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ADR on My Mind in Georgia 8 April 5-8, 2006

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ADR on My Mind in Georgia 8 April 5-8, 2006
ADR on My Mind in Georgia
8th Annual ABA Section of Dispute Resolution Spring Conference
April 5-8, 2006
Hyatt Regency Atlanta Hotel
NOTE: The session times listed are tentative. This schedule is updated weekly.
Series A: Thursday, April 6
1 – 2:30 PM
A
1
Olympic Dispute Resolution Process
John A. Sherrill, Seyfarth Shaw LLP, Atlanta, GA
Howard L. Jacobs, Forgey & Hurrell LLP, Los Angeles, CA
Jeff Benz, United States Olympic Committee, Colorado Springs, CO
Travis T. Tygart, United States Anti-Doping Agency, Colorado Springs, CO
Michael Lenard, Paladin Realty Partners LLC, Los Angeles, CA
The United States Olympic Committee (USOC) is a federally chartered corporation under the Ted Stephens Olympic and Amateur
Sports Act, 36 U.S.C. § 220501, et seq., which provides that the USOC "shall establish and maintain provisions in its constitution
and by-laws for the swift and equitable resolution of disputes," involving grievances by athletes and disputes involving the
opportunity to participate in the Olympic games. This panel will describe the dispute resolution procedure that has been created by
the USOC under this enabling legislation, which procedure involves a process of negotiation and then mediation, and then,
ultimately, arbitration; as well as the dispute resolution procedures for the Court of Arbitration for Sport, which is the dispute
resolution body that addresses all disputes arising at the Olympic Games. The panel will consist of Jeff Benz, General Counsel of
the USOC; John Sherrill of Seyfarth Shaw LLP in Atlanta, who has been on the USOC arbitration panels for all Olympic games
since the Atlanta Olympics in 1996; Howard Jacobs of Forgey & Hurrell in Los Angeles, California, who regularly represents athletes
in this process; Travis Tygart, Associate General Counsel of the US Anti-Doping Agency, the agency that is in charge of doping
disputes involving athletes; and Michael Lenard, of Los Angeles, California, who is a member of the International Council on
Arbitration in Sports (ICAS) which administers the Court of Arbitration for Sport. The panelists will discuss the mechanics of the
USOC and ICAS dispute resolution processes, and, to the exent allowed by the rules of confidentiality, the resolution of specific
high-profile cases that illustrate how these processes have been utilized in those cases.
A 2
Cross Cultural Negotiation and Mediation: Lessons Learned from Calvin and Hobbes
Frank Rowland, Chief Dull Knife College, Northern Cheyenne Reser, Lame Deer, MT
Katherine Lusse, Division of Educational Research & Services & Mon, Missoula, MT
Art Lusse, University of Montana School of Law, Missoula, MT
At the 2002 ABA Conference in Seattle we presented the highly acclaimed “Everything I Know About Interpersonal Communication
& Mediation I learned from Calvin & Hobbes”. This presentation utilizes the cartoon artistry and philosophy of Bill Watterson to
present and portray diversity issues for discussion through “Calvin & Hobbes”. The presenters are all consultants to the Division of
Educational Research & Services (DERS) at the University of Montana. DERS has been collaborating with Montana’s Indian
Reservations for the past 10 years on numerous programs and activities from mediation and restorative justice projects to trauma
services partnering with numerous private, state, and federal agencies including the U. S. Department of Education and Department
of Justice.
A 3
The Consulting Attorney as Chameleon: Adapting to the Landscape of Family ADR Practice
Michelle Katz, Los Angeles, CA
Frederick J. Glassman, Mayer & Glassman Law Corporation, Los Angeles, CA
Randall M. Kessler, Kessler Schwarz, PC, Atlanta, GA
Paula H. Noe, Bowman, Moos, Elder & Noe, Cambridge, MA
Paul D. Pearson, Sullivan, Oliverio & Gioia, LLP, Buffalo, NY
With more and more divorcing couples seeking alternative dispute resolution rather than traditional litigation, the role of the
consulting attorney is evolving. The panel will discuss the adaptation of the family law consulting attorney to his/her function in
mediation, collaborative law and in the provision of unbundled legal services. In comparing and contrasting the various forms of
ADR practice and their “hybrids”, the panel will also explore the levels of client participation in the negotiation process and the
reciprocal role of his/her attorney, whether actively participating or acting in a more limited advisory capacity.
A 4
Mediating Construction Defects – If You Don’t Know Insurance Issues, Don’t Try
Tony Tortorici, American Safety Insurance Services, Inc., Atlanta, GA
John Bickerman, Bickerman Dispute Resolution, PLLC, Washington, DC
Ken Bloom, Gartner, Bloom and Greiper, P.C., New York, NY
Charles Stauber, Philadelphia, PA
Vicki F. Blaich, AIG, P & C Severity, New York, NY
Mediating construction defect cases requires understanding basic concepts of insurance coverage because carriers are almost
always the parties that fund a settlement. Come learn from insurance representatives basic coverage concepts and what they look
for in mediators. Because of the inefficiency of litigating these large, complex cases, construction mediation is a growing area of
practice for many mediators. To be effective, mediators need the tools to do the job effectively. This program will provide the basics
and help mediators learn how to market themselves.
A 5
What is the Energy Buzz? Use of ADR in One Industry and Lessons for Others
P. Jean Baker, American Arbitration Association, Washington, DC
Barrett Hawks, Center for Public Resources and Sutherland, Atlanta, GA
Robert Wax, Charter Resolution LLC, West Hartford, CT
Robert S. Fleishman, Center for the Advancement of Energy Markets, Washington, DC
Steven A. Shapiro, Federal Energy Regulatory Commission, Washington, DC
Duncan Ross MacKay, Northeast Utilities, Berlin, CT
Jeffrey Stockholm, NYS Public Service Commission, Albany, NY
A diverse group of energy ADR professionals will discuss their experiences and opportunities; stories both personal and institutional
in using ADR methodologies. Representatives from the Federal Energy Regulatory Commission; the New York State Public Service
Commission; Northeast Utilities; the American Arbitration Association; the Center for Public Resources; the Center for the
Advancement of Energy Markets and independent professional mediators and arbitrators are teaming up to discuss what has
contributed to the growing success of using ADR in the energy field; and why have evaluative methods such as Early Neutral
Evaluation; Evaluative Mediation; Arbitration; and the use of Settlement Judges worked so well. Attendees who have subject
matter expertise in other industries who would like to leverage the energy fields’ success, are encouraged to attend; as are general
ADR practitioners who might be interested in teaming with technical experts as a way of working within this field.
A 7
When Generations Collide in the Workplace:
A Workshop for Managers of the 21st Century Workforce
Kimberly Y. Beg, Federal Mediation & Conciliation Service, Washington, DC
Eileen Hoffman,
Jennifer Ortiz, Federal Mediation & Conciliation Service, Washington, DC
This is a workshop for managers and supervisors of a multi-generational workforce, which include Veterans, Baby Boomers,
Generation X, and Millenialls. This interactive session will provide tools to enable managers to understand the various viewpoints
held by individuals from different generations and develop insights into better management practices. The session will highlight why
individuals identify with a certain generation and also why those groups clash over issues like promotions, alternative work
schedules, training, etc. Information on the definitions of each generational group will be provided and work groups will focus on
communication strategies and work incentives for increased productivity and creating high work morale. This interactive session will
encourage self reflection and feature ways to handle generational differences in the workplace, in families, and other organizational
settings.
A 8
Performance and Results: Report to the President on ADR in Federal Departments and Agencies
Richard Miles, Federal Energy Regulatory Commission's Dispute Resolution Service, Washington, DC
Cynthia S. Mazur, Federal Emergency Management Agency/ DHS, Washington, DC
Anthony Palladino, Federal Aviation Administration, Washington, DC
Linda Cinciotta, U.S. Department of Justice, Washington, DC
The Attorney General is the Presidentially-appointed leader of federal ADR and is responsible for submitting periodic reports about
federal interagency efforts to promote greater use of ADR. The initial report on federal ADR was submitted to the President in 2000.
The U.S. Department of Justice, working with the Interagency ADR Steering Committee and the interagency ADR working group
Sections (Civil Enforcement and Regulatory, Claims Against the Government, Contracts and Procurement, and Workplace) is
working on the next report. The first step was to obtain ADR program, performance, and results information from the agencies, and
a survey to elicit that information was distributed throughout the executive branch of the federal government in the summer of 2005.
The data obtained will be used to prepare a report which the Attorney General can submit to the President in 2006, on the current
state of federal ADR throughout the executive branch. The report will highlight accomplishments such as: making dealings with the
government easier, cheaper, quicker, more comprehensible; facilitation of better performance measurement and decision-making;
and increased productivity of the workforce. The report will also discuss trends in the ADR practice areas and challenges facing use
of ADR by the federal government.
A 9
Practical Ethics for Mediators
Charles Pou, Charles Pou Dispute Resolution Services, Washington, DC
Roger Wolf, University of Maryland School of Law, Baltimore, MD
Mary Thompson, Corder/Thompson & Associates, Austin, TX
Kimberlee Kovach, South Texas College of Law, Austin, TX
Ellen Waldman, Thomas Jefferson School of Law, San Diego, CA
The session will address a recent trend toward developing materials and activities that offer concrete help for mediators who need to
analyze and handle ethical dilemmas they face, as well as for trainers interested in improving the ethics education they offer.
The session will describe several of these efforts in detail, and discuss how such activities can serve to improve the field, especially
in light of the recent revision of the Joint Standards of Practice for mediators. Participants will compare (and contrast) these
initiatives to grievance committees, detailed codes, and existing regulatory or “command and control” approaches to encouraging
ethical behavior. The session will be interactive and involve one or more role play exercises; they will provide time for substantial
audience participation and questions. Topics will include:
•
The new ACR ethics education website, developed by Mary Thompson,
•
The ABA’s recently completed Guide to Federal ADR Confidentiality offering analysis and advice to assist
administrators and neutrals on dealing with confidentiality day-to-day,
•
The new Maryland Program for Mediator Excellence’s innovative ethics education and mediator support initiative, and
•
The forthcoming Practical Ethics for Mediators volume by Ellen Waldman and Charles Pou.
