PACIFIC CURRENTS
SOUND PERSPECTIVES ON ADR
Check Onsite Agenda for Room Assignments
Thursday Morning Opening Plenary 8:30 – 10:00 am Grand Ballroom
The Frank Sander Lecture
Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More
The speakers will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation. Counsel for Hall Street Associates v. Mattel, Inc. will review and re-enact their Supreme Court arguments.
Paper
Hall Street Associates L.L.C. v. Mattel Inc. Supreme Court Decision
Presenters:
Michael T. Garone
Michael Garone is a shareholder with the firm of Schwabe, Williamson & Wyatt in Portland, Oregon and is head of the firm's Appellate Practice Group. He has practiced in the areas of labor law, employment law and appellate law for over 27 years. He has tried over one hundred labor arbitrations and has substantial litigation experience in state and federal courts at both the trial and appellate level. He has authored numerous appellate briefs and argued many cases before various appellate courts including the Oregon Court of Appeals, the Washington Court of Appeals, the Oregon Supreme Court, the Ninth Circuit Court of Appeals and the Tenth Circuit Court of Appeals. Mr. Garone was counsel of record for the Petitioner before the United States Supreme Court in Hall Street Associates, L.L.C. v. Mattel, Inc. He has been named by Chambers USA as one of the top labor and employment attorneys in the United States.
Eric Tuchmann
Eric P. Tuchmann is General Counsel and Corporate Secretary of the American Arbitration Association. In that capacity, he is the Association’s chief legal officer and is responsible for managing the legal department and the legal affairs of the organization. His specific responsibilities include defending the Association in litigation-related matters involving the Association or its arbitrators, considering requests for the Association’s submission of amicus curiae briefs, and reviewing various policies and rules that govern dispute resolution proceedings administered by the Association. Mr. Tuchmann chaired the Association’s committee to draft its Supplementary Rules for Class Arbitrations, and he also analyzes state and federal legislation impacting alternative dispute resolution, the unauthorized practice of law, and attorneys’ professional rules of responsibility. As Corporate Secretary, Mr. Tuchmann is responsible for all governance related matters and serves as the Association’s Ethics Officer. His e-mail address is TuchmannE@adr.org.
Series A: Thursday, April 3 10:15 – 11:45 am
A1: Breaking the Rules: The Truth About Consequences
This session will present examples of mediators choosing (or being driven to) break commonly understood rules of good mediation practice and examine the consequences. Whether disastrous, unexpectedly positive, or more ambiguous, how do these consequences square with the theory of mediation practice? Examples used will be based upon an informal survey of practicing mediators.
| Marjorie Aaron | University of Cincinnati College of Law, Cincinnati, OH |
| Dwight Golann | Suffolk University Law School, Boston, MA |
| Papers | |
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Fine Fix — The Bare Facts Fine Fix — Exhibits Breaking the Rules — Power Point Presentation |
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A2: How to Be an Effective Advocate in ADR Processes
Join experienced advocates and senior in-house counsel who will share their insights on preparation and conduct techniques that creates successful outcomes for the client in mediation and arbitration.
| Phillip M. Armstrong | Georgia Pacific, Atlanta, GA |
| Robert A. ("Bob") Bleicher | Holland & Knight, San Francisco, CA |
| Judith Korchin | Holland & Knight, LLP, Miami, FL |
| Scott D. Nader | AMEC Power & Process, Atlanta, GA |
| Bob (Robert L.) Ivey | Holland & Knight, LLP, Los Angeles, CA |
| Eric S. Sarner | Praxair, Inc., Danbury, CT |
| Papers | |
| Material will be provided onsite | |
A3: Taking Control of the Discovery Process in Arbitration
Arbitration’s core benefits are efficient and cost-effective alternative dispute resolution. By its very nature, it is structured to mitigate courtroom style approaches to conflict management. As a result, discovery in arbitration is often more limited than discovery allowed in litigation. However, in some cases, discovery in arbitration can be at odds with the goals of efficient and cost-effective dispute resolution. This session will explore current developments pertaining to discovery in arbitration, as well as tools that parties and arbitrators can use to ensure that discovery in alternative dispute resolution remains cost-effective and economical for the parties. The presenters will also examine the proliferation of e-discovery and the role that it plays in arbitration.
| Sasha Carbone | American Arbitration Association, New York, NY |
| Zela G. Claiborne | Mediator & Arbitrator, Berkeley, CA |
| James R. Madison | Mediator & Arbitrator, Menlo Park, CA |
| Papers | |
| AAA Commercial Rules—Discovery | |
A4: ADR in Health Law: A Primer on the Parties; Issues; Relationships; and ADR Perspectives
The use of alternative dispute resolution in the business of healthcare is growing exponentially. This panel of seasoned healthcare attorneys, clients and neutrals will explore the myriad relationships among healthcare sectors. Presenters will examine the repetitive potential conflicts that arise in those relationships and explore potential dispute resolution applications in healthcare delivery systems.
| June Lehrman | JAMS, Los Angeles, CA |
| Kenneth N. Smersfelt | Reed Smith, Los Angeles, CA |
| Glenn Solomon | Hooper, Lundy & Bookman, Los Angeles, CA |
A5: Using Judges As Neutrals
This session will provide an overview of the Judicial Settlement Conference Program in Virginia which successfully uses retired Circuit Court Judges to provide mediation styled settlement services in court-referred cases. The session will also discuss ethics issues related to judges serving in the role of mediator.
| James J. Alfini | South Texas College of Law, Houston, TX |
| Geetha Ravindra | Geetha Ravindra Dispute Resolution Services, Glen Allen, VA |
| Kim Kovach | South Texas College of Law, Houston, TX |
| Bruce Wettman | South Texas College of Law, Houston, TX |
| Papers |
| Risk of Coercion Too Great |
| Justice System Journal - Virginia's Judicial Settlement Conference Program |
A6: Upsizing: How to Build and Operate an Increasingly Profitable and Sustainable ADR Practice
You've started your ADR practice and you've got a few cases, but how do you make ADR a profitable, full-time career? Join a full-time mediator and a law firm management consultant to learn how to transition from entrepreneurial startup to a mature ADR business and start making real money.
| Dennis McCue | Dynamic Firm Management, Newport Beach, CA |
| Diana Mercer | Peace Talks Mediation Services, Inc., Los Angeles, CA |
| Papers | |
| Upsizing Program |
A7: Challenges and Surprises of Adapting Mediation Overseas: Recent Experiences in High-Conflict Regions of the World
As we become increasingly multi-cultural many ask how our 'western' approach to mediation translates overseas, as well as what we can learn from other cultures. Mediators who have worked with community leaders in Cuba, Poland, Russia, Rwanda, Burundi, DR Congo, Kenya and Sudan will describe experiences offering mediation trainings that were culturally relevant and topically specific, as well as look at how our mediation process dovetails with traditional methods of resolving conflicts. This session is designed to stimulate a lively discussion on how we might apply these insights to our work here in the U.S.
