go to mediation to avoid facing a judicial officer. That’s arguably the best part about ADR . . . or it used to be. Judicial officers are employed to adjudicate disputes. They are trained to uphold law and rules, while private mediators are specialists trained to facilitate disputes–they aren’t primarily focused on procedure, for example, because mediation by its nature is flexible and not rule-based.

What happens when a judicial officer AKA a judge mediates a case? What issues does it raise for the parties in disputes?

The truth is that parties often fear judicial officers, and when a judicial officer is facilitating a mediation, parties might not be comfortable. There is then a risk that a party would agree to something out of fear: What happens when the same judicial officer who facilitated the mediation between the parties is tasked with running the fairness hearing? This could cause problems, and some might cry “judicial overreach.”

An interesting case where the judicial officer facilitated the mediation and was also tasked with running the settlement agreement’s fairness hearing was decided earlier this year in McAdams v. Robinson, 26 F.4th 149 (4th Cir. Feb. 10, 2022)(available at https://bit.ly/3aECNBO).

This case arises from a class action lawsuit against Coppell, Texas, finance company Nationstar Mortgage LLC, alleging that Nationstar was in breach of the state and federal consumer protection laws, failing to timely acknowledge receipt of class members’ loss mitigation applications, respond to the applications, and diligently obtain documents to process them.

The case was litigated over six years. In 2017, a Maryland-based U.S. District Court judge referred the case for “Settlement or other ADR conference” before Magistrate Judge Timothy J. Sullivan, of Greenbelt, Md. In March 2020, the parties were ordered to conduct mediation. In June 2020, the parties filed a notice of settlement and a joint motion to proceed before the magistrate judge who had mediated the settlement. Among other things agreed upon in the proposed settlement agreement was that Nationstar would pay a $3 million relief fund, consisting of:

  1. Administrative expenses up to $300,000;
  2. Attorneys’ fees;
  3. A service award to the class’s representative; and
  4. Class claims.

Any remainder, the Fourth Circuit opinion noted, would go to a nonprofit that advocates for consumers. In exchange for the settlement relief fund, all claims against Nationstar would be released.

The magistrate granted the preliminary approval of the settlement agreement and scheduled a fairness hearing.

Petitioner McAdams, who had filed suit against Nationstar in a California action, filed an objection to the proposed settlement agreement. She maintained that the class notice was insufficient; the settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad, and the attorneys’ fee award was improper.

Objection Overruled

The magistrate judge who mediated the case overruled McAdam’s objections and held that the distribution of the notice was sufficient; the settlement terms were fair, reasonable, and adequate; and the release was not too broad. The magistrate also went on to approve the $1.3 million attorney’s fee.

On appeal, the Fourth U.S. Circuit Court of Appeals affirmed in a unanimous opinion by Circuit Judge Albert Diaz.

The appeals court did not deal in detail with the issue of the magistrate judge having a dual role, as both a mediator and the judge approving the settlement.

Yet petitioner McAdams attacked the magistrate judge’s jurisdiction, holding that she did not consent to have the magistrate judge hear her case. Federal law provides that with the “consent of the parties,” a magistrate judge may conduct “any or all proceedings . . . and order the entry of judgment.” 28 U.S.C. § 636©(1). McAdams argued that the word “parties” includes her as an absent class member.

But the appeals court rejected McAdams’s assertion and held that absent members are not ‘within the contemporary meaning of the term “parties” as used in § 636.

McAdams also argued that this case presents a serious conflict of interest because the magistrate judge both mediated and approved the settlement agreement. The panel noted that it did not deal with this issue because McAdams did not “support that assertion” nor “preserve [it] for appeal.” The opinion states that McAdams did not move for the magistrate judge’s recusal or otherwise object. For those reasons, the Court did not deal with the conflict issue.

The Fourth Circuit has addressed with the issue of objector requirement in 1988 Trust for Allen v. Banner Life Ins. Co., 28 F.4th 513 (4th Cir. 2022) (available at https://bit.ly/3o47kvZ). In the case the objector argued that there was no burden on its part to show that the settlement was unfair, but rather the burden rested on the parties that sought settlement approval. The appeals court rejected this argument and held that the objector must clearly state its case to allow the other parties to fully respond and for the court to evaluate the issues. The court held that it is only when a sufficiently specific objection has been made, that the parties seeking settlement approval have the burden of proof.

The objector, like McAdams, failed to support it arguments.

The McAdams case creates severe implications for the absent class members. It may seem like the courts afford them less protection. Class actions not only affect the rights of the named plaintiffs, but also the rights of the absent class members. The court must play a major role in ensuring that the rights of all class members are recognized and protected.

The McAdams appeals panel held that absent class members are not parties to the action within the meaning of section 636(c), and, therefore, absent class members do not need to consent should the named plaintiff and defendant file a consent.

Removing and/or limiting such a right should be accompanied by some form of protection. This means that McAdam’s conflict-of-interest argument plays little to no role in this case since she, and others in her position, cannot object nor consent as absent class members.

The Magistrate’s Dual Role

Presiding judicial officers have long been performing this dual role of mediating and approving settlements. Some scholars argue that this dual role improves access to justice–in that there is no need to hire a private mediator, thus reducing costs for the parties involved.

Others counter that the dual role creates a conflict of interest. A judicial officer who mediated a case might be biased once the official has to decide on the same matter at a fairness hearing.

One of the biggest and most persistent issues is that a judicial officer determined to settle a case “has enormous power to coerce a settlement.” Patrick E. Longan, “Bureaucratic Justice Meets ADR: The Emerging Role for Magistrates as Mediators,” 73 Neb. L. Rev. (1994) (available at https://bit.ly/3z8fPMQ). The court can instill in the parties a fear of retaliation which would make going to trial unappealing.

Lawyers representing their clients before the judicial officer serving as a mediator might feel compelled to urge clients to accept whatever the judicial mediator is saying to avoid alienating the court, or be on the wrong side of the judicial officer, which would make their future cases before that judicial officer hard.

So while it may seem like a good idea to have judicial officers serve as mediators, it still can create some problems. A judicial officer who mediates a case might have his or her objectivity questioned later because, during mediation, parties will disclose information and the mediator would weigh in on that and might even advise the parties of the cons of going to trial. The judicial officer runs the risk of being committed to one view of the case.  