A 10
Expanding Your Practice through Innovative ODR Applications: From International Peacebuilding to Virtual
Lawyering
Jeffery M. Aresty, Internet Bar, Boston, MA
Deborah Miller-Moore, American Arbitration Association, Charlotte, NC
Susan Summers Raines, Center for Conflict Management, Kennesaw State University, Kennesaw, GA
Technology is increasingly being used as a medium through which dispute resolution services are offered. This panel examines a
range of these applications, including the development of a “virtual bar association”, the resolution of commercial disputes across
international boundaries, post-conflict peacebuilding in war torn regions, and innovative applications by the American Arbitration
Association. There are very few limits to the application of ADR through new technologies, with neutrals and advocates finding new
ways to apply their skills in the service of their clients and dispute resolution in a wide range of geographic and substantive areas of
practice.
A 12
Mediating Death and Profound Injury Cases
Robert Creo, Duquesne University School of Law, Pittsburgh, PA
Jerome F. Weiss, Mediation Inc., Cleveland, OH
Rita Maimbourg, Tucker Ellis & West, Cleveland, OH
Michelle Obradovic, Wise Resolution LLC, Birmingham, AL
Wendy Hawbaker, Ashtabula County Joint Court Mediation Project, Jefferson, OH
Death and serious injury cases, ranging from motor vehicle accidents and work place accidents to medical malpractice matters,
comprise a significant portion of disputes being resolved in mediation. Despite considerable interest, there are, unfortunately few
courses or programs for mediation offered that specifically deal with these areas. The unique methods and issues related to such
disputes and their resolution will be the topic of this interactive workshop. The presenters, all individuals with considerable
experience in resolving these kinds of disputes will discuss, role play and challenge on an array of topics including risk of evaluative
techniques, institutional obstacles, impasse breaking, multi-party resolution, insurance issues, reality testing, evaluation of risk and
apportionment of responsibility/liability when there are multiple defendants.
A 13
Mediation and Malpractice
Mel Rubin, Coral Gables, FL
Robert Badgley, Lord, Bissell & Brook LLP, Chicago, IL
Believe it or not, malpractice claims filed against mediators and (arbitrators) are on the rise. Most people believe that
mediators are rarely sued, so there is no need to worry. But with more and more cases going to mediation, more ethical rules in
place and an increase in malpractice claims, we need to be better prepared. What are danger zones? What are the issues that
cause parties to file complaints? Learn from counsel who defend mediators and from a seasoned mediator to discuss these
important issues.
A 14
Considerations in Selecting a Mediator-An In-House Perspective
Peter Michaelson, MICHAELSON & ASSOCIATES, Red Bank, NJ
William Plybon, Coca Cola Enterprises, Inc., Atlanta, GA
Teri Plummer McClure, United Parcel Service, Atlanta, GA
Phillip Armstrong, Georgia-Pacific Corp., Atlanta, GA
Deborah Winegard, Medical Association of Georgia, Atlanta, GA
Jennifer R. Williams, Unisource Worldwide, Norcross, GA
Whether or not mediation succeeds is largely dependent on the mediator selected. This program will explore issues considered by
in-house corporate counsel when selecting a mediator. Costs, subject matter expertise, availability, track record, reputation and
similar selection criteria, both pro and con, will be discussed. In short, what are the most important considerations in mediator
selection?
Series B: Thursday, April 6
2:45 – 4:15 PM
B 1
Arbitration Update: RUAA, Disclosure and Diversity Jurisdiction
Paul Lurie, Schiff Hardin LLP, Chicago, IL
Dana Tait Sandlin, Advanced Solutions, LLC, Summerville, SC
Tina Patterson, Euless, TX
Join in an interesting analysis and discussion of important and timely issues that will shape the way that arbitrations are handled in
the future.
The Revised Uniform Arbitration Act has been adopted in 10 states (at the time the proposal was submitted). It significantly affects
the availability of pre-hearing discovery and the subject matter jurisdiction of arbitrators as compared to courts. Because of these
and many other differences from the UAA and the Federal Arbitration Act, choice of law issues take on a new significance.
The ethical cannons pertaining to arbitration recognize the necessity for arbitrator disclosure to maintain the integrity of the arbitral
process. Should parties proffer disclosure or may the failure to disclose be used as grounds for vacatur of the award? What is the
extent of disclosure for arbitrators who handle various types of disputes (e.g. collective bargaining versus commercial)?
A new ruling made in Discover Bank v. Vade in Jan of 2005 (4th cir.), has created a clear split of authority in the federal appellate
courts, which may encourage review by the Supreme Court in coming months. The Fourth and Eleventh Circuits agree that parties
in dispute must look to the diversity jurisdictional requirements of the underlying case issues to determine if they have jurisdiction in
federal court under Section 4 petitions of the FAA.
Formerly, the Second, Fifth, Ninth and Six Circuits have taken the stand that a federal question would never form the basis of
jurisdiction because an issue of federal would not be apparent on an arbitration petition. The Westmoreland doctrine (2nd Cir.) has
been criticized by many in the arbitration field.
B 2
"IMPROVISATIONAL NEGOTIATION” – Mediators Tales of Love, Anger, Money---and the Strategies Used To
Resolve Them
Tracy Allen, Southfield, MI
Eric Galton, Lakeside Mediation, Austin, TX
Jeffrey Krivis, Encino, CA
Patrick Nichols, Topeka, KS
This program will coincide with the release of my new book of the same name. We will include creative and useful improvisational
techniques combined with interactive discussions about creating turning points that help move cases toward settlement.
B 3
Dispute Resolution of Elder Care Issues: Lessons from the Trenches and Recommendations for Future Use
Penelope Hommel, The Center for Social Gerontology, Inc., Ann Arbor, MI
Janice Barrocas, The Center of Social Gerontology, Inc., Decatur, GA
Natalie Thomas, Georgia Division of Aging Services, Atlanta, GA
Eleanor Crosby Lanier, The Center for Social Gerontology, Inc., Athens, GA
This session will present lessons from The Center for Social Gerontology’s (TCSG) more than ten years as a pioneer in the use of
mediation and other conflict resolution techniques to address elder care disputes and issues in areas including adult guardianship
mediation, family and elder care decision making, and long-term care disputes. We will also present recommendations for the future
from a ground-breaking summit on elder care mediation hosted by TCSG and attended by national elder care mediation pioneers.
B 4
Neutral Experts and Standing Neutrals; Using Substantive Expertise to Assist in Dispute Resolution
C. Allen Gibson, Jr., Buist, Moore, Smythe & McGee, P.A., Charleston, SC
Robert S. Glenn, Hunter, Maclean, Exley & Dunn, P.C, Savannah, GA
The presentation will cover: the use of neutral experts to assist the mediator who may be lacking in substantive expertise; the
technique of mediating with opposing experts to try to eliminate sometimes unresolvable issues at mediation; and the use of dispute
review boards and their underutilized offspring, "standing neutrals," to resolve disputes between parties who have an ongoing
relationship.
B 5
Around the World of International Mediation: Who’s Doing It, Where and How in Commercial Disputes?
Mac Greaves, Burr & Forman, Birmingham, AL
Robert E. Lutz, Southwestern University School of Law, Los Angeles, CA
Tom Stipanowich, International Institute for Conflict Prevention & Resolution, New York, NY
Harold Abramson, Touro College of Law, New York, NY
Tony Allen, Centre for Effective Dispute Resolution, London
Thierry Garby, World Forum of Mediation Centres, Paris
In a roundtable format, this program examines the anatomy of INTERNATIONAL MEDIATION involving cross-border commercial
disputes between parties of different nationalities. By introducing representatives from institutions and organizations around the
world engaged in administering international and cross-cultural mediations, the discussion will feature: the nature, frequency and
efficacy of international/trans-national mediations; the rules used by each institution or organization for the conduct of the
international mediation process; codes of conduct for mediators or specifically applicable ethical rules or traditions; techniques to
identify and reach common objectives; and methods of enforcement of agreements obtained by international mediation. The
program is designed to offer ample opportunity for questions and discussion.
B 6
ADR in the Courts: Judges Can Do It, Too!
Philip F. Etheridge, Fulton County (Atlanta, GA) Superior Court, Atlanta, GA
S. Kirk Studstrup, Maine Superior Court, Augusta, ME
Diane E. Kenty, Office of Court ADR, West Bath, ME
James Alfini, South Texas College of Law, Houston, TX
Courts serve the public by providing a forum to resolve disputes. In the last thirty years, courts have fulfilled that responsibility by
spearheading a movement for court-connected ADR processes conducted by trained third-party neutrals. Not only can judges
provide the leadership and infrastructure to allow others to provide ADR processes to litigants but also they can be direct providers
of court-connected neutral services through judicially hosted settlement conferences. This panel composed of judges who host such
conferences, a state ADR program director, and a leading judicial ethicist will describe the process and its usefulness, distinguish
judicially hosted settlement conferences from mediation, address the ethical framework for this court-connected ADR process and
discuss training and other programmatic concerns.
B 7
Ensuring Confidentiality in Government ADR
Charles Pou, Charles Pou Dispute Resolution Services, Washington, DC
David Batson, U.S. Environmental Protection Agency/OECA, Washington, DC
Frank Carr, Carr, Swanson and Randolph (CSR), Ellicott City, MD
Deborah Kant, Office of Dispute Resolution, DOJ, Washington, DC
Robert Fisher, Washington, DC
After litigation and other events in the late 1990’s indicated widespread confusion and controversy over confidentiality in federal
agency ADR, three ABA Sections created a Government ADR Confidentiality Committee.
This Confidentiality Committee -- comprised of public and private sector ADR program managers, mediators, and lawyers,
personnel from offices of inspectors general, Department of Justice lawyers, and others – has recently completed its Confidentiality
Guide. The Guide offers practical advice on how best to assure appropriate levels of protection for information submitted in
confidence in federal agencies’ ADR proceedings. Its analysis seeks to assist program administrators, neutrals, and others in
dealing with day-to-day issues like case intake, convening, confidentiality agreements, document handling, access requests,
evaluation, and training, and to promote a consensus that will reduce future confidentiality breaches. The experienced mediators,
program administrators, and other experts on this panel will assess the Guide and its recommendations, as well as closely related
Federal Interagency Working Group advice on confidentiality for workplace mediation program administrators. They will also
discuss related intra-governmental activities, and offer practical insights on protecting sensitive data in a variety of government ADR
settings.