| Bob Barry | Conflict Resolution, Research and Resource Institute, Tacoma, WA |
| George Brose | Clark County Common Pleas Court Mediation Center, Springfield, OH |
| Polly C. Davis | King County Interlocal Conflict Resolution Group, Seattle, WA |
| Judy Friesem | Catalyst Mediation Services, Bainbridge Island, WA |
| William F. Lincoln | Conflict Resolution, Research and Resource Institute, Tacoma, WA |
| Papers | |
| Experiences Training Mediators in East and Central Africa | |
A8: Divine Intervention: Dealing with Emotion, Principle and Other Challenges of Religious Institution Litigation
Strongly held principles and high emotions pose particularly difficult challenges to successful mediation. This session explores how to successfully address these and other challenges in the particular context of disputes involving faith-based organizations, with lessons for other situations in which emotion and deeply held principles are at the fore. Faith-based organizations comprise a huge sector of the non-profit world that is undergoing dynamic change. Although many such organizations seek "peace on earth", effectively mediating disputes in this context calls for particular skill, sensitivity and creativity. Presenters include two top religious institution attorneys and three highly-regarded mediators that will address these challenges and solutions in a moderated, interactive discussion format using as context two areas of high profile litigation: 1) church property litigation arising out of the gay ordination controversy in the Episcopal Church; and 2) sex abuse litigation in the Catholic Church.
| Heather H. Anderson | Goodwin Proctor, Washington, DC |
| Terrence Carroll | Judicial Dispute Resolution LLC, Seattle, WA |
| Mark Chopko | Stradley Ronon Stevens & Young, LLP Washington, DC |
| Eileen Concannon | Riddell Williams, P.S., Seattle, WA |
| Teresa Wakeen | Wakeen & Associates, Baltimore, MD |
| Papers | |
| Divine Intervention Dealing with Emotion, Principle and other Challenges | |
A9: The Legal and Commercial Effects of Tribal Sovereign Immunity on Dispute Resolution Dynamics
As gaming revenue fuels tribal economies, the assertion of sovereign immunity can be a significant impediment to the creation of important commercial relationships and resolution of the disputes that inevitably arise. Native American tribes are looking at limited waivers of sovereign immunity and arbitration to help foster these relationships. At the same time, they want tribal courts to be able to take a more active role in the process. This session will review the legal ramifications of arbitration agreements and the steps tribes are taking to become more responsive to marketplace realities, while still protecting their sovereign immunity.
| Walter E. "Gene" Barton | Karr Tuttle Campbell, Seattle, WA |
| Gabe Galanda | Williams Kastner & Gibbs PLLC, Seattle, WA |
| Ron Whitener | Native American Law Center, University of Washington School of Law, Seattle, WA |
| Papers | |
| Waiving Goodbye to Tribal Sovereign Immunity | |
| Waiving Tribal Sovereign Immunity under Arbitration Agreements | |
A10: What Deliberative Democracy Means for Dispute Resolution: Getting Down to the Nuts and Bolts
Deliberative democracy contends that government policy is most legitimate when it is the product of the deliberation of its citizens -- that is, when the policy flows from the bottom up, rather than from the top down. But what does that mean in the every day world of practice for public policy dispute resolution practitioners? In this session, public policy dispute resolution experts team up with experts in deliberative democracy to discuss how deliberative democracy theory can inform public policy dispute resolution practice. The session will be highly interactive, working with real world examples from the panelists’ own experience as well as the experience of members of the audience.
| Peter S. Adler | The Keystone Center, Keystone, CO |
| Robert Barlow | Stanford University Department of Political Science, Palo Alto, CA |
| Susan Podziba | Susan Podziba & Associates, Brookline, MA |
| Richard C. Reuben | University of Missouri School of Law, Columbia, MO |
| Papers | |
| Doing Deliberative Democracy Slides | |
| ManagingPolitical Power in Public Policy Mediations | |
Series B: Thursday, April 3 12:00 – 1:30 pm
(Includes Boxed Lunch)
B1: When You're Not in Kansas Anymore: Creating A New Model for Cross Cultural Mediation
In this advanced skills session, theory and practice are melded to demonstrate how mediators transform process and develop elicitive and improvisational methods to successfully handle cultural context, communication crosstalk, preconception of the other, face-saving maneuvers, and other challenges presented when mediating within a multicultural and diverse environment.
| Karenjot Bhangoo | Los Angeles County Bar Association, Los Angeles, CA |
| Deborah Schick Laufer | The World Bank Group, Washington, DC |
| Papers | |
| Creating a New Model for Cross-cultural Mediation | |
B2: The New Lawyer: Is Settlement Transforming the Practice of Law?
Based on the upcoming book by Macfarlane The New Lawyer, this session asks "Are the foundational practice norms and values of the legal profession changing as a consequence of the increasing emphasis on (early, proactive) conflict resolution?” Using an approach of point and counter-point between the two main presenters, this session will explore the empirical data and anecdotal evidence for the impact on lawyering practice and cultural norms of the reduced level of trials, and the increasing use of consensus-building processes such as mediation and collaborative law. Drawing on research conducted with lawyers and clients over the past 10 years in the US and Canada, this session will address specific topics including the advocacy role played by lawyers when they engage in consensus-building; the balance of power and authority in the lawyer-client relationship where clients may play a more direct role in settlement discussions; and the role of lawyers alongside other conflict resolution practitioners. The discussion will also examine the changing role of law school and continuing legal education in supporting and enhancing a "new lawyer" role.
| Julie Macfarlane | University of Windsor, Kingsville, Ontario Canada |
| Nancy Welsh | Dickinson School of Law, Penn State University, Carlisle, PA |
| Papers | |
| Material will be provided onsite |
B3: Navigating the Arbitration Minefield: Overcoming Resistance to the Process and Devising a Strategy for Success
There is a growing perception among members of the bar that arbitration is not only less costly or time consuming than litigation, but not desirable because of uncertainty and the finality of the award. This notion has led to resistance to the process. Fewer advocates are recommending arbitration to their clients and more are agreeing to waive the arbitration clause when faced with a dispute. This facilitated discussion between two commercial litigators, in addition to a transactional attorney with experience as an arbitrator will highlight the minefields that prevent efficient arbitration and discuss possible solutions. Topics to be covered include: motion practice, discovery, expansive arbitrator powers, lack of appeal, equitable relief and sanctions.