The risks of judicial officers serving as mediators far outweigh the benefits. In McAdams, the argument of conflict of interest could have been avoided if a different judicial officer had decided on the fairness hearing. The moment the magistrate judge ran the fairness hearing, the conflict arguments advanced above were triggered.

As McAdams demonstrates, the area continues to be one of intrigue both for case management efficiency, and the problems inherent in its use.  See a new article on the topic at Melissa B. Jacoby, “Other Judges’ Cases” NYU Annual Survey of American Law, Vol. 72, 2022 Forthcoming, UNC Legal Studies Research Paper (June 30, 2022) (available at https://bit.ly/3cj2PuY).

For more on McAdams, see Donald L. Swanson, “Judicial Mediator Serving As Deciding Judge In Same Case: An Overreach? (McAdams v. Robinson)” mediatebankry blog (Feb. 22, 2022) (available at https://bit.ly/3aEY3HC).

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The author, a South Africa attorney who received his LLM in dispute resolution from University of Missouri-Columbia Law School in May, is a 2022 CPR Summer intern.

[END]

CPR International Conference Highlights: ‘Effects on Cross-Border Disputes After the Singapore Convention’

By Bryanna Rainwater

According to the Singapore Convention on Mediation’s website, the Convention is a “multilateral treaty which offers a uniform and efficient framework for the enforcement and invocation of international agreements resulting from mediation.”

The speakers at the Oct. 6 CPR International Conference kickoff panel, “Effects on Cross-Border Disputes After the Singapore Convention” gave more context to the current legal landscape after the Convention has come into force.

The Convention was passed by resolution by the U.N.’s General Assembly in 2018, and signed into effect in August 2019. It has been hailed as a huge boost for mediation because it provides support for the effectiveness of the agreements the process produces.

The panel’s moderator was Javier Fernández-Samaniego, managing director of Samaniego Law with offices in Madrid and Miami. The speakers included: Sara Koleilat-Aranjo, a partner at Al Tamimi & Co., in Dubai; Michael Mcilwrath, founder and CEO of MDisputes, an ADR consulting firm in Florence, Italy, and a former vice president of litigation at Baker Hughes Co.; and Jan O’Neill, a professional support lawyer at Herbert Smith Freehills in London.

Koleilat-Aranjo said that mediation has “established itself as a viable, typically cost-effective, non-contentious, means to resolve disputes.” She noted that “up until the advent of the Singapore Convention, there wasn’t really . . . a legal instrument, at an international scale which sort of provided a passport . . . of enforcement of mediated settlement agreements.”

Koleilat-Aranjo discussed differences between the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), best known as the New York Convention, and the Singapore Convention. She noted that the Singapore Convention dispenses with reciprocity—the New York Convention only provides enforcement of an arbitration award that has been made in a jurisdiction that also has adopted the treaty–and that “the Singapore Convention adopts a transcendental approach, meaning . . . unlike the New York Convention, there isn’t really typically a place of mediation that is defined” like how the earlier treaty addresses the seat of arbitration.

Koleilat-Aranjo referred to what she calls “a certificate of origin,” which is when the parties must prove that settlement resulting from mediation occurred in order to enforce the award. She noted that this presents the novel issue of how to prove that a mediation award was given, particular outside of an “institutional framework,” so that it can be enforced via the Convention.

There are currently 54 Convention signatories, and eight states that have ratified it–seven at the date of the discussion, and one added since the CPR International Conference.  

Koleilat-Aranjo noted that two of the nations that have already ratified the treaty, Qatar and Saudi Arabia, are in the Middle East.  She said that this reaffirmed the popularity of mediation in those countries, and that this is not surprising considering the cultural and religious influences and attitudes toward the process. She said that in Arabic, the mediator is called the “agent of peace,” and that mediation has been used in Arab nations for many types of different dispute settlements.

The panel discussed the reservations carve-out in Article 8 of the Convention, which provides that, when adopted by a ratifying state, “the Convention would not be applicable to settlement agreements to which its government or other public entities are a party.”

Saudi Arabia, Koleilat-Aranjo noted, has carved out a reservation per its Royal Decree 96 (April 9, 2020), which mirrors the convention carve out:  It does not allow mediation to apply to the government, government officials, governmental agencies, or any person acting on behalf of those agencies.  She explained that the Saudi economy is tied in with the government, so this is broad reservation, with many international transactions tying private overseas parties to government actors.

Mike Mcilwrath gave his perspective on why the Convention has not yet been ratified by European Union nations. He said that the EU was “hostile to the convention during the drafting stage. They did not support it.” He added that this is likely because of the “coordinating effort” of the EU as a unified front, making it more difficult for individual states to sign on separately.

Mcilwrath noted that the EU chose to go to court over concerns about the AstraZeneca Covid-19  vaccine, rather than mandating mediation, which is a sign of the EU’s trend of choosing not to mediate.

HSF’s Jan O’Neill had a differing view, and–echoing Mcilwrath’s description of Italy likely supporting the Convention on its own but for the current EU hesitancy–noted that the U.K. also “has been left to its own devices” since Brexit. She added that “the U.K. is of course a very mediation friendly jurisdiction, [with a] very long-standing sophisticated mediation infrastructure.”

As a result, she said that she believes that the U.K. will sign the Convention eventually, noting that “there is a sense on the ground . . . it feels like it will happen. They’re certainly not sensing any hostility.”

She said she that the U.K. is familiar with mediation and ADR, but that priorities are stuck on the most pressing issues–the pandemic and the Brexit economy.

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CPR has posted a video of the full panel discussion.  You can find it here after logging into the CPR website. Videos from the other September CPR International Conference panels can be found here.

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Panel moderator Javier Fernández-Samaniego has prepared an article analyzing the Singapore Convention developments and expanding on the panel discussion for CPR’s monthly newsletter, Alternatives to the High Cost of Litigation. His article is scheduled to appear in the December issue.

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The author, a second-year student at Brooklyn Law School, is a 2021 CPR Fall Intern.

[END]

‘Oncoming Tsunami’: With CDC Eviction Moratorium Ending July 31, Will ADR Programs Come to the Rescue of Tenants, Landlords, and Courts?

By Mylene Chan

The Covid-19 pandemic has had a number of negative economic effects, and one of the most significant is the exposure of renters across the United States to increased eviction risks.

And mediation, in turn, has been a significant response.