B 8
Ethical Dilemmas of the Neutral
Judith Meyer, JAMS, Haverford, PA
Thousands of lawyers serve as full or part-time neutrals. Unlike judges, you market your services and are privately paid. Every
marketing contact you make produces a disclosure requirement which may make you unacceptable to the other side. You are
“damned-if-you-do-and-damned-if-you-don’t.” Creating business may disqualify you from accepting it. This program addresses
blind-siding dilemmas that can confront the neutral before they even get the case, in the middle of the hearing, and after you have
rendered your award.
B 9
Dispute Resolution and the Client, When It's a Tool, When It's a Yoke
Robyn C. Mitchell, Compliance Builders, Roswell, GA
Laurie Jung, Bank of America, Atlanta, GA
Diana Gerstberger, Zurich North America, Atlanta, GA
Beth Drill Nay, Lewis, Rice & Fingersh, Kansas City, MO
Wilean Presley, Walt Disney World Orlando, Orlando, FL
Come hear the important perspective of the user - clients and advocates will address: 1) Knowing the Client – Philosophy, goals,
deterrents, personality 2) Understanding Timing – The when and why of employing mediation or arbitration; 3) Satisfaction – What is
success and does it mean satisfaction; 4) Turn-Offs – What turns the client off in DR and to DR
B 10
Electronic Discovery and Evidence: The New Battleground in Arbitration As Well As Litigation
James A. Synder, BKD, LLP, Kansas City, MO
John R. Phillips, Blackwell Sanders Peper Martin, Kansas City, MO
Electronic discovery and production has become a huge burden in litigation. Only recently have courts given guidance with respect
to what must be preserved, produced, and who must pay for the potentially expensive search of databases and hard drives. Even
more recently, arbitrators as well as advocates in arbitration have struggled with the same issue. This program is designed to
identify issues for arbitrators and advocates alike and give guidance in the arbitration context. The applicability of the rationale in
Zubulake v. UBS Warburg LLC cases will be thoroughly discussed and various alternatives presented for dealing with the difficult
issues of searching databases, recapturing e-mails from hard drives, instant messages, blogging, and more.
B 11
When Mediators Manipulate: The Art and the Ethics
Thursday Afternoon Plenary
(Previously listed as Spin and Counter-spin: Mediators Influencing Lawyers)
Faculty
Dwight Golann, Suffolk University School of Law, Boston, MA
Marjorie Corman Aaron, Center for Practice in Negotiation & Problem Solving & U. of Cincinnati College of Law
B 12
From Apologies to Mandatory Mediation: A Comprehensive ADR Legislative and Regulatory Round-Up
Roger Haydock, National Arbitration Forum, Minneapolis, MN
Paul Bennett Marrow, Chappaqua, NY
Robert Feagin, Decker, Hallman, Barber & Briggs, Atlanta, GA
States legislatures and regulators increasingly recognize the role that ADR can play in resolving difficult disputes in specific
commercial and consumer contexts. Recent initiatives reflect states’ recognition that traditional judicial dispute resolution may not
well serve certain types of high profile disputes. This program will present examples of recent ADR legislation including: mandatory
mediation in the context of residential construction and the right to repair; mandatory and permissive mediation and arbitration in the
healthcare area; and the movement toward encouraging apologies and settlements in medical malpractice disputes. The program
will also update attendees on the status of state adoption of the Revised Uniform Arbitration Act (RUAA).
B 13
Mediator Techniques for Capturing the Human Dimension in a Mediated Litigated Case
Linda Meyer, Mediation Office of Linda Meyer, Malibu, CA
Peter Robinson, Straus Institute for Dispute Resolution, Malibu, CA
This session will provide an opportunity to dissect and interactively react to the policies, practices and techniques proven to
accomplish the goal of authentic participation of clients in the mediation of a litigated case. This conversation will explore the
balance between the mediation value of disputant empowerment and participation and the expectations and needs of attorney
mediators and attorney advocates. Successful commercial mediators will share how they coax, cajol, and comfort attorneys while
implementing mediator techniques designed to surface client needs and satisfaction.
Series C: Friday, April 7
10:15 AM – 12 Noon
C 1
Employment Arbitration Under Pre-Dispute Mandatory Clauses: Practical Issues and Challenges
Amy Totenberg, Law Office of Amy Totenberg and JAMS Atlanta, Atlanta, GA
Mairen Kelly, Fisher & Phillips, LLP, Atlanta, GA
Edward D. Buckley, Buckley & Klein, LLP, Atlanta, GA
Joan C. Grafstein, JAMS, Atlanta, GA
Experienced arbitrators and counsel for employees and employers present their perspectives on how these arbitrations actually
work—the pluses and minuses from all sides, including particular challenges and suggestions from practitioners who have arbitrated
many employment disputes.
C 2
Emotional Truth: Using Nonverbal Awareness and Empathy to Identify and Work with What's Not Said
Claudia Bernard, United States Court of Appeals, Ninth Circuit, San Francisco, CA
Clark Freshman, University of Miami School of Law, San Francisco, CA
What happens when the lips say ‘yes’ and the eyes say ‘no’? Often the words people use don’t jibe with what’s really going on
inside. This session introduces scientifically tested methods to identify emotion through facial patterns. It also introduces other
scientifically tested ways to study both verbal and nonverbal patterns to identify emotional truth. Used judiciously and with
compassion, surfacing a party’s emotional truth can provide an opportunity to understand and resolve conflict at deeper, more
meaningful levels. The session will discuss when to do so and when to hold back, and will explore how mediators can work with
emotional truth to deepen their practice and enhance their effectiveness.
C
3
Words Work: Empowering Youth Through the Fourth R
Gail Nugent, Mediation Offices of Gail Nugent, San Diego, CA
Michael Palmer, Strategies for Good Outcomes, Middlebury, VT
The general topic is Peace, Restorative Justice, and Civic Education. How we respond to wrongful behavior (and try to prevent it) is
a major part of what shapes and characterizes our democratic endeavor. The punishment paradigm expresses our natural instincts
(reciprocity, payback, retaliation, revenge, balancing scales, etc.) but is of limited value in making our communities safer and more
enjoyable places in which to live and work. The restorative paradigm, on the other hand, promotes reconciliation, understanding,
growth, integration, harmony, and happiness. From an economic standpoint, restorative processes help people become productive;
the punitive model tends to embitter and the warehousing and processing costs are much greater than those connected with
restoration.
This workshop advocates that our civic education programs need to speak to conflict of all kinds and how we respond to conflict and
wrongful behavior as a society (on all different levels of government, individually, and in non-governmental institutions, including
businesses). This education can be practical, hands-on, and demonstrative. It can also be theoretical. Ideally, it will be both.
C 4
The Effective Mediator – Perspectives from Counsel and Client
Steven Weber, Holland and Knight, LLC, Washington, DC
Kathleen Harmon, Harmon/York Associates, Inc., Secaucus, NJ
Mediation is quickly becoming the premier method of resolving construction disputes. At the very heart of the mediation process is
the mediator. An effective mediator can make the difference between a successful mediation and complete failure. The
presentation will look at the attributes of an effective mediator from the client (disputant’s) as well as counsel’s perspective.
C5
Mediation Advocacy: How to Get Results for Your Client in Mediation
MOVED FROM E 8
Al Pearson, Moraitakis, Kushel, Pearson & Gardner, Atlanta, GA
Eric S. Sweda, Troutman Sanders, Hong Kong, China
Ray Persons, King & Spalding LLP, Atlanta, GA
Jane Thorpe, Alston & Bird, Atlanta, GA
Wayne Thorpe, JAMS, Atlanta, GA
H. Lamar Mixson, Bondurant, Mixson & Elmore, Atlanta, GA
This panel of experienced, high-profile litigators will discuss what they do to get the best results for their clients in mediations. The
lawyers (Mixson, Pearson, Persons, and Jane Thorpe) handle both business and tort cases, and there are both plaintiffs’ and
defendants’ attorneys in the group who handle complex, high stakes cases. The moderator is a mediator (Wayne Thorpe)
experienced with mediations in similar cases.
The panel should interest not only attorneys who represent parties in mediations, but also mediators who will benefit from a better
understanding of how top-notch counsel prepare for and represent clients in mediations. (If the audience is sufficiently attentive,
they may reveal secrets as to how they routinely outwit the mediators!!!)
C 6
Data, Data, Data: What does a Court Mediation Program Need to Collect and How does It Collect It?
Daniel Weitz, New York State Unified Court System, New York, NY
Susan M. Yates, Center for Analysis of ADR Systems, Chicago, IL
Donna Stienstra, The Federal Judicial Center, Washington, DC
Kenneth Davis, Supreme Court of Ohio, Columbus, OH
With an increasingly wide range of sophistication in mediation programs across the country, there is a growing need for clarity about
what data is really needed, how to go about collecting it efficiently, and what a court should do with it once they have it. This session
will address those issues from a variety of perspectives:

What information courts need to collect, how to go about collecting it, and what can be learned from it;

How one state has implemented a statewide system of case management and data collection; and

How an approach from the business community – the Return On Investment methodology – has helped one court
jurisdiction make the case for ongoing support.
C 7
More than Mediation: Federal Workplace Discoveries and Forecasts
Rachel Barbour, National Mediation Board, Washington, DC
Judy Cohen, Federal Aviation Administration, New York, NY
Howard Gadlin, U.S. Department of Health & Human Services, Bethesda, MD
D. Leah Meltzer, Securities and Exchange Commission, Washington, DC
For the past 15 years, federal agencies have devoted substantial resources to establish workplace Alternative Dispute Resolution
programs. Although many federal ADR programs offer several processes, mediation is often the only or most frequently used
process. While mediation is a very effective forum to address workplace disputes, feds are beginning to use designs including
additional processes to help agencies address broader organizational issues that impact the workforce.
In this interactive session, panelists share how their ADR programs have evolved using processes in addition to mediation, and how
it has affected their agencies. Panelists will dialogue with session attendees about possible scenarios for the future of federal
workplace dispute resolution.
C 8
How Mediator Styles and Written Standards of Conduct Create Chaos for the Practicing Mediator
Christina Petrig, Georgia Office of Dispute Resolution, Atlanta, GA
John Lande, University of Missouri, Center for Dispute Resolution, Columbia, MO
Susan Nauss Exon, University of La Verne College of Law, Ontario, CA
Maureen Weston, Pepperdine University School of Law, Malibu, CA
Robert N. Dobbins, Appropriate Dispute Resolution, Laguna Woods, CA
Mediation is defined in a variety of ways. Although no one established definition exists, the term mediation includes many
universally-accepted components such as a voluntary process, party self-determination, confidentiality and use of a neutral and
impartial third person. Mediators employ a variety of styles and models. Yet as ethical standards of conduct are being approved
throughout the country, whether by a governmental entity or professional organization, some standards may infringe on a mediator’s
ability to use a particular style or model. Many standards include competing or vague requirements within their own provisions. Can
ethical standards of conduct apply uniformly to all mediator styles and models? Do the ethical standards of conduct fit within the
basic definition of mediation? Come participate in an engaging dialogue about whether it is time to redefine the term mediation.