| Cecilia B. Loving | Patterson Belknap Webb & Tyler LLP, New York, NY |
| Paul Bennett Marrow | Paul Bennett Marrow, Attorney at Law, Chappaqua, NY |
| Elizabeth J. Shampnoi | Storch Amini Munves PC, New York, NY |
B4: The Machiavellian Intellectual Property Mediator
This session will discuss the many ways to maximize your ability to take charge of the mediation process so that your client’s case will be settled to its optimal advantage. The presenters, IP litigators and mediators, will discuss negotiation tactics and strategies as well as practical tips that are particular to settling the Intellectual Property case. Ms. Pynchon, who is presently writing a text on the Social Psychology of Conflict with University of Missouri School of Law Professor Richard Reuben will moderate and add commentary on the social psychological factors that impact – for good or ill – every IP negotiation.
| Christine Byrd | Irell & Manella, Los Angeles, CA |
| Victoria Pynchon | Judicate West, Beverly Hills, CA |
| John Leo Wagner | Judicate West, San Juan Capistrano, CA |
| Papers | |
| Material will be provided onsite |
B5: Settlement Conference Strategies that Work: Mediator's View
This session is presented by the Pierce County Center for Dispute Resolution of Tacoma, Washington, the only community dispute resolution center in the state which offers Settlement Conference mediation with attorney mediators. The session includes the center’s Executive Director moderating a panel of volunteer mediators on topics such as mediating with Pro Se clients, Insurance Adjustors, Retired and Active duty military and the challenges of Family Law mediation.
| Kathy Bruya | The Law Office of Kathy Bruya, Auburn, WA |
| Jim Cathcart | Morton McGoldrick P.S., Tacoma, WA |
| Maralise Hood | Pierce County Center for Dispute Resolution, Tacoma, WA |
| Michael Riggio | Luce & Associates, P. S., Tacoma, WA |
| Jennie Lou Shirer | Pierce County Center for Dispute Resolution, Tacoma, WA |
| Wendy Zicht | Law Office of Wendy E. Zicht, Tacoma, WA |
| Papers | |
| Settlement Conference Strategies that Work | |
B6: Can't They Just Say They're Sorry? The Intricacies of Giving and Receiving Apologies in Mediation
Numerous studies have shown the value of the apologies in negotiation -- both from a healing perspective as well as their impact on monetary settlements. However, an ineffective or insincere apology can backfire and harm the relationship and the negotiation. In addition, culture and gender can impact the timing and manner in which an apology is effectively given and received. This highly interactive session will focus on different types of apology, their purpose, delivery and impact, and whether the mediator should play a role in encouraging an apology.
| Nina Meierding | Mediation Center for Family Law, Ventura, CA |
| Peter Robinson | Straus Institute for Dispute Resolution, Pepperdine School of Law, Malibu, CA |
| Papers | |
| Outline Apology Workshop | |
B7: Consensus, Collaboration, Dialogue on Public Issues: What is the Difference and How Does ADR Fit the Spectrum?
Mediators, other ADR practitioners, and specialists who design consensus-building processes, have worked in public policy contexts for more than twenty years. Over the last decade, practitioners in the related fields of dialogue facilitation, deliberation, and citizen engagement have become increasingly involved in addressing divisions over public issues. All of these approaches have in common commitments to fairness, collaboration, transparency, participant ownership and/or empowerment. How do these approaches differ and how do their shared commitments show up in the work? How can we bring to complex and multi-faceted public controversies the best of what each has to offer, carefully matching methods to goals and situations? In this session, practitioners in three different arenas will discuss what collaboration means to them in the way they work with clients, then consider how they can support collaboration within the extended family of tools, of which ADR is one member.
| Maggie Herzig | Founding Associate, Public Conversations Project, Watertown, MA |
| Michael K. Lewis | JAMS, Washington, DC |
| Suzanne Orenstein | Independent Public Policy Facilitator, Beverly, MA |
| Papers | |
| Power Point Presentation | |
| Building Collaboration and Consensus on Public Policy Issues | |
| Virtuous and Vicious Cycles | |
B8: The Challenge of Effective Marketing Strategies and Techniques for Ethnic and Racial Minorities in the Profession
Racial and ethnic minorities seeking to establish and grow their arbitration, mediation, and ADR consulting and training practices face dual challenges of (a) competing for business clients and national roster placement in an increasingly competitive environment, and (b) overcoming historical barriers to their entry into the ADR marketplace. This session defines and distinguishes marketing from sales methodology, reviews key guidelines to developing a personal and effective marketing strategy, and provides useful practice tips on successful marketing and sales techniques. Presenters will also discuss their personal histories and successes in meeting the dual challenge and successfully breaking through as nationally recognized professional neutrals.
| Natalie Armstrong | Golden Media, Santa Monica, CA |
| Neal Blacker | ADR Management Design & Training, Newark, NJ |
| Marvin Johnson | JAMS, Silver Spring, MD |
| Timothy K. Lewis | Schnader Harrison Segal & Lewis, LLP, Washington, DC |
| Dan A. Naranjo | Mediator/Arbitrator and Adjunct Professor of Law, St. Mary’s School of Law, San Antonio, TX |
| Papers | |
| Outline | |
| Minorities in the ADR profession | |
B9: Ask the Experts: Answers to Your Ethical Quandaries
In this interactive skills-building session presenters experienced in ethical dilemmas in mediation and arbitration will respond to ethical inquiries posed by the audience.
| Jay Folberg | JAMS, San Francisco, CA |
| Ruth V. Glick | Mediator and Arbitrator, Burlingame, CA |
| Nancy F. Lesser | Pax ADR, Washington, DC |
| Wayne Thorpe | JAMS, Atlanta, GA |
B10: Breaking Impasse: Tips, Tricks, Traps and Tools
Parties, and occasionally advocates, flounder in the intersection of logic and emotion. What if the parties’ goals are “distributive” and their “interests” are legal arguments? What if you get an hour into the session and realize the participants are aggressive, intransigent, and obnoxious? A “transformative” mediation would involve an exorcism, but that seems a bit “evaluative.” A “facilitative” mediation would require a PhD. What are you going to do? This session will focus on “nuts and bolts.” Learn tips to dispense “reality therapy,” “dance with the devil,” and reach closure in the face of inappropriate behavior. Explore the psychology of decision-making, and learn practical tools to chart a path toward resolution. Learn tricks to reach “resolution,” not just “settlement” where both sides walk away unhappy! Recognize when someone is attempting to “play” you, deal with confrontation, calm the “pit-bull,” and overcome apparent impasse. These insights apply to public/private and two party/multi-party cases.
| Sam Imperati | Institute for Conflict Management, Inc, Portland, OR |
| Papers | |
| Breaking Impasses: Tips, Tricks Traps and Tools | |
Series C: Thursday, April 3 1:45 – 3:15 pm
C1: Justice and Dispute Resolution
This interactive panel will explore various dimensions of the design of dispute resolution systems and processes in both national and international contexts with a focus on how a particular approach impacts justice delivery. The role of mediation in emerging democracies where the rule of law is being established, the role of parties in mediations where professionals tend to dominate the process, and the most just and efficient allocation of our judicial resources will be examined. Participants will be treated to debate, stories, and opportunities to question leading theorists and dispute resolvers on questions of justice delivery.