According to Princeton University’s eviction tracking system–monitoring five states and 29 cities in the United States–landlords have filed about 386,000 evictions during the pandemic, including an estimated 6,250 filed last week.

In response, governments at the federal, state, and local levels have developed short-term eviction moratoriums and similar measures to help renters keep their homes. But in the long run, eviction proceedings are likely to rise.

Federal, state, and local governments have adopted a variety of temporary emergency measures aimed at helping renters. For example, in September 2020, the U.S. Department of Housing and Urban Development and the Centers for Disease Control issued a nationwide moratorium on evictions. See the Federal Register announcement, since extended, here.  

This moratorium was challenged by real estate groups, but a U.S. Supreme Court ruling this week allowed it to remain in effect through the end of the month. Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., No. 20A169 (June 29); see also analysis at Amy Howe, “Divided court leaves eviction ban in place,” Scotusblog (June 29) (available at https://bit.ly/3xhd74c).  

In addition, Congress allocated $46 billion in rental assistance to struggling renters through the American Rescue Plan Act of 2021 and the December 2020 Covid-19 relief package; much of the relief funding, however, has yet to reach struggling renters. See, e.g., “Emergency Rental Assistance through the Coronavirus Relief Fund,” Congressional Research Service (June 8) (available at https://bit.ly/3Ak9vjX).  See also Kristian Hernández, “As CDC’s Eviction Moratorium Ends, States Prepare for Flood of Cases,” Pew Stateline (June 22) (available at https://bit.ly/3AqTHw2).

Several states and cities–such as Maryland, New York, Vermont, Hawaii, Philadelphia and Washington, D.C.–have adopted eviction bans or limitations. These moratoriums have sharply reduced eviction filings during the extent of the pandemic. 

But eviction restrictions will not remain in place indefinitely. After being extended several times, the federal moratorium is scheduled to expire on July 31. (See the CDC press release on the extension at https://bit.ly/3684qNN.) State and local eviction protections are also expected to end at some point this year. As a result, states and cities are preparing for a potential wave of eviction actions in their housing courts once moratoriums lift.

Some states and local governments have attempted to modify eviction procedures to make the process less burdensome on renters. For example, Maine passed a bill instructing landlords to explain the eviction process, options for legal assistance and rent relief, and eviction notices. Nevada and Illinois each adopted a law requiring courts to seal records of evictions relating to defaults during the pandemic.

One possible solution that could help both the courts and renters adapt to the expected rise in evictions is alternative dispute resolution. These programs aren’t new.  But recently, interest has been heightened due to the pandemic, and many U.S. jurisdictions have turned to ADR eviction programs to encourage tenants and landlords to negotiate.

According to the Urban Institute, as of April, there were 38 ADR eviction diversion and prevention programs nationwide. Mark Treskon, Solomon Greene, Olivia Fiol & Anne Junod, “Eviction Prevention and Diversion Programs,” Urban Institute Housing Research Crisis Collaborative (April 2021) (available at https://urbn.is/3qI9C4j).

The states with programs include California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Ohio, Oregon, Pennsylvania, Tennessee, Texas, and Washington. See https://bit.ly/3xdHMPP, collected by Chicago’s Resolutions Systems Institute.

ADR eviction programs have been successful in several jurisdictions over the past few years. One example is a St. Paul, Minn., housing clinic. Colleen Ebinger & Elizabeth Clysdale, “Justice Served, Housing Preserved: The Ramsey County Housing Court Model,” 41:3 Mitchell Hamline L.J. of Pub. Policy & Practice: Article 10 (2020) (available at https://bit.ly/2V1DaON).

In July 2018, the Ramsey County court—covering part of the Minneapolis-St. Paul area–launched a housing clinic with the target of reducing eviction by 50%  in five years. Eighteen months after implementation, eviction judgments declined, settlements rose, the court trial calendar lightened and expungements doubled.

Another successful eviction mediation program was developed by the Washington University School of Law Civil Rights & Mediation Clinic and the Metropolitan St. Louis Equal Housing and Opportunity Council in St. Louis in 2012. Karen Tokarz, Samuel Hoff Stragand, Michael Geigerman & Wolf Smith, “Addressing the Eviction Crisis and Housing Instability Through Mediation,” 63 Washington U. J. of Law & Policy 243 (available at https://bit.ly/3694AEG).  

In the St. Louis Mediation Project, professional mediators and students provide free mediation services for landlord-tenant cases. In 2018, 71% of pro se landlord-tenant cases mediated by the project resulted in a settlement. More than half of these agreements resulted in a dismissal of eviction proceedings.

There is some evidence that even many landlords support ADR in the eviction context. Last month, the American Bar Association and the Harvard Negotiation & Mediation Clinical Program published a report identifying nationwide best practices to divert eviction filings and enhance housing stability. See “Designing for Housing Stability: Best Practices for Court-Based and Court-Adjacent Eviction Prevention and/or Diversion Programs” (available at https://bit.ly/3yn3FN7).

This research revealed that stakeholders generally supported eviction prevention efforts during the pandemic. More than 70% of the landlords surveyed were willing to discuss tenant non-payment outside of court. 

Report author Deanna Parrish, Clinical Instructor and Lecturer at Harvard Law School’s Dispute Systems Design Clinic, wrote in an e-mail:

Effective eviction prevention and/or diversion programs use a multi-sector and holistic approach to provide parties with a combination of legal representation, quality mediation, cash or rental assistance, and self-help or supportive services. Investing in eviction prevention and/or diversion programs is not just urgent, it is doable. These programs enjoy wide support across landlords, court staff, and tenants. Over 81% of property owners surveyed reported being less likely to pursue eviction if their tenant had access to rental or cash assistance.Court staff and judicial stakeholders reported eviction diversion programs as essential to helping lighten what they described as an “oncoming tsunami” of eviction filings once the CDC moratorium lifts. Tenant advocates have long been calling for legal representation and easily accessible rental and cash assistance, among other interventions, to help increase housing stability. Legislatures and courts should act swiftly to formalize eviction prevention. Doing so would be nothing short of a lifeline for millions of Americans, landlords and tenants alike.

As the Covid-19 pandemic winds down and emergency measures are lifted, alternative dispute resolution eviction programs may soften the blow to tenants as eviction moratoriums end. Although these ADR programs are in the early stages of adoption, there are promising signs that they might help the U.S. economy’s housing segment return to normalcy without significant housing disruptions.