C 9
What is Different About an International Arbitration?
Dana Haviland, International Arbitration Chambers, Los Altos, CA
Murray L. Smith, Chartered Institute of Arbitrators, Vancouver, BC Canada
Harry Arkin, Arkin and Associates, Denver, Colorado
JJ Pierson, FCI Arb, Chartered Arbitrator, New Vernon, NJ
This program will review the differences between an international arbitration and a domestic arbitration. The experienced panelists
in international arbitrations will review the different requirements for an international arbitration that must be considered by
arbitrators and by counsel. The differences arise right from the beginning and continue through to the end of the arbitration
proceedings and include differences with respect to the role and qualifications of the decision-maker, the location of proceedings,
diversity of expectations of the parties, counsel and arbitrators, availability of discovery and subpoenas, evidentiary issues, form of
arguments, available relief, costs and the form of the award. Appreciation of these differences will ensure the enforceability of the
final award. This session will be of interest to counsel and arbitrators at all levels of experience.
C 10
Other Countries, Other Customs: Sagas, Cultural Obstacles, and Lessons
Nancy A. Welsh, The Dickinson School of Law of Penn State Univ., Carlisle, PA
Harold Abramson, Touro Law Center, Huntington, New York
Giuseppe De Palo, ADR Center (Italy), Roma, Italy
Christopher Honeyman, CONVENOR, Madison, WI
Andrea Schneider, Marquette University Law School, Milwaukee, WI
Anyone who has designed dispute resolution programs abroad has probably encountered discrepancies between project design and
project implementation, and has had to confront the prospect that their own cultural assumptions may be invalid. No matter how
much advance planning you do, implementation challenges abound at every step. This panel consists of people who have been
there, done it, observed the results and written about it. They will share their observations and hard-won lessons on implementing
mediation programs abroad that are adapted to respond to local cultural structures, assumptions and needs. The discussion will
center on lessons currently being learned in a groundbreaking European Union-funded project to design and implement systems of
commercial mediation and arbitration in the ten MEDA countries (Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia,
Turkey, and West Bank & Gaza) ringing the southern side of the Mediterranean. The panel will use these findings and their
experience in other countries to suggest how ADR may fit in a variety of systems aimed at delivering justice.
C
11
A Dialogue with Deep Thinkers in the Dispute Resolution Field
Len Riskin, University of Missouri- Columbia School of Law, Columbia, MO
Margaret Shaw, JAMS, New York, NY
Howard Gadlin, National Institutes of Health, Bethesda, MD
Bernie Mayer, CDR Associates, Boulder, CO
Rachel A. Wohl, MACRO, Annapolis, MD
Doesn’t it seem like there’s never enough time for thoughtful conversations that illuminate different perspectives on critical issues in
the conflict resolution field? Is the field in crisis? What does it mean to deeply engage participants? What are our obligations as
conflict resolvers, and to whom are we obligated? Should the field address personal or societal transformation? Why? How? Is
cultural change a pie in the sky notion? In what direction should the field be headed? Come be part of a conversation about these
issues and more. Moderated by Rachel Wohl, Executive Director of Maryland’s Mediation and Conflict Resolution Office (MACRO),
and starring deep thinkers in our field: Bernie Mayer, Len Riskin, and Margaret Shaw.
C
12
Mediation in an International Multi-Cultural Environment: Lessons Learned from the World Bank Group
Elizabeth A. Moreno, EAMPC Resolution Services, Los Angeles, CA
Deborah Laufer, World Bank, Washington, DC
Mediation in a multicultural environment, while exciting, can be challenging. There are special considerations that one
must be aware of to effectively assist culturally diverse parties. This workshop will examine the challenges that
mediators often experience mediating in multicultural and international settings. Participants will explore how their
own cultural values and beliefs can influence the process and will learn skills used by mediators in the World Bank
Group to effectively engage diverse parties. Participants will be engaged through interactive dialogue and case
studies.
C 13
Hurricanes and Disaster Relief - the Role of ADR
Maria R. Volpe, John Jay College of Criminal Justice-CUNY, New York, NY
Lela P. Love, Benjamin Cardozo School of Law, New York, NY
Homer La Rue, Howard University School of Law, Columbia, MD
Mel Rubin, Coral Gables, FL
This session explores lessons for the dispute resolution community from Katrina, the 9/11 attacks and other natural disasters.
What role do dispute resolvers play in getting lives and communities back on track? Learn about efforts of the ABA Task Force, the
Section of Dispute Resolution and other groups in response to Katrina. Hear an analysis of how lessons from 9/11 were (and were
not) brought to bear on Hurricane Katrina. Explore how the insurance industry, state government and the dispute resolution
community responded to hurricanes in Florida and New Orleans.
C
14
The Doorknob Issue: Spotting & Handling That Invisible and Deadly Last-Minute Issue That Sinks The Mediation
Barbara Madonik, Unicom Communication Consultants Inc., Toronto, Ontario Canada
It’s the end of the mediation and you finally have agreement from each party – you think. Everyone has just packed up and is
heading for the door. Just as one party is about to exit you cringe when you hear, “Just one more thing…” and that’s when your
apparently settled case sinks. You’ve just come face to face with “the doorknob issue”, the uncanvassed, unarticulated shark often
circling just below the surface of mediations. It rises suddenly and seemingly out of nowhere and unexpectedly lunges at the last
moment, dragging down its victims — the parties, the mediator and the mediation itself. If you have experienced this – or just want
to avoid it – and are interested in learning how to preempt or deal with doorknob issues, join workshop leader Barbara Madonik.
Series D: Friday, April 7
2:00 – 3:30 PM
D 1
Arbitration Advocacy: From Clause to Hearing
Celeste M. Hammond, The John Marshall Law School, Chicago, IL
Jeffery J. Mayer, Freeborn & Peters LLP, Chicago, IL
Many transactional lawyers who facilitate business and commercial real estate ‘deals’ are not adequately familiar with the role of
arbitration in resolving business disputes. This workshop compares arbitration to litigation and mediation. It introduces the law of
arbitration. It provides techniques for drafting clauses and selected sample clauses. It suggests hearing techniques and their
relationships to drafting issues and shows the advocacy opportunities in drafting arbitration clauses as well as at the actual
arbitration hearing.
D 2
Deepening ADR Skills: Working with Victim/Survivors of Violence or Great Harm
Emily Menn, Milwaukee, WI
Penny Beernsten, Milwaukee, WI Janine P. Geske, Marquette University Law School, Milwaukee, WI
ADR practitioners can play a tremendous role in healing for victims and survivors of crime, severe violence or catastrophic injuries.
Hon. Janine Geske, former Wisconsin Supreme Court Justice, will guide participants through an intensive skill-building workshop on
restorative techniques: deep listening, facilitated face-to-face meetings and circles. A survivor of a violent crime will share her story,
offering participants a unique opportunity to apply new skills and engage in question-and-answer with a victim. Afterwards,
participants will discuss the experience and explore various considerations for creating processes that effectively address the needs
of someone who has been severely traumatized and injured. Participants will develop a clearer understanding of a victim’s
perceptions and experience and develop advanced skills applicable to civil and criminal practice areas.
D 3
Reforming Family Law Education: Integrating ADR Into the Curriculum
Timothy Hedeen, Kennesaw State Univ., Kennesaw, GA
Peter Salem, AFCC, Madison, WI
J. Herbie DiFonzo, LL.M. Program in Family Law Hofstra University, Hempstead, NY
Mary O'Connell, Northeastern Univ. School of Law, Boston, MA
The last quarter century has seen a dramatic shift in family law practice including the integration of a wide range of dispute
resolution and interdisciplinary processes. Unfortunately, family law teaching has failed to keep pace with these changes. The
Family Law Education Reform Project was designed to close the gap between teaching and practice. The project is a collaborative
effort sponsored by the Association of Family and Conciliation Courts and Hofstra Law School and involves dozens of
representatives of the major dispute resolution and family law organizations and more than 25 law schools.
D 4
Untying the Gordian Knot: Can Experts Save the Day in Mediation?
John W. Hinchey, King & Spalding LLP, Atlanta, GA
Patricia Thompson, Carlton Fields, PA, Miami, FL
Bilge Astarlioglu, PricewaterhouseCoopers LLP, Washington, DC
Dennis A. Estis, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, NJ
Thomas Schwartz, Simpson, Grumpertz & Heger, Waltham, MA
Mediations are becoming more and more sophisticated in their use of electronics and computers. Experts on behalf of both parties
and mediators are becoming more and more commonplace. What can experts do to assist in reaching settlement? Are they both
beneficial and detrimental to the process? This interactive program will include a fast paced dialogue between the audience and
faculty. The program will utilize a linear and non-linear power point, as well as animation.
D 5
Life in the Fast Lane: Recent Healthcare Developments and the Role of ADR
Dale Hetzler, Children’s Healthcare, Atlanta, GA
Barbara Mahon Riley, Centers for Disease Control and Prevention (CDC), Dallas, GA
Richard Vincent, Wombie Carlyle Sandridge & Rice, PLLC, Atlanta, GA
R. Page Powell, Huff, Powell & Bailey, LLC, Atlanta, GA
William Boling, Powell Goldstein, Atlanta, GA
Ansley Boyd Barton, Center for Conflict Management, Kennesaw State University, Kennesaw, GA
Several states, including Georgia, have passed legislation focused on aspects of the civil litigation process impacting healthcare
providers and patients. Some of these statutes address “apology” without implying fault. Georgia has established a process for an
“offer of judgment” that can be punitive, even to a successful plaintiff. Accreditation bodies require disclosure of outcomes, including
unfavorable outcomes. Patient and Family Centered Care are providing fertile ground for the adoption of treatment environments
that allow families to be ever-present during procedures. Quality of care, and the measurement of treatment outcomes are
producing tremendous stores of data that can be used to quantify the impact of process and procedural variations. At the same
time, providers and plaintiffs alike are eyeing this data’s potential for use in non-peer review protected areas. Attorneys are
expected to support and encourage their client’s quest for higher quality, disclosure, apology, and patient focus, but are ethically
bound to vigorously defend and advocate for protection of their client from opposing parties’ claims. Explore these and other
emerging trends in healthcare and how ADR techniques, training and programs are used to assist providers, patients and attorneys
in reaching their common goals.