| Eric Galton | Lakeside Mediation Center, Austin, TX |
| Tajae Gaynor | Westchester Mediation Center, Yonkers, NY |
| Lela P. Love | Benjamin Cardozo School of Law, New York, NY |
| Jean Sternlight | UNLV Boyd School of Law, Las Vegas, NV |
| Stephen J. Ware | University of Kansas, Lawrence, KS |
| Papers |
| Images of Justice |
| Is ADR Consistent with the Rule of Law? |
| Principles of ADR |
C2: The Way You Do the Things You Do: Advocates Tell Mediators What They Love and What They Hate
In a lively format, highly experienced litigators representing plaintiffs and management discuss mediators’ techniques they find effective or dubious, and share their secrets for successful mediations of employment disputes.
| Judith Bendich | Bendich Stobaugh & Strong P.C., Seattle, WA |
| Abigail Pessen | Mediation Services, New York, NY |
| Michael Reiss | Davis Wright Tremaine LLP, Seattle, WA |
| Jon Howard Rosen | The Rosen Law Firm, Seattle, WA |
| Nancy Williams | Perkins Coie LLP, Seattle, WA |
| Papers | |
| Outline - The Way You do the Thing you do |
C3: Different Perspectives in International Arbitrations
This session will discuss the procedural and substantive differences between domestic and international arbitration proceedings having regard to essential requirements for world-wide enforcement.
| Michael J. Bond | Gardner Bond Trabolsi PLLC, Seattle, WA |
| Peter R. Day | Mercer Island Arbitration Chambers International, Mercer Island, WA |
| Murray L. Smith | FCIArb, Chartered Arbitrator, Smith Barristers, Vancouver BC, Canada |
| Papers | |
| Different Perspectives in International Arbitration | |
C4: When Communities and Corporations Clash, a Case Study: How to Make Peace When a Town Is Up-in-Arms
What do you do when a town is up in arms over environmental contamination, a development project or a plant closing? This session will cover ADR options in resolving such difficult situations, including how to craft solutions to real or feared injury to the community and its individual members. Learn how to mediate such controversies, from early hysteria through resolution and enforcement. Includes a case study of the Pompton Lakes environmental dispute and the ADR techniques used in its resolution.
| Lisa B. Goodman | Young Conaway Stargatt & Taylor, LLP, Wilmington, DE |
| Ross. F. Schmucki | Ross F. Schmucki, Esq., LLC, Swarthmore, PA |
| Papers | |
| Techniques for Land Use Dispute Mediators | |
| The Pompton Lakes ADR Process | |
C5: Online Court - the Future of Small Claims?
With online dispute resolution a growing phenomenon, and a generation of Americans becoming more and more comfortable living their "second lives" online, it may only be a matter of time before court proceedings also take place virtually. This session will present the case for and against an online small claims court, and will examine the barriers, legal challenges, and prospects for an online court. Following a mock debate and a brief presentation, the presenters will facilitate discussion on the resulting challenges for legal educators, ADR practitioners, and court administrators.
| Mary A. Bedikian | Michigan State University College of Law, East Lansing, MI |
| Brian A. Pappas | Michigan State University College of Law, Chicago, IL |
| Papers | |
| Online Court – The Future of Small Claims | |
C6: Facilitation vs. Mediation - Similarities and Differences: Adding Facilitation to Your ADR Repertoire
In this engaging, interactive, facilitated session, learn about the similarities and differences between mediation and facilitation while experiencing first-hand a professionally facilitated session. Learn how facilitation is used in a variety of arenas including workplace and public policy settings. Learn how Facilitators qualify in their field and what mediators need to know to facilitate effectively. Discover how facilitation, as another conflict management process, can add value for your clients and your programs.
| David C. Batson | U.S. EPA Conflict Prevention & Resolution Center, Washington, DC |
| Rita Callahan | Working It Out, Atlanta, GA |
| Cindy Cook | Adamant Accord, Inc., Adamant, VT |
| Lou Gieszl | Maryland Mediation and Conflict Resolution Office, Annapolis, MD |
| Papers | |
| Outline - Facilitation vs. Mediation | |
C7: The Neutral Zone or the Twilight Zone: Mapping the Parameters of Arbitral Authority
Cardegna v. Buckeye Check Cashing was thought to be the final word on whether contract validity questions are for arbitral or judicial resolution. In reality, Buckeye left unanswered a number of important questions which are now being sorted out in state and federal court. The presenters will discuss some of those questions, along with two other emerging issues: (1) the permissibility of contractual provisions for expanded judicial review of arbitration awards, which is currently before the high court in Hall Street Associates, L.L.C. v. Mattel, Inc.; and (2) the authority of arbitrators to award equitable and other non-monetary relief.
| Robert B. Davidson | JAMS, New York, NY |
| Roger Haydock | National Arbitration Forum, Minneapolis, MN |
| Kendall C. Reed | Monroe & Zinder, P.C., Redondo Beach, CA |
| Papers | |
| Material will be provided onsite |
C8: Efficient Emotion: The Latest Science and Skills on Lie Detection and Emotional Skills
This session introduces scientifically tested methods to identify emotions across cultures. It also introduces other scientifically tested ways to study nonverbal communications and verbal patterns themselves to identify emotional "hot spots" that get in the way of negotiation, problem-solving, and settlement. The session also shows how these hot spots may help reveal lies about facts, negotiator goals and bottom lines. In addition, the session also features one faculty identified as one of the sixty best lie detectors of over 30,000 tested!
| Clark Freshman | Hastings College of Law, San Francisco, CA |
| Chris Knowlton | Hastings College of Law Center for Negotiation and Dispute Resolution, San Francisco, CA |
| Papers | |
| Outline - Efficient Emotion | |
C9: Hobbling Through the Three-Legged World of Insurance Mediation: How to Get More Third-Party Liability Cases Settled
Cases involving third-party liability insurance provide tricky challenges for mediators. People behave in the most unpredictable ways! Plaintiffs plead curious claims to trigger coverage, then pull their punches to avoid blowing that coverage. Policyholders deny wrongdoing, then beg carriers to dig them out of deep trouble. Carriers deny responsibility, then sometimes shell out big bucks. How is a mediator to make sense of all this and juggle all the balls in the air? In this session, experienced practitioners tell what makes disputants tick and give valuable tips on how to help them solve their problems.