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The author, an LLM candidate, at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

[END]

Highlights from the June Session of the Harvard Law School Program on Negotiation ‘Mediating Disputes’ Training

By Mylene Chan

The Harvard Law School Program on Negotiation conducted a June 7-11 program called Mediating Disputes. This is a recurring course that the program has offered to executives for many years.

About 50 professionals from around the world, including judges, lawyers, business executives, and nonprofit managers attended the sessions taught by Robert Mnookin, Samuel Williston Professor of Law at Harvard Law School, Gary Friedman, of Mill Valley, Calif.’s Mediation Law Offices, and Sausalito, Calif., mediator Dana Curtis.

Mediating Disputes provides training in the non-caucus “Mediation through Understanding” model of mediation that Mnookin, Friedman, and, along with Friedman, co-founder of the Center for Understanding in Conflict, Jack Himmelstein, of New Rochelle, N.Y., have developed and promoted as teachers and practitioners for more than 20 years at the Center of Mediation in Law and the Harvard Negotiation Research Project.

The Understanding Model is a transparent approach in which conflicts are resolved through deepened understanding. This approach eschews the risks of coercion and manipulation potentially present in some other mediation models. 

A distinguishing feature is that all parties work together in a mediation with everyone present. There are no separate meetings and no shuttle diplomacy where the mediator alone has information from both sides. This arrangement eliminates the opportunity for mediators to manipulate information asymmetry. Apart from resolving that ethical dilemma, working together fosters more extensive mutual understanding between the disputants.

The model starts from the foundational belief that disputants should not caucus when conflicts arise and that, in fact, embracing conflicts is often the best opportunity to create value. By staying together throughout the mediation, even when emotions are high, the disputants are forced to vet their underlying interests, allowing the true issues to surface and bring about more nuanced appreciation of each party’s perspective and interest.

Another distinctive characteristic of the Understanding Model is the emphasis on placing ultimate responsibility for whether and how the conflict is resolved on the disputants, not the mediator. It is the parties, rather than the professionals, who ultimately have the best knowledge of what underlies their disputes. Although the intensity of the conflict can obscure their views, the parties hold the key to reaching a resolution of their dispute that best serves them.  When the parties take the lead in resolving the conflict, coercion and manipulation can be eliminated from a mediation, according to the course. 

Mnookin, Friedman, and Curtis presented together during the five-day course. The faculty members engaged the participants in two full mediation stimulations–a personal dispute and a complex business dispute–using the Understanding Model. Each day was dedicated to one of the model’s phases, including contracting, defining the problem and dealing with conflict, understanding law and interests, generating options, and exploring interests and packages.

The faculty demonstrated how each phase should be conducted.  They sent the participants to breakout rooms to roleplay, with guidance and critique, followed by debriefing.  After the day concluded, the three faculty members held office hours for follow-up questions.

The attendees participated in about four hours of simulated mediations using the Understanding Model so they could understand its impact and effect cognitively and viscerally.  

On the final day, the faculty showed a mediation training video produced by the International Institute for Conflict Prevention & Resolution, the host of CPR Speaks, illustrating the caucus model to compare and contrast the different styles. See “Resolution Through Mediation: Solving a Complex International Business Problem” (updated version on YouTube at https://www.youtube.com/watch?v=xTbj-eHwX-w and available from CPR at https://bit.ly/3cFEkW5).

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Reflecting on the processes reviewed in the Program on Negotiation training sessions, Prof. Robert Mnookin noted, “Many lawyer-mediators primarily rely on separate meetings or caucusing for understandable reasons:

(1) it is more comfortable for them because it avoids their having to deal with heated conflict between the parties;

(2) they believe they will be told things in secret that will allow them to create alternatives that facilitate resolution. Besides, many lawyers (who typically select the mediator) prefer it because it gives them more client control.”

“But in my view,” Mnookin continued, “there is far too much reliance on caucusing. The Understanding Model puts the focus on the parties themselves and provides a much greater opportunity for them to take responsibility for helping shape a resolution that may provide a foundation for repairing a damaged relationship.”

Faculty member and Understanding Model developer Gary Friedman noted in an email,  “The model is premised on the idea that the power of understanding is an underutilized power as opposed to the power of coercion, and has the ability to help people find agreements that are more responsive to what’s personally important to them. Understanding in the form of agreements about how the mediation proceeds as well as the ultimate result give the parties control not just over the outcome, but provides them with participation in designing the process as well.”

Faculty member Dana Curtis, like Robert Mnookin, also had misgivings about relying on caucuses in mediation. She stated, “Unfortunately, the caucus model has eclipsed the Understanding Model, especially in recent years. I believe this has occurred for two reasons. Lawyers prize their role as legal adversaries and protectors at the expense of their role as collaborators and problem-solvers. And mediators, especially retired judges and lawyers brought up on settlement conferences, have not acquired the skills and understandings to enable them to offer parties and lawyers an alternative that can lead to a satisfying and meaningful process and, hopefully, resolution, rather than simply a ‘deal.’”

Concluded Curtis: “We would like to change that!”

Details of the Understanding Model can be found at the links above, and in Beyond Winning: Negotiating to Create Value in Deals and Disputes by Robert H. Mnookin, with Scott R. Peppet and Andrew S. Tulumello (Harvard University/Belknap Press 2004).  A mediation training video illustrating the Understanding Model titled Saving the Last Dance: Mediation Through Understanding, with Robert Mnookin and Jack Himmelstein as narrators and Gary Friedman as mediator, is available at the Harvard Program on Negotiation website at https://bit.ly/35hbdEE.  

And for more on recent views of mediation joint sessions and caucusing, see “Decline of Dialogue? Galton, Love & Weiss on Joint Sessions, Caucuses, and the State of Mediation,” CPR Speaks (June 2) (available at https://bit.ly/3daRBGe).

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The author, an LLM candidate, at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

[END]

Claim Forfeited? California Appeals Court Upholds Exclusion of Estate Benefits for Non-Compliance with Court-Ordered Mediation

By Mylene Chan

A recently filed petition for review pending before the California Supreme Court raises a controversial issue regarding the fairness of court actions related to non-compliance with court-ordered mediation.