D 6
Successful Statewide Appellate Mediation: Development to Implementation to Statistics
Gary F. Canner, US Court of Appeals for the Eleventh Circuit, Miami, FL
Judith Keegan, Alabama Center for Dispute Resolution, Montgomery, AL
Rebecca Oates, Alabama Court of Civic Appeals, Montgomery, AL
Celeste Sabel, Supreme Court of Alabama, Montgomery, AL
Plan, develop and implement a successful statewide appellant mediation program in your Supreme Court of court civil appeals. We'll
give you rules, forms, timeline, training, statistics collection, roster literature, and answer all your questions. We'll even tell you the
pitfalls and how we corrected them for great success!
D7
Mediation Privilege: Is it necessary, Is It Constitutional and, If So, How Should We Ensure Parties and Neutrals
Abide By It In Subsequent Proceedings?
Maureen Weston, Pepperdine University School of Law, Malibu, CA
Kristen Blankley, Eighth Circuit United States Court of Appeals, Fargo, ND
Ellen Deason, Ohio State University Mortiz College of Law, Columbus, OH
Sarah Rudolph Cole, Ohio State University Moritz College of Law, Columbus, OH
This program will consider four issues related to mediation privilege. First, many scholars and commentators presume that
mediation communications must be protected by a broad mediation privilege. This point, however is more axiomatic than proven.
The panel will consider multi-disciplinary evidence for mechanisms through which protections for communication may help achieve
mediation’s goals. Second, the panel will consider whether the constitutional principle of separation of powers implicitly restricts
enforcement of broad confidentiality statutes to the extent such provisions materially impair judicial power to sanction participant
conduct in court-connected mediations. Next, the program will consider two implications that arise from the increasing use of
mediation in combination with the adoption of broad mediation privileges. The panel will consider whether and to what extent courts
should impose sanctions against parties who intentionally introduce privileged mediation communications into subsequent
proceedings through motions or witness testimony. The panel will examine courts’ and legislatures’ approaches to the problem and
offer suggestions regarding the handling of this problem. Finally, the panel will consider another impact of the adoption of a
mediation privilege; whether an arbitrator in a med-arb proceeding may consider mediation communications in rendering her
decision.
D 8
A Practical Guide to Recent Innovations in International Arbitration
Thomas A. Doyle, Baker & McKenzie LLP, Chicago, IL
Stacie I. Strong, Baker & McKenzie LLP, Chicago, IL
James Dries, Baker & McKenzie LLP, Chicago, IL
James Petelle, Andrew Corporation, Orland Park, IL
International arbitration is not simply domestic arbitration, writ large. Those who practice in the field must be prepared to utilize
resources and arguments that have no equivalent in U.S. proceedings. This program discusses three areas of particular interest.
First, we give practical insight into the duty of disclosure and the ability to challenge an arbitrator under the recently published IBA
Guidelines on Conflicts of Interest, both before and after proceedings have begun.
Second, we evaluate the use of hearsay in arbitral proceedings, particularly arbitration. In the absence of any formal rules of
evidence, some practitioners may try to use extensive hearsay to bolster a shaky case. This program discusses ways to defend and
defeat such efforts.
Third, we discuss class arbitrations in both the domestic and international spheres. Although multi-party disputes are not as well
known outside the U.S., the rise of group actions in Europe and the increasing internationalization of commerce suggests that
foreign parties will find themselves engaged in class arbitration in the very near future. However, it is questionable whether a class
award, issued in the U.S. in accordance with, for example, the AAA Supplementary Rules for Class Arbitration, could withstand a
challenge to enforcement under the New York Convention.
D 9
What Do Our Clients Want from ADR Providers? A Panel Discussion with Leading Consumers
Stacie Behler, Meijer Stores, LP, Grand Rapids, MI
Cathy T. Johnson, Tyson Food, Inc., Springdale, AR
Charles C. Warner, Porter Wright Morris & Arthur LLP, Columbus, OH
S. Noel Rea, Fraser Milner Casgrain LLP, Calgary, AB
Robert Lee Wright, Miller, Canfield, Paddock & Stone, PLC, Grand Rapids, MI
Take a peek behind the doors of Fortune 500 legal departments to learn what heavy consumers of ADR services want in a mediator
or arbitrator. What can you do to get their business? What are you doing that could cause you to lose their business? How can you
generate more business with their colleagues at other companies? Get these and your own questions answered in a fast-paced,
interactive session.
D
10
The Ultimate Mid-Year Arbitration Update
Homer La Rue, Howard University School of Law, Columbia, MD
Lisa Salkovitz Kohn, National Academy of Arbitrators, Chicago, IL
Lisa Salkovitz Kohn and Homer C. La Rue, active labor and employment arbitrators, review the latest developments at the forefront
of arbitration law, including Supreme Court decisions and pending cert. Petitions, the effect of unconscionable terms on the
enforceability of arbitration clauses, developments in the law of class actions in arbitration, the developing law on the allocation of
responsibility for deciding questions of arbitrability between the courts and the arbitrator, and developments in the area of disclosure
requirements for arbitrators and related ethical issues. There will be time for audience questions and discussion of these
developments.
D 11
When the Going Gets Tough, the Tough Get … Mindful? Making the Thoughtful Call in the Thick of Things
Howard S. Bellman, Madison, WI
Amy Glass, Michigan Mediation & Arbitration Services, Kalamazoo, MI
Bill Hartgering, JAMS, Evanston, IL
Michael K. Lewis, JAMS, Washington, DC
This program is formatted after its popular prequel, “When the Going Gets Tough”. Guided by their moderator, a panel of wellknown, seasoned mediators share strategies in response to a series of ethical dilemmas and process challenges encountered in the
complex, “high-end” mediation practice. Drawing on real case scenarios, audience comments and questions, this advanced-level
session is sure to be lively, enlightening, and entertaining.
D 12
Mediating WITH the Insurance Industry: Techniques for Successful Negotiation
Trudy Hass, Chubb Group of Insurance Companies, Chicago, IL
Deborah Masucci, Domestic Brokerage Group—Litigation Management, New York, NY
John R. Phillips, Blackwell Sanders Peper Martin, Kansas City, MO
Larry R. Rute, Associates in Dispute Resolution LLC, Topeka, KS
Mediation can be invaluable in complex insurance coverage cases. However, careful consideration must be made to the timing and
the nature of the mediation process itself if a claims representative will be present. Our interactive panel will discuss the toughest
questions, problems and challenges when insurance claims are mediated. Topics to be discussed by the panel include: The impact
of insurance coverage on personal injury, consumer and employment law mediation process; How insurance carriers prepare for
mediation; How to be an effective participant in the mediation process—negotiation do’s and don’ts; Multiple insurance carriers and
excess insurance; Information needed by insurance carriers in advance of mediation to fully participate in the mediation process;
Professional responsibility concerns--conflict between the insurer and insured; the impact of allegations of bad faith; Creative
settlement in complicated coverage matters.
D 13
Mediation Case Law “Revue”: Lessons Learned from State and Federal Litigation About Mediation
James R. Coben, Hamline University School of Law, Saint Paul, MN
Peter N. Thompson, Hamline University School of Law, Saint Paul, MN
Using video reenactments of the year’s leading mediation cases, this session will highlight nationwide developments in federal and
state mediation case law. A featured part of the Minnesota State Bar Association’s Annual ADR Institute for the last seven years,
the “revue” provides an efficient (and entertaining) look at the steadily increasing volume of litigation about mediation. Participants
will be provided with a written summary of the year’s top mediation cases, as well as the results of an ongoing analysis of mediation
disputing trends from 1999 to today (covering over 1,800 state and federal cases).
D 14
Mediation Ethics: Telling Lies, Telling Secrets and Other Impolite Conduct
Thomas Stipanowich, CPR, New York, NY
Wayne Thorpe, JAMS, Atlanta, GA
Jay Folberg, JAMS, San Francisco, CA
Join three leading experts on mediation ethics in a panel discussion, with audience involvement, on the ethical and practical aspects
of confidentiality and candor in mediation. The panel will discuss law, ethical codes, and standard practices in mediation relating
both to confidentiality between mediation participants and the rest of the world (including the court) and confidentiality among
mediation participants (i.e., party confidentiality). The panel will also look at legal, ethical, and practical aspects of issues
surrounding the use of misrepresentations of facts, law, and bargaining positions in mediation.
Series E: Friday, April 7
3:45 PM - 5:15 PM
E 1
Best Practices in Commercial Arbitration
June R. Lehrman, JAMS, Los Angeles, CA
Curtis Von Kann, JAMS, Washington, DC
The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, a comprehensive, 225-page practice
manual, will be published in the winter of 2005-2006. Its twelve chapters provide practical advice on how arbitrators can best
manage each stage of a commercial arbitration.
In two successive sessions, the three editors of the Guide will explain its major principles and then explore, through interactive
discussion of hypothetical situations, in which audience members will assume various roles, the Guide’s recommended solutions to
thorny issues often encountered in such arbitrations.
Session 1. From Commencement to the Hearing: disclosing offers of employment as a neutral; party-appointed arbitrators and the
“presumption of neutrality;” non-neutral arbitrator disclosures; the “who” and “how” of determining jurisdiction and arbitrability; weird
wrinkles in class arbitrations; getting it right at the preliminary conference; non-party depositions and other discovery nightmares;
motions to make and motions to avoid like the plague.
Session 2. The Hearing, the Award, and Beyond: the order of proof (or, “But we’ve always done it that way?”); dealing with experts,
mountains of exhibits, and all that jazz; managing hearing time vs. the parties’ right to be heard; arbitrator do’s and don’ts during the
hearing; sanctions vs. the raised eyebrow; how to get helpful briefs from counsel; awards: interim, partial final, and really, really final;
headaches on remand, including “where’s the record?”
E 2
The Dynamics of Trust in the Conflict Resolution Process
Dana Tait Sandlin, Advanced Solutions, LLC, Summerville, SC
Richard A. Russell, Agree Dispute Resolution, Dundas, Ontario, Canada
J Wescoat Sandlin, Advanced Solutions, LLC, Summerville, SC
Gary T. Furlong, Agree Dispute Resolution, Toronto, Ontario, Canada
One of the core issues in many mediations and negotiations is the issue of trust. We often hear the phrase, “I don’t trust you,” or “I
don’t trust them,” when working with various parties. Trust, or lack of it, can be a significant barrier to effective problem solving;
indeed, it can prevent parties from having any meaningful communication whatsoever.