| Thomas M. Jones | Cozen O’Connor, Seattle, WA |
| Jeff Kichaven | JAMS, Los Angeles, CA |
| Jonathan Roth | ACE-USA, Philadelphia, PA |
| Michael Wrenn | Heller Ehrman LLP, Seattle, WA |
| Papers | |
| Courageous Carriers Meaningful Mediations | |
| Insurance Bad Faith and Mediation Confidentiality | |
| Insurance Coverage Litigation | |
C10: Environmental and Land Use Mediation--What Works, What Doesn't and Why
This session is a moderated panel discussion featuring mediators experienced in handling environmental and land use disputes. The presenters will focus on how mediation has been used in the environmental and land use arena in the Pacific Northwest, the particular challenges of mediating in this context, strategies for success and lessons learned. Environmental and land use mediation typically has an unusual variety of participants including representatives of citizen groups, government agencies and the political community. This session will address how to make mediation a more effective and more widely used alternative for resolving environmental and land use disputes. The session will include a question and answer session with the attendees.
| Daniel P. Dozier | Press & Potter, LLC, Bethesda, MD |
| Denise Dee Knapp | Accord & Collaboration, Seattle, WA |
| Adam Gravley | Gordon Derr LLP, Seattle, WA |
| Cassandra Noble | State of Washington Environmental Hearings Office, Lacey, WA |
| Alice Shorett | Triangle Associates, Seattle, WA |
| Papers | |
| Outline - Environment and Land Use Mediation | |
| Finding Common Ground Sugarbush | |
| Stakeholder Collaborative Processes | |
Series D: Thursday, April 3 3:30 – 5:00 pm
D1: Mediation Tips from the Masters on Video
This session is a follow-up to last year's standing room only program featuring 6-7 of the most sought-after and successful commercial mediators individually responding in video interviews to questions about how they conduct mediations. The video excerpts, with new footage, are tightly edited and sequenced topically from pre-mediation through finalizing agreement presenting contrasting styles. Insights and diverse tips about how to reach agreement are offered. Live presenters Jay Folberg and Jay Welsh will put the excerpts in context and help draw gems from the interviews. Audience participation and will be encouraged and is part of the program.
| Jay Folberg | JAMS, San Francisco, CA |
| John (Jay) Welsh | JAMS, Irvine, CA |
| Papers | |
| Material will be provided onsite | |
D2: Lawyers as Problem Solvers: The Aurora Bridge Bus Tragedy: Caring for People, Taking Care of the County Funds
In November 1998 a deranged passenger boarded a King County Metro Transit bus, shot the driver then himself. The moving bus crossed the centerline and crashed through the Aurora Bridge railing, plunging nearly 50 feet to the ground below. The bus carried thirty-three passengers, ages 13 to 76, from all walks of life. Injuries included fatalities, limb amputations, severe bone fractures, closed head injuries, and serious internal injuries. King County provided immediate medical help and ongoing assistance for survivors. With our clients' permission, the presenters will share this compelling case study involving successful strategies used to mediate humane and responsible settlements.
| Michael C. Duggan | Attorney at Law, Seattle, WA |
| Linda M. Gallagher | King County Prosecuting Attorney's Office, Seattle, WA |
| Papers | |
| The Aurora Bridge Bus Tragedy | |
D3: Wondering What to Disclose and How to Do It? Best Practices for Meeting Arbitrator Disclosure Standards
One the most controversial (and ever changing) areas of arbitrator practice is the extent of disclosure required to meet statutory and court established disclosure standards. In 2006, the ABA Section of Dispute Resolution's Arbitration Committee established a Disclosure Subcommittee to recommend user friendly disclosure guidelines for arbitrators. At the 2007 Section of Dispute Resolution Conference, the Committee presented a first draft of its proposed guidelines, with the understanding that they would be circulated to the ADR community and service providers for comment and feedback. This panel will present a revised and updated version of the Committee's proposed guidelines, including feedback received between the 2007 Section Conference and the 2008 Conference.
| Kurt L. Dettman | Constructive Dispute Resolutions, Hingham, MA |
| Russel Murray | ADRcom, Denver, CO |
| Catherine E. Shanks | American Arbitration Association, E. Providence, RI |
| James Stone | JAMS, Denver, CO |
| Michael J. Timpane | Timpane ADR Services, Oakland, CA |
| Papers | |
| Material will be provided onsite |
D4: Multi-generational Conflict in the Health Care Workforce: ADR Professionals as a Potential Health Care Organization Resource
Documentation of the broken US Health Care System is now commonplace. Provider communities, challenged to give care in these environments, encounter increased conflict. Less noted are the projected provider shortages, provider exits from the workforce, and replacement uncertainties. Multi-generational conflict has concurrently escalated. Health care organizations, burdened with hierarchical structuring and conflict avoidance, seek assistance in crafting relationships responsive to a multi-generational workforce. Creating healthy work environments is a priority; skills are sought. The informed, culture sensitive ADR professional is a potential organizational resource. A case-based exploration of training, intervention, and facilitation projects will provide guidance to interested participants.
| Debra Gerardi | Werner Institute, Creighton University, Half Moon Bay, CA |
| Phyllis Beck Kritek | Consultant and Trainer, Half Moon Bay, CA and Adjunct Faculty, Werner Inst. for Neg. and DR, Creighton University School of Law, Omaha, NE |
| Papers | |
| Multi-generational Conflict Health Care |
D5: Mediating with Heart, Soul, and Humanity - Court-connected Mediation as a Source of Values for Elevating Mediation Practice
Court-connected mediation is frequently criticized as an inferior process driven by the utilitarian goal of docket reduction, dominated by lawyer-advocates --to the exclusion of their clients -- and focused almost exclusively on the narrowly defined legal problem. This session offers an alternative view of court mediation, examining the ways effective court mediation programs can establish and ensure the highest standards of mediation practice. Based on the lengthy experience of the presenters with court-based mediation that is broadly focused, interest based, and compassionate, the session will address the special role court mediation programs can play in promoting client-centered mediation practice.
| Claudia Bernard | 9th Circuit Court of Appeals, San Francisco, CA |
| Daniel Bowling | U.S. District Court, N.D. California, San Francisco, CA |
| Dana Curtis | Dana Curtis Mediation, Sausalito, CA |
| Howard Herman | U.S. District Court, N.D. California, San Francisco, CA |
| Papers | |
| Mediation with Heart, Soul and Humanity | |
The World Bank Group and the International Monetary Fund, headquartered in Washington, D.C., employ staff from 185 countries and have offices around the world. The presenters will discuss some of the challenges of working together with staff from all over the world and how mediators and the Ombuds must be very sensitive to diversity concerns and differences.