Breslin v. Breslin, 62 Cal.App.5th 801 (Jan. 26) (available at https://bit.ly/3xI7ige), is a probate case for which a cert petition was filed at California’s top Court on May 6.

The case involves a probate dispute regarding interests in a trust, with potential beneficiaries including 24 charities. The court ordered mediation, but most of the nonprofit groups did not attend. The attending parties reached an agreement.

The opinion notes, “The settlement agreement awarded specific amounts to various parties, including the appearing charities, and attorney fees with the residue to the intestate heirs.” Other non-attending parties were not included.

The probate court approved the settlement and explained that appellants lost their interests in the trust by failing to file responses and objections to the initial trustee’s petition and failing to participate or appear in the court-ordered mediation.

The appellate court upheld the probate court’s decision on the ground that the California Probate Code gives courts discretion to order mediation. “A party receiving notice under the circumstances here, who fails to participate in court-ordered mediation, is bound by the result,” the opinion states.  

The appellants argued that the court’s decision conflicts with existing California laws that are designed to honor a decedent’s testamentary intent, protect beneficiaries, avoid forfeitures, and encourage charitable giving. “Under the label of ‘forfeiture,’ the majority opinion has established what amounts to a terminating sanction for beneficiaries who fail to attend private mediation,” the petition states.

In a reply to the cert petition, Kevin G. Staker and Brandon P. Johnson, of Camarillo, Calif.’s StakerLaw Tax and Estate Planning Law Corp., on behalf of respondent David Breslin, who is the estate’s trustee, argued that the appellants were never vested beneficiaries and lost their alleged rights in the trust because they failed to participate in the court-ordered mediation.

Mark A. Lester, Katherine H. Becker, and Eric A. Hirschberg, attorneys at Jones, Lester, Schuck, Becker & Dehesa in Camarillo, Calif., who filed a brief on behalf of intestate respondents Paul G. Breslin and Kathleen Breslin LaForgia, took a similar position, and also noted that affirming the lower court decisions benefits the trust and estate practice. Respondent counsel Lester indicated in an email with the blog’s author that using mediation early in trust and estate disputes means that the vast balance of the estate gets to the beneficiaries rather than the attorneys. 

The California attorney general submitted a six-page amicus curiae letter in support of the appellants’ request that the state Supreme Court grant review of Breslin. The attorney general argued that the case raises important questions concerning whether a court has discretion to waive a beneficiary’s objections to a petition for approval of a settlement agreement and presents significant policy ramifications.

It is uncertain what trends Breslin would set nationally because Breslin raises several challenging issues, such as forfeiture, due process, cost burdens, and bad faith. For now, it does not appear that New York, for example, would endorse a similarly harsh sanction for non-compliance with court-ordered mediation.

In the past five years, in New York state and federal courts, a court has sanctioned parties for non-compliance only in rare cases. For example, in Workneh v. Super Shuttle Int’l, Inc., 2020 WL 3492000 (S.D.N.Y. June 8, 2020), the court dismissed the case; in Kantor v. Air Atl. Med., P.C., 2020 WL 7130732 (E.D.N.Y. Sept. 23, 2020), the court issued default judgments and recommended monetary sanctions, and in Rice v. NBCUniversal Media, LLC, 2019 WL 3000808, (S.D.N.Y. July 10, 2019), the court imposed a monetary sanction.

These three cases involved egregious behavior–such as repeated violations of court orders in a variety of contexts over the course of two years (responses to discovery requests, refusal to provide authorization, failure to appear as directed), and failure to communicate with the court and opposing counsel for almost a year–warranting serious sanctions. It appears, however, that New York judges might not quickly divest parties of rights for non-appearance as did the California court in Breslin.

If the California Supreme Court accepts Breslin and affirms the lower court rulings, it could signal a shift in the impact and effects of court-ordered mediation. The mediation community, as suggested by the cert petition, is watching closely.  Practitioners will want to monitor the case because of its potential to change the standards applied to parties in court-ordered mediation.

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The author, an LLM candidate, at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

[END]

EEOC (and Congress) Rolls Back ADR Policy

By Cai Phillips-Jones

A new U.S. Equal Employment Opportunity Commission rule affecting the agency’s conciliation process became effective Feb. 16, but was repealed via a Senate resolution last month. The May 19 Senate move signals “disapproval”; In order for the rule to be fully overturned, the House will have to vote on the joint resolution, and it must be signed into law by President Biden.

Passage is likely in House, where it awaits consideration. The conciliation process rule, devised under the Trump Administration, drew fire from Democrats because it required more information in early stages of discrimination complaints to be provided to employers, and critics said that could spark retaliations.  Republican supporters said the process supported settlements. See, e.g., Daniel Wiessner, “Senate votes to repeal EEOC settlement rule that ID’ed bias victims,” Reuters (May 19) (available at https://reut.rs/3wcIYCG).

Conciliation is a mediation-like process that aims to increase the speed at which EEOC complainants get relief. Conciliation is conducted by an EEOC investigator rather than a third-party mediator, and takes place after the agency has found evidence of discrimination.

The new rule required the EEOC to share the factual and legal basis of any findings of discrimination with employers about findings of discrimination during the conciliation process. The rule aims to increase the transparency of the conciliation process by providing the employer with more information about their potential liability.

The rule has been viewed as a rollback of the Supreme Court decision in Mach Mining v. EEOC, 575 U.S. 480 (2015) (available at https://bit.ly/2TmuMZg), which limited the amount of information employers received about EEOC discrimination findings.

The Senate vote to overturn the new conciliation rule is the latest example of EEOC rules changing since the Biden administration took office. In addition to this rule change, a conciliation pilot program was ended earlier than expected, in January. The pilot program made a small change to the existing EEOC program by mandating that settlement offers be shared with “appropriate levels of [EEOC] management” before being shared with the respondent.

In January, the EEOC also ended a mediation pilot program, which expanded the use of mediation to additional case types and during more phases of the EEOC administrative process. The mediation pilot program was announced on July 7, 2020, and was originally scheduled to run for six months, ending in January 2021. On Jan. 6, the pilot was extended until September, 2021. But the EEOC reversed course weeks later, and under new Biden Administration EEOC leadership, ended the program on Jan. 27.

In addition to expanding the availability of mediation, the pilot program also increased the use of video-conferencing mediation and electronic feedback from mediation participants. The video conferencing and electronic communication elements will be carried forward from the pilot program, as will the ability for parties to request a mediation at any point during the EEOC process.