On the positive side, trust is a unique resource that it can be expanded through the conscious use of specific processes and
techniques. As mediators and conflict resolution professionals we need effective ways of helping to build trust with and between
people, and through effective trust-building skills, to contribute to reaching resolution. Trust is a key resource in the conflict
resolution process.
This workshop takes state-of-the-art research and writing into how trust operates and delivers a simple model for understanding the
dynamics of trust. This model can operate as a roadmap for practitioners, guiding them to effective diagnosis of trust-related barriers
along with specific interventions that can help. The model also identifies how Attribution Theory functions on an interpersonal level
and how it contributes to the loss of trust. Finally, it shows how Tyler’s research into procedural fairness can be used to help the
parties build trust and move forward. In short, this workshop will show participants how to build, maintain and repair trust through a
simple, effective framework and roadmap called the Dynamics of Trust.
E 3
Community Stakeholders Issue Resolution (CSIR): Solving Cross-Cultural Problems at Home and Abroad
John Coselli, 125th District Court, Houston, TX
Bruce W. Wettman, Frank Evans Center for Conflict Resolution, Houston, TX
Frank G. Evans, The Frank Evans Center for Conflict Resolution, Houston, TX
Al Amado, The Frank Evans Center for Conflict Resolution, Houston, TX
Community conflicts involving multiple parties and issues present special problems that are often resolved only after long and costly
adversarial proceedings. Rigid decision-making does not work well in many community conflicts and a problem-solving approach is
frequently acceptable to all concerned.
The likelihood of conflict and misunderstanding is heightened when the issues of concern are cross-cultural and language and other
cultural differences exacerbate the parties’ tensions. It is important, therefore, that the facilitators gain the respect of all
stakeholders and know how to deal with parties of different cultures, languages, monetary systems, rules, and customs.
The CSIR Engagement Protocol is based on the concept that, with guidance, the stakeholders themselves are best able to design a
procedural protocol for the identification and resolution of the issues in interest. The CSIR Protocol provides a non-intrusive forum in
which the facilitators can guide the stakeholders in developing a collaborative plan for the identification and resolution of vital issues
of concern. Thus, the stakeholders then decide what type of conflict resolution protocol will best suit their needs and how the
protocol should be designed and implemented.
E 4
Partnering Revisited: Findings of a Recent Empirical Research Study and Evaluation of this Conflict
Management Process
Frank Carr, Carr, Swanson and Randolph (CSR), Ellicott City, MD
Brian Polkinghorn, Center for Conflict Resolution, Salisbury, MD
David Creighton, Maryland State Highway Administration, Baltimore, MD
For over a decade the construction industry has trumpeted the success of partnering as a process to move from confrontational to
collaborative strategic business relationships. However, the rapid rise in the use of the partnering process has also resulted in
significant problems that put partnering at a crossroads. Critical comments that the term partnering is overused and inappropriately
applied, the kick-off workshop is too stale and needs to be refreshed, and the process is too rigid and has lost its project focus are
commonly heard. As a result, a partnering research study/evaluation was recently completed by the Center for Conflict Resolution,
Salisbury University, Maryland, of the Maryland State Highway Administration’s highly successful partnering program. The study of
over 100 partnering participants at the senior management and project level consisted of: state highway officials, engineers, and
inspectors; contractor owners, project managers, and superintendents; and, a variety of other impacted participants. The feedback
was quite revealing, brutally honest, and extremely constructive. The program will present partnering “best practices” from the
participant’s perspective with an emphasis on conflict prevention, dispute resolution, and litigation avoidance.
E 5
Advanced Strategy and Tactics for Intellectual Property Disputes
Jeff Jury, BURNS ANDERSON JURY & BRENNER, LLP, Austin, TX
Bruce O'Connor, CHRISTENSEN O’CONNOR JOHNSON KINDNESS, Seattle, WA
Peter Michaelson, MICHAELSON & ASSOCIATES, Red Bank, NJ
This program discusses approaches and techniques for the resolution of intellectual property disputes, including conducting risk
analysis with parties, and ethical challenges that may arise in this area of ADR.
E 6
Take it or Leave it. Lump it or Grieve it: Designing Mediator Complaint Systems that Protect Mediators,
Unhappy Parties, Attorneys, Courts, the Process, and Field
Geetha Ravindra, Department of Dispute Resolution Services, Richmond, VA
Sharon Press, Florida Dispute Resolution Center, Tallahassee, FL
Leslie Ratliff, Dispute Resolution Commission, Raleigh, NC
Paula Young, Appalachian School of Law, Grundy, VA
Diane E. Kenty, Office of Court ADR, West Bath, ME
Leila Taaffe, Georgia Office of Dispute Resolution, Atlanta, GA
Is it true that a mediator can do no harm? While there have been almost no malpractice lawsuits against mediators alleging injury
stemming from mediator misconduct, over the last decade, court-connected dispute resolution programs have seen an increase in
complaints filed against mediators. Currently, only a few states have developed a formal regulatory system including training and
experiential requirements for entry to the field of mediation, standards of ethics, grievance procedures and guidelines with regard to
the interrelationship between mediation and the practice of law. This panel of directors from Florida, Georgia, North Carolina and
Virginia ADR offices, moderated by Professor Paula Young of Appalachian School of Law, will discuss policy reasons driving the
need for increased regulation, examples of complaints received from mediation clients and mechanisms that have been developed
to provide oversight and quality assurance.
E 7
The Rise of Employment Arbitrators in America: The New Actor in Workplace Dispute Resolution
Ron Seeber, Institute on Conflict Resolution, Ithaca, NY
Rocco M. Scanza, Institute on Conflict Resolution, Ithaca, NY
David Lipsky, Institute on Conflict Resolution, Ithaca, NY
In the past decade, employment arbitration has emerged as one of the most fundamental shifts in workplace dispute resolution. This
development raises numerous questions -who are these arbitrators…what is their profile…how are they selected by the
parties…what kind of employment cases are they deciding…how are they compensated…how do they perform their work?
Based on recent field research, this workshop will examine a) the growing demand for employment arbitrators, b) the supply of such
neutrals, and c) the culture, ethics, and concerns of this emerging profession. We will also explore the likelihood of employment
arbitration becoming a permanent fixture of American employment relations.
This program is targeted to Corporate Counsel, labor arbitrators, employment arbitrators, and academics with interest in this
emerging field. The program will be highly interactive with time for audience questions.
E 8
Mediation Advocacy: How to Get Results for Your Client in Mediation
(Moved to C 5)
E
9
The Power of Apology and Forgiveness: Some Implications for Research and for Practice
Gregory Todd Jones, Georgia State University College of Law, Atlanta, GA
Erin O'Hara, Vanderbilt University Law School, Nashville, TN
Douglas Yarn, Georgia State University College of Law, Atlanta, GA
Jonathan Cohen, University of Florida College of Law, Gainesville, FL
William Goodman, Henning Mediation & Arbitration Service, Inc., Atlanta, GA
The roles of apology and forgiveness in conflict resolution theory and practice have recently been popular research topics, both in
the legal academy and a wide variety of other disciplines. This panel, made up of both leading legal scholars and extremely
seasoned practitioners, will provide scholarly examinations of these topics augmented by views from those that have seen apology
and forgiveness at work in practice. The wide breadth of discussion should be of interest to academics and practitioners alike.
E 10
Emerging Technologies for ADR: Is it a Case of Pulling the Profession Kicking and Screaming into the 21st
Century?
CANCELLED FEBRUARY 27th
Robin Rosenberg, Truce Technologies, LLC, West Palm Beach, FL
Michael McAuliffe, Truce Technologies, LLC, West Palm Beach, FL
E 11
Consensus vs. Collaboration: Is There a Difference in Negotiated Rulemaking?
Elena Gonzales, U.S. Department of the Interior, Washington, DC
Suzanne Orenstein, Prides Crossing, MA
Philip Harter, University of Missouri-Columbia School of Law, Columbia, MO
Richard Parker, University of Connecticut School of Law, Hartford, CT
Scholars, practitioners and stakeholders of all persuasions have complained for decades that rulemaking often takes too long to
complete, yet still leaves many people dissatisfied with both the process and the outcome. Negotiated rulemaking addressed these
issues but has not been as widely used as some anticipated that it might. Some have suggested that instead of seeking a full
consensus, negotiated rulemaking might be nearly as effective and more efficient if the goal was collaboration but short of
consensus and if the medium of communication was primarily the internet via moderated online discussion rather than a physical
meeting. This panel will explore the ramifications of these suggestions.
E 12
The Eleventh Hour in Mediation: Moving from Looming Impasse to Closure
Lee Jay Berman, The Mediation Alliance, Inc, Los Angeles, CA
Irma Tyler-Wood, ThoughtBridge, Cambridge, MA
James K.L. Lawrence, Frost Brown Todd LLC, Cincinnati, OH
Michael K. Lewis, JAMS, Washington, DC
Robert Creo, Duquesne University School of Law, Pittsburgh, PA
This interactive presentation will focus on techniques which experienced mediators have used to navigate the rough waters toward
the end of the mediation when distributive issues demand resolution and parties are seeking to resolve unmet interests or to find a
catalyst to bring the parties together using mediation scenarios. With audience participation, the panel will discuss the use of a
mediator's proposal (considerations of when to use, how to use and what should be entertained before the proposal is offered), use
of the one-text process, selective packaging of critical parts of the anticipated agreement, reality checks including centering on
BATNA, and increasing focus on unresolved issues by "depriving the participants of bread and water" and other less draconian
techniques.
E 13
But I Didn’t Sign the Arbitration Agreement!!!
Bruce Meyerson, Phoenix, AZ
Increasingly courts have imposed arbitration even on parties who never sign an arbitration agreement. This program will explore the
many facets of this trend. Using examples from real cases, the audience will learn the key principles of when “nonsignatories” may
be required to arbitrate. There will be no boring lectures but a highly interactive session drawing upon active audience participation.
Series F: Saturday, April 8
9:00 – 10:30 AM
F 1
Justice and ADR: Are Mediation, Arbitration and Other ADR Processes Effectuating Justice?