| Wilbur Hicks | International Monetary Fund, Washington, DC |
| Deborah Schick Laufer | The World Bank Group, Washington, DC |
| Linda Toyo Obayashi | Attorney/Mediator, Baltimore, MD |
| Papers | |
| Material will be provided onsite | |
D7: Stakeholder Perspectives - From Licensing to Implementation: A Multi-Party Negotiation Success Story
This session is comprised of diverse parties and the mediator from the complex multi-party re-licensing negotiations for Portland General Electric's Pelton Round Butte hydropower facility located in Central Oregon. The collaborative negotiation process resulted in a comprehensive settlement agreement between 20 parties. Presenters include representatives from the utility, a federal agency, a state agency, an environmental NGO and the mediator. Their insights and perspectives offer participants a replicable example of consensus agreements that are resilient through implementation. This case study is an excellent model of diverse interests overcoming barriers and creating an economically viable and environmentally beneficial outcome.
| Kurt Burkholder | Oregon Department of Justice, Portland, OR |
| Jane Hannuksela | National Oceanic and Atmospheric Administration, Seattle, WA |
| Julie Keil | Portland General Electric Company, Portland, OR |
| Debra Nudelman | Kearns & West, Inc., Portland, OR |
| Brett Swift | American Rivers, Portland, OR |
| Papers | |
| Stakeholder Perspectives Power Point | |
D8: Multiple Minds and Mindsets in Mediation
Mediators try to help disputing parties reach settlements that maximize their objectives. However, people aren’t particularly good at making value-maximizing decisions, especially when they are under the kinds of stresses produced by litigation. This session will discuss the ways in which psychology, intuition, faith and heuristics can facilitate or impede a mediator in the quest to get the parties the best available deal.
| Richard Birke | Willamette Center for Dispute Resolution, Salem, OR |
| Donald R. Philbin, Jr. | Donald R. Philbin, Jr., P.C., San Antonio, TX |
| Papers | |
| Of Three Minds | |
| The Psychology of Bad Economic Decisions | |
D9: Negotiating By The Numbers
This session is an introduction to Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes published by the ABA last year. The book describes the recurring problems of position-based bargaining in the negotiation and mediation of insured claims and provides a model for resolving those claims in a way that is facilitative, client-centered, process-oriented and communication focused. As an introduction, the session focuses on identifying the characteristics of money disputes that lead to premature impasse and on outlining a model of the mediation process that is effective in facilitating positional bargaining.
| J. Anderson Little | Mediation, Inc., Chapel Hill, NC |
| Papers | |
| The Language of Numbers | |
| The Rear Ender Facts | |
| Mediating the Settlement of Insured Claims and Other Monetary Disputes - Chapter | |
D10: Creativity in Mediation: Theater Tools for Mediators and Mediation Trainers
Creativity is a key component in mediation and conflict resolution, and a daunting task for mediators can be how to inspire parties in conflict to be creative. Many forms of theatre lend themselves particularly well to enhancing creativity for mediation training and practice. This session will explore recent research into the connection of theatre, law and mediation, and will interactively explore the use of theatre tools in mediation training and practice. Theatrical models explored will include improvisational theatre, image and form theatre, playback theatre, sociodrama and psychodrama. This workshop will be highly participatory.
| Carrie Gallant | Gallant Solutions Inc., Vancouver, BC Canada |
| Sharon Sutherland | University of British Columbia Faculty of Law, Vancouver, BC Canada |
| Papers | |
| Theatre for Mediators | |
Friday Morning Plenary 8:30 – 10:00 am
Grand Ballroom
Women Don’t Ask: Negotiation and the Gender Divide
In their ground breaking book, Women Don't Ask, Linda Babcock and Sara Laschever uncovered a startling fact: even women who negotiate brilliantly on behalf of others often hold back when it comes to negotiating for themselves. They find that men are about four times as likely as women to initiate negotiations to ask for what they want. In their new book, Ask for It, Babcock and Laschever explain why it’s essential for women to ask and teaches them how to ask effectively. Their four-phase collaborative, problem-solving approach, backed by years of research, shows women how to identify what they’re really worth, maximize their bargaining power, develop the best strategy for their situation, and manage the reactions and emotions that may arise—on both sides.
This plenary will give mediators and lawyers who represent women a new and necessary perspective about how women can use their collaborative problem solving approach to negotiate effectively for themselves. Join us as noted author Linda Babcock discusses her insights about negotiation and the gender divide.
Presenter:
Linda Babcock
Linda Babcock is James M. Walton Professor of Economics at the H. John Heinz III School of Public Policy and Management of Carnegie Mellon University in Pittsburgh, Pennsylvania. She has also been a visiting professor at Harvard Business School, The University of Chicago Graduate School of Business, and the California Institute of Technology. A specialist in negotiation and dispute resolution, her research has appeared in the most prestigious economics, industrial relations, psychology, and law journals. Her book, Women Don’t Ask was named by Fortune Magazine as one of the 75 smartest business books of all time.
Series E: Friday, April 4 10:15 -11:45 am
E1: Women in Negotiation: Skills and Strategies for Success
Recent research, including the many studies cited in Babcock and Laschever’s seminal work, Women Don’t Ask, shows that women and men do negotiate differently, both on behalf of themselves and on behalf of others. What are these differences? Are they static or do they evolve over time? How important are they to the process and the result in deal-making and dispute resolution? In this interactive session, a panel of veteran dispute resolution professionals, former litigators and a law school faculty member and former judge among them, will give their perspectives on gender differences in communication and negotiation and will encourage audience input.
| Rosemarie Annunziata | JAMS, Washington, DC |
| Linda Babcock | Carnegie Mellon University, Pittsburgh, PA |
| Taylor Daly | Nelson Mullins Riley & Scarborough LLP, Atlanta, GA |
| Joan C. Grafstein | JAMS, Atlanta, GA |
| Margaret L. Shaw | JAMS, New York, NY |
| Linda R. Singer | JAMS, Washington, DC |
| Papers | |
| Women in Negotiation | |
E2: A 360 View of Employment Mediations - What Does Everyone Expect?
A four-member panel composed of the in-house employment counsel, a plaintiff-side labor/employment lawyer and two mediators will present an interactive discussion on the expectations of the mediator, the attorneys, and the clients in employment mediations. The goal of the discussion will be to create a dialogue between mediators and advocates both on the panel and in the audience in order to explore preferred and disfavored practices, to assist in improving preparation for each mediation stage, and to increase awareness of the differing and changing roles of each party during the mediation process.
| Elizabeth Ford | Seattle University School of Law, Seattle, WA |
| Martin Goldfinkel | Schroeter, Goldmark and Bender, Seattle, WA |
| Nancy Maisano | Maisano Mediation, LLC, Seattle, WA |
| Susan Mask | Washington Mutual, Seattle, WA |
| Papers | |
| A 360 Degree View of Employment Mediation | |
E3: The Irresolvable Case Can be Resolved!