It appears that the only major part of the pilot not being continued is the expansion of mediation to additional case types. EEOC cases are individually evaluated for referral to mediation. Some case types, however, including class and systemic charges, have historically been exempted from mediation referrals. During the pilot, these exemptions were suspended. The end of the pilot likely signifies a return to exempt status for these cases.

In the Jan. 27 press release terminating the previously extended pilot but noting the popularity and success of EEOC mediation, the new EEOC Chair, Charlotte A. Burrows, endorsed the continuing use of mediation and conciliation when appropriate. “I strongly support the prompt and voluntary resolution of discrimination charges whenever doing so is consistent with our mission,” she noted in a statement in the release, adding, “The Commission will continue to strengthen its conciliation and mediation programs in accordance with the overarching goal of preventing and remedying discrimination in the workplace.”

Burrows was critical of the pilot program’s implementation by predecessor chair Janet Dhillon. As an EEOC Commissioner last July, Burrows, noting that the program hurt the agency’s traditional enforcement role, said that Chair Dhillon “lacks authority to institute this sweeping change unilaterally, because it contradicts policy formally approved by a Commission vote.” See Paige Smith, “EEOC Alters Mediation Process Under New Temporary Program,” Bloomberg Law (July 7, 2020) (available here).

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The author, a J.D. student who will enter his third year this fall at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

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Decline of Dialogue? Galton, Love & Weiss on Joint Sessions, Caucuses, and the State of Mediation

If the point of mediation is to get parties together to discuss and thereby resolve their problems, why is the distinct trend to keep the parties apart?

The cover story in the new June issue of Alternatives to the High Cost of Litigation presents a survey that shows how caucuses predominate and joint sessions are declining in mediation practice. 

The authors–veteran leaders in the profession—are Eric Galton of Lakeside Mediation Center in Austin, Texas; Lela P. Love, a law professor and director of the Kukin Program for Conflict Resolution at New York’s Benjamin N. Cardozo School of Law, and Jerry Weiss, founder of MediationInc, based in Shaker Heights, Ohio.

The authors join us in the YouTube video above to discuss their research.  Please like and share it at the YouTube link or below on Twitter, Facebook, and LinkedIn.

In their Alternatives article, “The Decline of Dialogue: The Rise of Caucus-Only Mediation And the Disappearance of the Joint Session,” 39 Alternatives 89 (June 2021), the authors chart the regional differences in the use of joint sessions and so-called phenomenon of “mediation without dialogue,” and use an example of how joint sessions can be deployed to reduce the conflict that caused the dispute.

Alternatives is available here to CPR members who are logged into the CPR website.  Subscription information is available at altnewsletter.com.

[END]

Mediation Confidentiality: Misconceptions, Pitfalls and Best Practices

By Temitope Akande

CPR’s Mediation Committee presented Los Angeles mediator Jeff Kichaven on the limits of mediation confidentiality at a March 16 online program that provided attendees with cutting-edge and occasionally controversial practice guidance on confidentiality, and avoiding neutrals’ liability disclaimers, as well as ethics continuing legal education credits.

Kichaven began his presentation with a statement he attributed to the late U.S. Supreme Court Justice Antonin Scalia in 2003:

The principle of separation of powers is central to the American system of government. The framers of the American Constitution believe that that principle, as popularized by Montesquieu, was the single most important guarantee of freedom. No political truth, wrote James Madison in the Federalist Papers, is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.

Kichaven continued, “For the separation of powers regime to work, we must have a robust and functioning judiciary, as well as executive and legislative branches to our government, and for that to happen it’s necessary for people to have confidence in the judiciary.”

That’s why we have the “basic rule of evidence everywhere–all relevant evidence is admissible,” Kichaven explained. If parties and advocates want courts to get things right, he said, the courts need to have the relevant evidence before them, and anytime court does not get a case right, it is eroding a key element of the law.

While evidence law recognizes certain privileges, which frustrate courts’ abilities to get relevant evidence, “those privileges serve important societal purposes,” he said, which is critical, for example, for the functioning of lawyers, doctors and clergy in their critical professions.

Kichaven explained that Wigmore’s attorney-client privilege—the prevailing standard in law and practice protecting communications—”construe[s] privileges narrowly, no more broadly than necessary to effectuate their purposes, because every time privileges are asserted, a court is deprived of relevant evidence, [and] it becomes less likely that a court will get a decision right.” So, a key element of the rule of law is eroded every time a court is unable to adjudicate a claim properly.

This led to the discussion of what Kichaven called “the mantra that confidentiality is necessary for effective mediation.” Kichaven emphasized the word “mantra” because he opined that there is no evidence to support the assertion the confidentiality is necessary for effective mediation.

He defined confidentiality for the purposes of the session in three ways–

  • Evidentiary confidentiality: “Can courts compel disclosure of what is said or done in mediation as part of discovery or trials?”;
  • Caucus confidentiality: “People say things to mediators in caucuses and mediators agree not to disclose those things to the opposing parties,” and
  • Societal confidentiality: “Are we allowed to talk to reporters, bartenders neighbors and various others about what people say or did in mediation?“

On caucus confidentiality, he said that it assumes people disclose secrets, and mediators keep them confidential. The two parts of the assumption are problematic in commercial cases, he said, because it is rare that parties volunteer weaknesses in their case of which the other side is not aware because “there is always a greater than zero percent chance that the mediator will leak” those secrets.

Kichaven said, “The best way to keep it a secret is not to tell the mediator in the first place.  . . . And also, let’s face it, mediators often leak. We can’t help it.” He discussed subconscious actions and words that result in mediator leaks.

Societal confidentiality is a problem in product liability and sexual harassment cases, among others, said Kichaven, because it is generally a subject to be covered by statutes. Still, legislatures haven’t imposed societal confidentiality as a condition of participating in settlement talks or mediation, he explained, but some mediators put it into their confidentiality agreements.

“In essence,” he said, “the mediators are conditioning their willingness to serve on people forfeiting rights that legislators wanted them to have, or at least allowed them to have. [T]hey are having people waive those rights, a condition of serving as mediator.”

Kichaven discussed at length evidentiary confidentiality, which was his key focus in the CPR seminar.  He stated that there is no evidence to prove that evidentiary confidentiality is necessary for effective mediation. In support of this assertion, he discussed the California Legislature’s request to the state’s Law Revision Commission to evaluate a possible exception to California’s mediation confidentiality law for legal malpractice that is alleged to have occurred at a mediation.