Jean Sternlight, Saltman Center for Conflict Resolution, Las Vegas, NV
Lisa Blomgren Bingham, Indiana University School of Public and Environmental Affairs, Bloomington,, IN
Amy J. Cohen, The Ohio State University Michael E. Mortiz College of Law, Columbus, OH
Bobbi McAdoo, Hamline University School of Law, St. Paul, MN
Mediation, arbitration and other ADR processes are now integral parts of the courts and agencies that make up our justice system.
Many ADR proponents advocated for the incorporation of ADR into the courts and agencies because they believed that ADR would
indeed help effectuate justice. But, at this point in the evolution of court-connected and agency-connected ADR, do we KNOW that
mediation, arbitration and ADR are being implemented in a manner that serves the mission of effectuating justice? Is it possible that
these processes are being used to detract from citizens' experience of justice? What can we as educators do to help our students
examine these issues and assist current and future lawyers and judges to implement ADR in a manner that is consistent with our
devotion to justice?
F 2
Lawyer as Problem Solver / Resources for Adjuncts: Ideas and Exercises for Creative Teaching
Peter Robinson, Straus Institute for Dispute Resolution, Malibu, CA
Jane Juliano, Juliano and Associates, PC, Bethesda, MD
Dwight Golann, Suffolk University School of Law, Boston, MA
James R. Coben, Hamline University School of Law, Saint Paul, MN
This program brings adjunct teachers and full-time faculty together to discuss ideas, exercises and role-plays that will support our
teaching. We’ll focus on two areas: The special challenges of teaching as an adjunct and our Lawyer as Problem Solver program.
Panelists will present the winning problem-solving entry plus a few favorite teaching “shticks” of our own, then open the floor for a
discussion among panelists and audience members of issues that arise in our teaching.
F 3
Using Web Cameras, Laptop Computers, and the Performance Analysis Tool
To Improve Student Negotiation Skills
Gerald Williams, Brigham Young University, Provo, UT
There is a world of difference between teaching negotiation theory and teaching negotiation skills. Skills involve the expert
application of theory in a variety of real-world settings. The principle of reflective practice is widely used for skills instruction.
However, learning theory suggests that deliberate practice is a more powerful method. Deliberate practice occurs when five
conditions are met: students are assigned to practice (1) well-defined tasks (2) at appropriate levels of difficulty, (3) they receive
frequent, expert feedback, (4) correct their errors, and (5) continue practicing until the tasks become routine. This seminar
emphasizes implementing deliberate practice in a large-enrollment law school negotiation course (40 to 50 students each
semester). The method suggested in this program includes (a) focusing on one or two well defined tasks, and (b) using inexpensive
digital video recordings, laptop computers, and a software program called the Performance Analysis Tool to improve the feedback
loop.
F 4
Using Psychology to Get the Deal Done
Donna Shestowsky, University of California, Davis School of Law, Davis, CA
Chris Guthrie, Vanderbilt University Law School, Nashville, TN
Russell Korobkin, UCLA School of Law, Los Angeles, CA
How can one use psychological strategies to “get the deal done”? One way is by using psychological anchors. To that end, we will
report the results of a newly conducted “meta-analysis” documenting the impact of an opening offer (and similar other anchors) in
negotiation. We will discuss both “offensive” and “defensive” suggestions based on this research. Another way to get the deal done
involves being wary of the problems that arise when negotiators set high aspirations – sometimes they make even beneficial deals
look undesirable in comparison. On that front, we will discuss how negotiators can achieve a mutually profitable deal by resetting
their counterpart's reference point – the point that is implicitly used to determine whether a deal is perceived as a "gain" or as a
"loss." Yet another strategy for succeeding in negotiations involves being persuasive. To that end, we will discuss strategies derived
from research showing that there are two distinct routes to persuasion – one that depends on argument quality and another that
does not.
F 5
How Far Can We Go? Reality Testing and the Facilitative Mediator
Zena Zumeta, Mediation Training & Consultation Inst., Ann Arbor, MI
Ward D. Richards, The Mediation Group, LLC, Savannah, GA
Evaluative mediators evaluate, facilitative mediators facilitate, and never the twain shall meet. Right? But – one of the tools
facilitative mediators use is called “Agent of Reality”. Is this really evaluation in disguise? How far can a facilitative mediator go and
still be facilitative? When does evaluation by the mediator become coercive? When does it become the practice of law?
These and other important questions will be addressed in an interactive, discussion-oriented session designed to initiate
collaborative dialogue on a topic often hotly debated at dispute resolution conferences throughout the country.
This workshop will look at: The major styles of mediation; definition of “facilitative” and “evaluative” mediation; definition of the
“Agent of Reality;” the continuum of advice and of giving recommendations; the continuum of possibilities from “facilitative” to
“evaluative;” each of the possibilities in the light of a mediator’s ethical obligations and liability concerns; and the technique of
litigation risk assessment /decision trees. Problem situations in mediation such as: a lawyer who is unrealistic with her client; what to
do when the parties ask for an evaluation; and alternative methods for providing an evaluation outside the mediation. It will include a
presentation, participatory discussion, and practical exercises.
F 7
Peacemaking Circles: A New Tool for Juvenile Courts
John Manelos, BP Corporation, Kennesaw, GA
Ansley Boyd Barton, Center for Conflict Management, Kennesaw State University, Kennesaw, GA
Steve Teske, Clayton County Juvenile Court, Jonesboro, GA
Janice Jerome, Clayton County Juvenile Court, Jonesboro, GA
The peacemaking circle is an ancient restorative justice process that encourages the participation of the community in the resolution
of conflict. Historically used among the indigenous tribes of North America, circles can be used for many purposes from sentencing
an offender to community decision-making. Circles are presently part of the justice system in parts of Canada and in Minnesota,
where cases are referred from the courts. Peacemaking circles are characterized by respect for all participants, structured
communication, consensus-based decision-making, and action based on shared values. Participants may be offenders, victims,
family and friends of offenders and victims, court officers, prosecutors, judges, and members of the community.
As juvenile courts search for more meaningful responses to juvenile crime and more effective ways to help youth who are at risk,
peacemaking circles are a hopeful tool. The Juvenile Court of Clayton County, Georgia, is committed to piloting circles in several
areas of its work: in presentencing and probation in delinquency cases, in dealing with status offenses such as truancy, runaway,
and unruly, and in deprivation cases involving neglected or abandoned children.
This presentation will explore lessons learned from the Clayton County pilots, including a report on data collected regarding
recidivism and satisfaction with the process.
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ADR Does Work in State Government: Sustaining High Performance ADR on the State Level
Nan Stager, Indiana Conflict Resolution Institute, Bloomington, IN
Gregory Zoeller, Chief Deputy Attorney General of Indiana, Indianapolis, IN
Weldon Schieffer, IIMADR, Stillwater, OK
John Krauss, Indiana University Center for Urban Policy and the, Indianapolis, IN
In 2002, the Oklahoma legislature created the Institute for Issue Management and Alternative Dispute Resolution (IIMADR) as a
service entity of Oklahoma State University to enhance the effectiveness and utility of ADR services in Oklahoma and the region.
Subject areas targeted for services include agriculture, rural living, the environment, and government, at all levels of governance, to
include Tribal and international matters.
Previous to IIMADR’s statutory enactment, mediation of Oklahoma’s agricultural issues was administered through a partnership of
the Oklahoma Administrative Office of the Courts, the Oklahoma State Department of Agriculture, and the Oklahoma Agriculture
Mediation Program (OAMP). Mediation services were provided as a “free service” under existing State statute. In 2002, the State
Legislature acted on its knowledge of the need to provide more ADR services, more sophisticated styles of ADR program services,
and a university-level educational component involving other universities, the private sector, and other government agencies. State
and federal elected officials also recognized the complexity of agriculture issues as well as other environmental and institutional
matters in which stakeholders face both overlap and jurisdictional voids in both regulations and services. In essence, there was a
need to serve the growing demand for ADR in Oklahoma.
IIMADR cases and projects now include services and educational events for facilitation, mediation, and arbitration, and continue to
build on many types of successful outcomes on a variety of subject areas. To date, applications have included: facilitation projects
involving regional water treatment and distribution systems; invasive migratory birds and related health issues; metropolitan and
urban commercial solid waste issues; rural hospital revitalization and transitions involving Medicare; County road weight limits; and
other matters. The educational components delivered by IIMADR include ADR practitioner certification training; a 15-hour graduatelevel certificate in negotiation and ADR from a Land-grant University; formal classes for interpreters to attain certification in
healthcare topics; and other workshops and conference activities.
Other academic activities have included University-credit classes to Tinker Air Force Base managers to better prepare them for
federal workplace and employment issues; international conferences and distance-learning classes involving universities in Mexico,
Great Britain, and Africa; and the expansion of ADR programming and related institutional development.
With states divided on whether to utilize “voluntary, free mediation” or “for-fee” and “mandatory” applications, panelists will describe
and analyze the lessons learned and the pitfalls of such transitions. In addition to subject matter expertise from neutrals, discussion
will include the impact of funding, politics, and academic systems having a hand in programmatic ADR applications.
F 9
Implementation of Ombuds Programs in Hospital Systems: Objectives and Benefits
Laurie Patterson, Akron General Medical Center, Akron, OH
Charles Howard, Shipman & Goodwin LLP, Hartford, CT
Carol A. Santalucia, Cleveland Clinic Foundation, Cleveland, OH
In recent years, many institutions have recognized the value of an organizational ombuds as a resource for employees who are
confronted with ethical problems and other tensions in the workplace. The Report and Recommendations of the Advisory Group on
Federal Organizational Sentencing Guidelines has recognized the role of ombuds programs; the revised federal Sentencing
Guidelines that became effective in November, 2004 included the need for confidential and anonymous mechanisms that help
employees report or seek guidance on workplace violations of law. Various initiatives for improved corporate governance in the past
few years have stressed the need for confidential and anonymous communication channels for employees. The SEC, for example,
has required various mutual funds in enforcement consent decrees to create ombuds programs. Join us to learn about the hows and
whys of implementing Ombuds programs in Hospital Systems.