Faculty from the plaintiff, defense and mediator perspectives will use scenarios taken from actual cases to describe financial and non monetary options that can be included in your toolbox to resolve the irresolvable case.
| Len Blonder | EPS Settlements, Los Angeles, CA |
| Deborah Chang | Cabaniss Smith Toole & Wiggins, PL, Maitland, FL |
| Ilana S. Hanau | AIG Domestic Claims, Inc., New York, NY |
| Brian Panish | Panish Shea & Boyle, LLP, Los Angeles, CA |
| Teresa Wakeen | Wakeen & Associates, Baltimore, MD |
| Papers | |
| 'Irresolvable' Case Scenarios | |
E4: Utilizing the Internet to Offer the Most Capable Mediation Services
Most of us are already "online mediators." We have web sites, we use email, we send attachments, we direct participants to valuable web resources. This session will consider how we can most capably utilize the Internet to augment our face to face services and where all of this may be heading.
| Jim Melamed | Mediate.com, Eugene, OR |
| Papers | |
| Material will be provided onsite |
E5: Balancing Acts: Designing Fair and Effective Systems for Addressing Complaints about Mediators
This session will provide an overview of the systems for handling complaints against mediators in Virginia and California. Through mock complaint scenarios, common programmatic and policy issues raised in the handling of complaints, such the scope and application of the Complaint Rules and Standards of Ethics, due process considerations and confidentiality issues will be discussed.
| Heather Anderson | Judicial Council of California, San Francisco, CA |
| Geetha Ravindra | Geetha Ravindra Dispute Resolution Services, Glen Allen, VA |
| Alan Wiener | Judicial Council of California, Burbank, CA |
| Papers | |
| Outline - Designing Grievance Systems | |
| Steps in Various State Grievance Procedures | |
| Virginia ADR Procedures | |
E6: Mediating Same-Sex Dissolution Conflicts: Legal, Social, and Psychological Dynamics of the Gay Divorce
An increasing number of same-sex couples are acquiring property, raising children, and marrying and/or registering as civil union/domestic partners. Over time, many will break up, and their dissolutions raise challenging issues for mediators. The legal landscape is evolving and uncertain, the role of law is often disputed, and the gap between inner expectations and legal outcomes can be enormous. Mediators handling these dissolutions need to be aware of these legal and the emotional dimensions. This session will outline the core issues arising in same-sex dissolutions, and offer psychological insight into the recurring dynamics of these mediations.
| Frederick Hertz | Law Offices of Frederick Hertz, Oakland, CA |
| Stacey Shuster | Clinical Psychologist, Private Practice, San Francisco, CA |
| Deborah Wald | The Wald Law Group, PC, San Francisco, CA |
| Papers | |
| Outline of Issues | |
| Same Sex Discussion Checklist | |
| Understanding the New Legal Social Framework | |
| Same Sex Discussion Hypos | |
| Protecting the Families Standards for Child Custody in Same-Sex Relationships | |
E7: Federal ADR Trends: The Impact on Parties and Practitioners
The federal government is currently experimenting with some new trends in ADR practices, such as partnering and public dialogues. The focus is more on preventing disputes rather than merely resolving them. These new practices will have an impact on your practice -- either as a neutral or as an attorney representing a party. Cases now call for a specifically tailored ADR approach and flexibility in its application. This session will address construction dispute panels, environmental rule-making and public consensus-building, conflict management systems for the workplace, and other proactive applications of ADR which call for a new set of skills and strategies for both advocates and neutrals.
| Joanna M. Jacobs | US Department of Justice, Washington, DC |
| Cindy Mazur | Federal Emergency Management Agency, Washington, DC |
| D. Leah Meltzer | Securities and Exchange Commission, Washington, DC |
| Richard Miles | Federal Energy Regulatory Commission, Washington, DC |
| Papers | |
| Federal ADR Trends | |
| Use of Alternative Dispute Resolution Process Reported by Agencies | |
E8: Dispute Boards: What are They and How Will they Revolutionize the Resolution of International Disputes?
Dispute Boards are a standard for international construction contracts and are beneficial in other types of mid- to long- term contracts. Comprising one or three members thoroughly acquainted with the contract and its performance, Dispute Boards informally assist the parties in resolving disagreements arising in the course of the contract and make recommendations or decisions regarding disputes referred to it. They are normally set up at the outset of a contract, remain in place and are remunerated throughout its duration.
| James P. Donaldson | Construction Consulting Services, Seattle, WA |
| Ronan J. McHugh | Thelen Reid Brown & Raysman and Steiner, LLP, Washington, DC |
| Robert J. Smith | Akerman, Senterfitt, Madison, WI |
| Nancy Thevenin | ICC, New York, NY |
| Papers | |
| Material will be provided onsite | |
E9: Out of Bounds Mediation - What Happens When Mediators Can Have Career - and Life-Altering Consequences and Confidentiality is Not Assured
Mediations of enormous public interest and many policy related mediations do not always observe confidentiality. States are often subject to open meeting rules and the sheer number of participants in some mediations or the highly controversial nature of others make confidentiality of the process an aspiration but not a reality. In these cases, elected and appointed officials may bear the political fallout of unpopular settlements and civil and criminal consequences may follow the settlement of disputes involving negligent or questionable behavior. Mediators who mediate these types of disputes must manage the public learns and be sensitive to the consequences that participants may experience in the process and how it will affect their willingness to settle. Interaction with the news media and shaping the portrayal the dispute has in the press may be an important element to achieve resolution. Using actual examples from Washington State and Boston Big Dig of cases with major national and local public interest, the techniques and tools for settling these disputes will be discussed. Reporters, public officials, and participants involved in covering the dispute will be panelists.
| John Bickerman | Bickerman Dispute Resolution PLLC, Washington, DC |
| Gabriel S. Galandra | Williams Kastner & Gibbs PLLC, Seattle, WA |
| William Hartgering | JAMS, Chicago, IL |
| Papers | |
| Material will be provided onsite | |
Series F: Friday, April 4 1:45 – 3:15 pm
F1: Using Nonviolent Communication (NVC) to Resolve Conflicts
This program will provide role-play demonstrations of NVC Mediation, with audience members invited to play the disputant and mediator roles. Discussion, questions, and comments will be encouraged throughout. The NVC approach focuses on connection before outcome; connection meaning that each party trusts they have been heard to their satisfaction by the other parties -- heard not only as to their "story," but heard as to the underlying needs that have not been met in the conflict. With this connection present, the process moves to collaborative problem solving. This session will mirror the mediation process being demonstrated.
| John Kinyon | JBK Solutions, El Sobrante, CA |
| Ike Lasater | Words That Work, San Francisco, CA |
| Papers | |
| Outline - Using Nonviolent Communication to Resolve Conflicts | |
| Mediation Model of Nonviolent Communication | |
F2: When Race is the Issue
Have you ever mediated a case where your gut told you race was an issue? This session will confront important questions that you may have considered. As a mediator, do I bring up the topic of race or do I wait for the parties to raise the issue? Do I feel confident to facilitate a conversation about race? This training is both self reflective (using dialog and inquiry techniques) and practical (using role play techniques). Come expecting to step out of your comfort zone and enter a transformative learning environment.