The exception—which is in the Uniform Mediation Act but which California has not adopted–would have allowed the introduction of mediation evidence from the session to back a legal malpractice claim. The mediation establishment, according to Kichaven, failed to produce any evidence to prove that evidentiary confidentiality actually is necessary to conduct effective mediation. If the evidence existed, he said, nobody was in a better position to deliver it.

He further stated that U.S. jurisdictions largely reject the need for evidentiary confidentiality in mediation, and compared the adoptions of the Uniform Mediation Act. The act is “kind of a failure,” he said, noting its adoption in only 11 states and the District of Columbia.

Neither has the act fostered “mediation tourism,” he said. If statutory confidentiality were necessary for effective mediation, there would be more mediation in states that have the statutory confidentiality, Kichaven maintained, adding, therefore, “this concern about confidentiality is just overblown.”

In In re MSTG Inc., 675 F.3d 1337 (Fed. Cir. 2012) (available at https://bit.ly/3tX8rP8), the appellate court was asked to adopt a settlement communication privilege as a matter of federal common law, which Kichaven said would far exceed the protections of Federal Rule of Evidence 408, Compromise Offers and Negotiations.  The circuit court, he reported, held that “while there is clearly an important public interest in favoring the compromise and settlement of disputes, disputes are routinely settled without the benefit of a settlement privilege. It is this thus clear that an across-the-board recognition of a broad settlement negotiation privilege is not necessary to achieve settlement.”

Kichaven repeated that parties do not conduct mediation “tourism” to take advantage of statutory confidentiality like litigators may do when the laws would be to their advantage. That is, litigators do not react to the statutory confidentiality, privilege, or rules in mediation like they might in other areas, like patents.

Kichaven discussed two cases, People v. PriceWaterhouseCoopers, 150 A.D.3d 578 (2017), and GE Company v. APR Energy (see discussion below). He noted that the first case is a complex financial matter, important to the mediation confidentiality issue, because the process and analysis has gotten much more complicated with many mediations conducted with interstate parties–with parties and advocates often living and practicing law in different states.

He focused on the PriceWaterhouseCoopers case in part because of its New York origin, noting that New York is important to commercial litigation and mediation, making it a likely site of problems.  And “New York law is kind of a mess, and it’s not a mess that favors mediation confidentiality,” he said.

In the case, the New York court applied the forum law—which does not include a statutory accountant-client privilege, in contrast to the law where the contract took place, Texas.

This led Kichaven to discuss of the 1934 and 1971 Restatement of Conflict of Laws. The 1934 restatement provides for the territoriality test–courts are to apply the law of the forum where discovery was sought in cases where there are conflicts regarding evidentiary privileges and confidentiality, regardless of where the communications took place.

But the American Law Institute’s second restatement in 1971 replaced the territoriality tests with the “significant relationship test,” where courts are supposed to apply the state privilege law with the most significant relationship to the communications at issue. Generally, said Kichaven, that’s thought to be the state where the communications took place.

Therefore, courts have a motivation to do justice in the case before them, and want to get relevant evidence to do their jobs, Kichaven explained.  That means, he said, they are inclined to pick the law of whatever state gives them the greatest ability to obtain evidence while conducting the mediation, which puts the mediation communications at risk.

The important point from General Electric Co. v. APR Energy PLC, 19-CV-3472 (VM) (KNF) (S.D.N.Y. Dec. 14, 2020) (available at https://bit.ly/2PdF9Nc), is territoriality. New York courts will not automatically apply the privilege or confidentiality law of the place where the mediation took place. That is, a written confidentiality agreement in a prior mediation may not protect a party even if the prior mediation took place in a state with stronger statutory protection for mediation confidentiality.

The result is that a New York court may compel production of materials from a prior mediation upon request in a New York matter, Kichaven said, potentially even using a general evidentiary relevance standard under FRE 26, rather than a heightened mediation “standard of need.” That could occur in New York, he said, even if the state the mediation occurred in had a higher standard of protection and even if there was a confidentiality agreement between the mediation parties.

Kichaven warned that when there is a breach of confidentiality, a mediator could be sued for ordinary negligence, negligent misrepresentation, or perhaps more severe claims on basis that the neutral induced or allowed clients to be more candid than they otherwise would have been.  So, since confidentiality may not protect mediators, it is problematic in terms of whether mediators should promise mediation confidentiality at all because they are not promises mediators have the power to keep, he said.

As an ethical issue, mediators and lawyers are not supposed to make guarantees to clients on the outcome of judicial proceedings. “But,” explained Kichaven, “when you make that airtight [mediation] confidentiality promise, is that not just precisely what you have done? . . . By so doing you’ve misled your clients as well and that’s a potential ethical issue, too.”

Advocates need to inform their party-clients on the potential persistent use of the territoriality test, said Kichaven, and decide on how candid they should be during the mediation. For these reasons, Kichaven disclosed that he does not use written mediation confidentiality agreements in order to avoid the appearance of making promises to mediation parties, or practicing law via the production of a contract that applies to the rights of both sides. “It’s up to the parties to have the kind of confidentiality agreements that suit them best,” said Kichaven.

Finally, Kichaven advised that the best practice is for mediators to ensure that they do not get sued based on a prospective waiver of liability.  He said to avoid the use of such clauses in confidentiality agreements—that is, the waivers are another reason not to provide a confidentiality agreement.

He noted that the typical clause says, “The mediator shall have no liability for any act or omission in connection with this mediation.”  Said Kichaven, “It’s a cowardly act,” something mediators would do to avoid the consequences of their conduct.  

He stated that the liability waiver is really saying that, as a mediator, “We are announcing to the world that we are lowering our ethical standards.  . . . We should be sending the message that we stand behind the quality of our work and that we want you to be compensated and treated fairly in the unlikely event something goes wrong.”

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CPR members can access the full video here after logging in.

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Akande, who received a Master of Laws in Alternative Dispute Resolution last May at the University of Southern California Gould School of Law in Los Angeles, is volunteering with the CPR Institute through Spring 2021.