F 10
Resolving Construction Disputes in the Change Order Spec
Richard Bayer, La Jolla Center for Dispute Resolution, La Jolla, CA
Tom Brascher, The ReAlignment Group,LLC, Tumwater, WA
Marsha Brascher, The ReAlignment Group, LLC, Tumwater, WA
Dan Fauchier, La Jolla Center for Dispute Resolution, La Jolla, CA
Resolution of major construction disputes almost always happens under the Claims Specification where inconsistent contractual
provisions, inadequate record keeping and the expense of counsel and experts makes these claims company threatening. Using a
facilitator to realign the parties’ interests from a personal or company threatening perspective to a project perspective, allows the
use of all the ADR tools available (independent neutral analysis, independent legal advice, mediation, facilitation, site based
arbitration) to resolve the dispute within a few months (rather than several years) and use the people and resources actually on the
job to turn it around. Project Realignment™ has had tremendous success in resolving multi-million dollar private and public
construction disputes.
F 11
What Advocates Want From Mediators: Empathy? Effectiveness? Evaluation? All of the Above?
David Long-Daniels, Greenberg Traurig, LLP, Atlanta, GA
Frederick Smith, Seyfarth Shaw, Atlanta, GA
Abigail Pessen, Mediation Services, New York, NY
Janet Hill, Hill & Beasley, LLP, Athens, GA
Edward D. Buckley, Buckley & Klein, LLP, Atlanta, GA
In a lively, interactive session with audience participation, lawyers representing employees and management who frequently use
mediation will opine on mediators’ successful and unsuccessful techniques, and describe what they want from the mediator.
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What's Law Got to Do With It?
James C. Coyle, Office of Attorney Regulation, Denver, CO
P. Jean Baker, American Arbitration Association, Washington, DC
O. Russel Murray, Garlin Driscoll & Murray, LLC, Denver, CO
Nancy Nelson, New York, NY
Rapid changes in ADR will have substantial impacts on persons involved in dispute resolution at all levels, from neutrals to
advocates to participants. Disclosure obligations for both mediators and arbitrators are coming to the fore with awards and mediated
agreements being challenged where disclosures are deemed inadequate. Recent legislation is reviving unauthorized practice of law
(UPL) and multi-jurisdictional practice (MJP) issues for advocates representing clients in arbitration proceedings. Recent changes
to Rule 2.4 of the ABA Model Rules of Professional Conduct place new ethical requirements on lawyer-neutrals serving as either
mediators or arbitrators. These and other issues will be discussed by a distinguished panel of experts from a variety of perspectives
including P. Jean Baker, Esq., Vice President, American Arbitration Association; Nancy Nelson, New York, N.Y.; Russel Murray,
Denver, CO, and James C. Coyle, Deputy Regulation Counsel for the Colorado Supreme Court, Denver, CO.
Series G: Saturday, April 8
10:45 AM – 12:15 PM
G
1
Neutrality and Impartiality: How Much is Enough?
Scott Peppet, University of Colorado School of Law, Boulder, Colorado
Nancy A. Welsh, The Dickinson School of Law of Penn State Univ., Carlisle, PA
Richard C. Reuben, University of Missouri Columbia School of Law, Columbia, MO
Art Hinshaw, Arizona State University College of Law, Tempe, AZ
The public debate regarding recent Supreme Court nominees highlights the legal, political and social importance of judges'
independence and ability to be impartial. But, increasingly, courts are delegating their adjudicatory and settlement functions to
neutrals whose independence and impartiality can reasonably be questioned--e.g., arbitral organizations that rely on a small number
of large employers and manufacturers for the referral of lucrative cases, administrative judges who are employees of the very
agencies whose decisions are disputed, mediators who are more likely to view the attorneys than the parties as their real "clients."
This session will examine neutrals' independence and impartiality, particularly: 1) just how much independence and impartiality is
needed in litigation, administrative proceedings, arbitration and mediation; 2) what should constitute sufficient evidence of bias to
merit vacatur of decisions or settlement agreements; and 3) more affirmatively, what options exist to safeguard neutrals'
independence and impartiality. The program will focus on what we as educators can do to help our students understand and
examine these issues.
G 2
Text Meets Technology: Integrating Mediation Theory and Action
Douglas Frenkel, University of Pennsylvania School of Law, Philadelphia, PA
James H. Stark, University of Connecticut School of Law, Hartford, CT
The teaching of mediation is almost wholly about process, perhaps best taught by observing real mediators in action. Yet for many
years, there has been a dearth of good teaching tapes to demonstrate the mediation process in all its contextual variability.
The presenters are nearing completion of a mediation skills/ethics text that includes a DVD containing substantial excerpts from
eight simulated mediations, involving three original problems based on real cases. Included are mediations of a child custody
dispute, a small claims consumer dispute, and a lawyered premises liability case.
The mediations were conducted by nine practicing neutrals, selected for their differing backgrounds, styles and orientations. By
viewing, pre-class on in-class, students will see the wide variety of ways in which mediation is practiced, and how, in the same case
and with the same litigants, different orientations and techniques can yield very different outcomes. In this presentation, we will
show selected portions from the DVDs and distribute selected excerpts from the textbook, demonstrating how we have tried to link
the text to the DVDs for instructional purposes. The presentation will be highly interactive, as we seek ideas from the audience on
how to make optimal use with students and other mediation trainees of this new, interactive technology.
G 3
Beyond Role Playing: Interactive Theatre Tools for Law School Teaching
Sharon Sutherland, University of British Columbia, Vancouver, BC Canada
Carrie Gallant, Creativity Zone, Vancouver, BC Canada
For some years, we have incorporated theatrical training tools – most especially exercises derived from improvisational theater and
from Augusto Boal’s Theater of the Oppressed – to law school courses in negotiation, mediation advocacy and mediation. More
recently, we have been adapting these exercises and exploring a wider range of theatrical sources (including playback theatre and
sociadrama) to a broader range of law school courses, including first year Contracts. In this session, we will examine the
applications of theatrical models of learning to legal education. This workshop will be highly participatory; attendees will take part in
several of the theatrical exercises.
G 4
Classroom Conversations about Race, Poverty, and Social Status in the Aftermath of Katrina
Homer La Rue, Howard University School of Law, Columbia, MD
Timothy Hedeen, Kennesaw State Univ., Kennesaw, GA
Lela P. Love, Benjamin Cardozo School of Law, New York, NY
Constructive public dialogue and discourse is an important tool to foster understanding among individuals and groups around
divisive issues implicating value, cultural and ethnic differences that affect world views, assumptions and ultimately public policy.
This session is designed to examine principles and models of dealing with difficult classroom and public conversations about issues
of race, poverty and social standing (sparked by the emergence of such issues after the 2005 hurricanes). Participants will be given
a variety of tools to promote constructive conversations in their classrooms and will be asked to share their own experiences and
approaches with other teachers.
G 5
Reframing Threats
Linda Putnam, College Station, TX
Roy Lewicki, Columbus, OH
This session focuses on the relationship between threats and trust in negotiations. It reviews the work on different types and
wordings of threats, their functions and effects, and the role of trust and distrust in using and interpreting threats. It concludes with
some guidelines for considering the role of communication in negotiation, especially for reframing threats.
G 6
Getting Your Hands Dirty: Participant Exercises Using Online Dispute Resolution Technology
Ethan Katsh, University of Massachusetts, Amherst, MA
Daniel Rainey, National Mediation Board, Washington, DC
What is online dispute resolution (ODR) technology, and how can it be used in grievance mediation and arbitration? This session
will answer that question through two simulated cases, based on the work of the National Mediation Board and the University of
Massachusetts, Amherst, under a grant from the National Science Foundation to develop ODR software.
G 7
Multicultural Gender Issues in Community Mediation and Dispute Resolution
CJ Larkin, Washington University, Alternative Dispute Resolution, St. Louis, MO
Pamela De Voe, International Institute of St. Louis, St. Louis, MO
Karen Tokarz, Washington University School of Law, St. Louis, MO
The demographics of our urban areas are changing today. Almost one in five urban residents in the United States is foreign-born. In
2005-2006, faculty from the Washington University Alternative Dispute Resolution Programs and the International Institute of St.
Louis initiated a multiethnic dispute resolution research and training program with more than a dozen refugee and immigrant groups
in St. Louis, Missouri. Exploring dispute resolution with these New Americans required us to consider multiculturalism and the
traditional ADR models we use today -- raising questions about essential elements in our Western-based model, such as, the issues
of gender, individuality, and confidentiality. For example, many new comers arrive with more restrictive, hierarchical gender roles
than is legally or traditionally supported in the United States. The latter leads us to the question: is there a role for multiculturalism in
cases involving cross gender parties; and if there is a role, what is it? In this session, the presenters will discuss the project’s
findings and their implications for ADR models used in multicultural settings.
G 8
Money: Mediation practices to Deal with the Almighty Dollar
Norval (John) D. Settle, SETTLEment Associates, LLC, Arlington, VA
Linda Toyo Obayashi, Baltimore, MD
When dollar issues dominate, mediators are at risk of letting their role deteriorate to the point where they become mere auctioneers.
There are many opportunities in these cases for good mediation technique and nuanced practice to help parties explore interests
fully and avoid “money traps.” This session will explore the various meanings of money, how to help parties envision a broader
range of interests, and creative techniques for helping parties grapple with valuation. Participants will analyze typical situations
involving disputes over money, and the presenters will distribute a list of techniques.
G9
Update on Class Action Arbitrations and the Controversy Over Class Action Waivers
Jean Sternlight, Saltman Center for Conflict Resolution, Las Vegas, NV
Alan S. Kaplinsky, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA
Eric P. Tuchmann, American Arbitration Association, New York, NY
The United States Supreme Court’s decision in Green Tree Financial Corp. v. Bazzle, which implicitly permitted class action
proceedings to take place in the arbitral forum, continues to generate controversy and additional litigation. This panel will review
how class arbitrations have proceeded in light of Bazzle, and will also discuss the issue of class action waivers in light of the
California Supreme Court’s decision in Discover Bank v. Superior Court which held that class action waivers are unconscionable
under certain circumstances.
G 10
NASD Dispute Resolution: Innovations and Update
Scott Bieler, First Vice President and Assistant General Counsel, New York, NY
Linda D. Fienberg, NASD, Washington, DC
Pearl Zuchlewski, Kraus & Zuchlewski, New York, NY
This program will discuss the proposals to the Code of Arbitration presently pending with the SEC, the recently enacted arbitrator
qualifications changes and a newly developed pilot program to handle discovery disputes. This pilot program, called the “discovery
arbitrator”, is being implemented in two Dispute Resolution offices and is being supported by both plaintiff and defendant
representatives. It represents a “magistrate-like” approach to difficult and contentious discovery issues. A special panel of neutrals,
agreeable to both sides of the aisle, has been developed and trained in the NASD Los Angeles and Boca regions.
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