CEDR’s Eileen Carroll: Her Mediation Story

By Antranik Chekemian

F. Peter Phillips, director of New York Law School’s Alternative Dispute Resolution Skills Program, welcomed an online audience earlier this month as part of the program’s long-running lunchtime speaker series for a session with veteran U.K. mediator Eileen Carroll.

Carroll is founder of London-based Centre for Effective Dispute Resolution, better known as CEDR, “by far the most influential and prescient dispute resolution organization not only in the U.K., but really . . .  in Europe,” said Phillips in the introduction to the Feb. 10 session, which had about 40 attendees.

Phillips invited Carroll to share her professional background and how her journey into the ADR world started.  Carroll opened describing, among other things, a long history with the publisher of this CPR Speaks blog, the International Institute for Conflict Prevention and Resolution, and recounted some of those interactions over these years.  [Phillips is a former CPR senior vice president.]

She said she was a senior litigation partner at a London law firm in the 1980s, with “good contacts” in the U.S., and she took a six-month secondment to San Francisco.  “I was one of the senior litigation partners and they asked me whether I would go and work with a firm on the west coast,” she said, “and I took myself off to San Francisco.”

She said that she decided her focus would be alternative dispute resolution. “I learned a bit about mediation from some of the research I had done, and I thought that would be my project,” she said. She noted that she was impressed by how the mediation process “extracted people from the drama of litigation.” Carroll explained:

I then was given a book called The Manager’s Guide to Resolving Legal Disputes by Henry and Lieberman.  . . . Jim Henry, based in New York, who had started . . .  CPR. He became a very dear friend, and I was going to write a book, but someone gave me his book . . . and I decided when I read that I was really fired up to do something.

James F. Henry is founder of CPR, and Jethro Lieberman is a former CPR vice president and a retired New York Law School professor.

Carroll showed the audience an article she wrote stemming from her U.S. work, “Are We Ready for ADR in Europe?” International Financial Law Review 8 Part 12, 11 (1989).

The article’s title, she said, “was a question no one had asked, and I was determined that we were going to be ready for ADR in Europe. But I knew […] that I needed to do something to get a support behind me, so I set about founding a nonprofit organization.” She added, “I did get inspiration from Jim [Henry].”

She added, “By the time we launched CEDR, I had managed to get with the help of others–80 big companies to support the idea–[and] the major law firms in London didn’t want to be left out, so they thought they better support the idea.”

Philips jumped in and mentioned that CEDR’s story was similar to the CPR Institute’s origin in the U.S. “It wasn’t as if the idea was ‘Let’s take mediation and convince people of it’ so much as it was ‘Let’s take a core of leading owners of disputes–leading corporations, people who spend a lot of money litigating–and convene them so that they become the torchbearers,” said Phillips, adding, “They became the people who are convincing their peers.”

Carroll said that the ties to North America in her work continues, citing current work with the International Academy of Mediators. [CPR and CEDR continue to collaborate on seminars and trainings. Information on the next scheduled joint training–a four-day advanced mediation skills training seminar that begins April 19, in which the organizations will be joined by the Silicon Valley Arbitration & Mediation Center, is available on CPR’s website here.]

Philips asked Carroll about the role of emotion in commercial mediation, noting “the challenge to determine the extent to which . . . the expression of emotion in a commercial context is helpful.”

Carroll said, “In every conflict, there is emotion–people are upset in some way or other. Whether it’s because they have been avoiding it, whether it’s anger, whether it’s anxiety, all of those emotions I find present, and they display themselves in different ways, because we all have different kinds of personalities.”

She stressed the importance of “creating an environment where people can tell whatever their story is.” She stated that a mediator’s job is not to patronize but to notice the parties’ emotions and feelings, and explore them at the right moment with the right questions.

Carroll further emphasized that there is not a uniform approach in mediation. “There may be several working sessions with different people,” she said, “so to deal with these emotions, you have to go at it carefully without too many assumptions and create the space to get to know the people that you’re going to work with.”

Phillips then asked Carroll about the challenges women encounter in ADR. “When you were a practicing lawyer, you were very frequently the only woman in the room,” he said, “In the early days of ADR, you were very frequently one of the very few women who was making a go of it,” he said.

She emphasized that because law firms usually advise their clients during the mediator selection process, “they often follow the same kind of pattern of three names.” She expanded:

When l look back to the beginning of the field when we first started, . . . there was just a sense that we need people with status, people with experience, so at that point people were kind of looking to, ‘Who were those senior people?’ And the legal profession, even in the early 90s, a lot of those people were men. It is changing. But . . . those who were early entrants to the field obviously got . . . a reputation. [If they] were good mediators and good arbitrators who were around in the mid-90s, some of those people still have incredibly effective practices today.

Phillips then asked Carroll about a recent CEDR report that discussed “how female mediators view their strengths as opposed to how male mediators view their strengths.” [CEDR’s current research can be found here.]

“[W]omen recognized that they were good at relationships and empathy,” said Carroll, recalling the research, “and a lot of guys obviously have that experience, but . . . a lot of the men saw themselves as more as getting the deal done, much more transactional.”

Carroll then referred attendees to a Simon Baron-Cohen’s 2012 book, “The Essential Difference: Men, Women and the Extreme Male Brain, which discusses these issues.

“Women do have some very natural abilities in relation to communication skills and they have done work with babies, boys, and girls . . . and the way they react.  . . . So, women have a lot of natural skill in the area of mediation which I think sometimes they underplay because if you look at in life, women often have the role of having to make . . . all the relationships work within a family, sometimes in an office,” said Carroll.

Emphasizing the need for diversity, she concluded, “Women absolutely have the capability to do any tough mediation, because they have got the intellectual skill, they understand the background of the problem. There is no reason why there could not be as many successful commercial women mediators as men. I think it’s something about the filter of the selection process, which I think is changing.”

“All the business people I have worked with through the years in mediation, I have never had a problem,” said Carroll.  “Over time,” she continued, “I have never . . . felt any concern in dealing with business people about the role of the woman mediator. Never. I would not say that was always the case in relation to certain members of the bar.  . . . I have always managed to walk around it. It hasn’t been a problem.”

She concluded her presentation discussing instilling “patience and persistence” into mediation to make it successful.

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Eileen Carroll’s presentation is archived at the NYLS ADR Program link above and directly on YouTube here.

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The author, a second-year student at New York’s Benjamin N. Cardozo School of Law, is a CPR 2021 intern.

[END]