| Ann McBroom | King County Alternative Dispute Resolution Program, Seattle, WA |
| Henri McClenney | InterLocal Conflict Resolution Group, Seattle, WA |
| Papers | |
| When Race is the Issue | |
F3: Class Action Arbitration
Class arbitration is the most controversial issue today in the world of ADR. Join presenters as they explore the in’s and out’s of this "hot" topic. The session will examine not only the key legal issues in class arbitration but also the practical issues faced by arbitrators and lawyers representing parties in these unique proceedings.
| Gene Farber | Farber Pappalardo & Carbonari, White Plains, NY |
| Bruce Meyerson | Sandra Day O'Connor College of Law at Arizona State University, Phoenix, AZ |
| Papers | |
| Material will be provided onsite |
F4: Meaningful Negotiation: A Cross-Cultural Perspective
Current intervention programs must re-evaluate existing practices in order to embrace the diversity among people who comprise American society today. In court and other family service programs, providers are grappling with the numerous challenges of implementing systemic change, within all aspects of service provision, to respond effectively to the multiple needs of individuals and families from diverse cultural, ethnic, racial and linguistic groups. This session will present a conceptual framework for understanding culture and provide practical strategies for valuing diversity, managing the dynamics of difference, and negotiating effectively across cultures.
| Suganya Sockalingam | TeamWorks, Las Vegas, NV |
| Elizabeth Waetzig | Change Matrix, LLC, Washington, DC |
| Papers | |
| Material will be provided onsite | |
F5: Ethical Duties of Lawyers and Mediators in Mediation: Guidance from the Model Rules
The ABA’s Model Rules of Professional Conduct, and Washington State’s adoption of the rules, the Uniform Mediation Act
(UMA), and the Model Standards of Conduct for Mediators provide excellent guidance to litigators and mediators concerning their ethical duties in the settlement negotiations and the mediation process. Several of the new rules will be explained and highlighted by the experienced mediators leading this session. Participants will then be given the opportunity to discuss and apply the rules and the standards by discussing some hypothetical scenarios, and will share their insights and practice tips with the group as a whole.
| Julia Ann Gold | University of Washington School of Law, Seattle, WA |
| Alan Kirtley | University of Washington School of Law, Seattle, WA |
| Kathleen Wareham | Kathleen Wareham Dispute Resolution Services, Seattle, WA |
| Papers | |
| Ethical Duties of Lawyers in Mediation | |
| User's Guide to UMA with References to Model UMA Sections | |
| Model Standards of Conduct for Mediators | |
F6: Beyond Orthodoxy: The Adaptive Mediator in a Perpetually Changing Marketplace of Clients, Needs, Wants, Hopes and Fears
The conventional wisdom of the last 25 years has turned mediation into a set of narrow, technical activities. More worrisome, there are a growing number of "schools" of mediation, some them cult-like, and each with their own set of orthodoxies. This session will explore the deeper, underlying master patterns of assisted negotiation and how to draw the best from all of them into your practice.| Peter S. Adler | The Keystone Center, Keystone, CO |
| Robert D. Benjamin | Mediation and Conflict Management Services, Portland, OR |
| Papers | |
| Outline | |
| Guerilla Mediation | |
| Protean Negotiation | |
| Wonks Shamans Warriors Dealmakers | |
F7: The Role of ADR in Corporate Accountability of Human Rights
Several organizations are simultaneously studying the unique problems of corporate accountability when working on investment projects or other business activities that have an impact on public and quasi-public stakeholders, including indigenous populations and other local communities. This session will report on those investigations and stimulate discussions of possible approaches, which may involve the use of alternative dispute resolution techniques.
| Mark Moseley | World Bank Group, Washington, DC |
| F. Peter Phillips | International Institute for Conflict Prevention and Resolution, New York, NY |
| Caroline Rees | Harvard University, New York, NY |
| Jo Render | Newmont Mining Corporation |
| Papers | |
| ADR and Human Rights | |
| Rights-Compatible Grievance Mechanisms | |
F8: Around the World in 90 Minutes: International ADR Developments and Trends
This session will address the use of ADR, trends and developments in major regions of the world, including: Asia (China),
England, Europe, and Latin America.
| Cedric Chao | Morrison & Foerster, San Francisco, CA |
| Mariana Hernandez-Crespo | University of St. Thomas, Minneapolis |
| Nancy Nelson | International Institute of Conflict Prevention and Resolution, New York, NY |
| Jacqueline Nolan-Haley | Fordham Law School, New York, NY |
| Papers | |
| Consent in Mediation | |
F9: What ADR Consumers Want from Mediators, Arbitrators and Neutrals
What are attorneys and other ADR consumers looking for when they select a mediator, arbitrator or other neutral for paying work? This panel of sophisticated ADR consumers will explore and discuss how mediators can best position themselves to attract the best clients and referral sources.
| Roman Hernandez | Schwabe, Williamson & Wyatt, Portland, OR |
| Jeff Kichaven | JAMS, Los Angeles, CA |
| Peter J. Mintzer | Cozen O'Connor, Seattle, WA |
| Samuel R. Watkins | Heller Ehrman LLP, Seattle, WA |
| Papers | |
| Purchasing Habits of Sophisticated Mediation Services Consumers | |
| Response to Purchasing Habits | |
| Urban Legends of Mediator Selection in Patent Insurance Cases | |
F10: Emerging Trends in ADR for California Construction Litigation
In January 10, 2007, the Court of Appeal issued the Jeld Wen v. Superior Court decision which limited the powers of a mediator/special master in handling complex cases. Join presenters as they discuss their strategies for successfully litigating and resolving construction defect and other complex cases in this new world.
| Katherine Gallo | Discovery Referee, Foster City, CA |
| Jill Lifter | Ryan & Lifter, Danville, CA |
| Gordon McClintock | Special Master and Mediator, Redwood City, CA |
| Papers | |
| ADR in California Construction Litigation | |
Series G: Friday, April 4 3:30 – 5:00 pm
G1: The Science of Settlement
Many important discoveries have been made in recent years in the study of human judgment and decision-making. Investigators in cognitive science, behavioral economics, decision theory, evolutionary psychology and game theory have all advanced our understanding of how people make up their minds and how they change their minds. These ideas can, and should, inform the practice of dispute resolution. This session will introduce several ideas from the scientific literature and flesh out the practical application of those ideas in negotiation and mediation.
| Barry Goldman | Barry Goldman Arbitration and Mediation, Bloomfield Hills, MI |
| Zena Zumeta | Mediation Training & Consultation Institute, Ann Arbor, MI |
| Papers | |
| The Science of Settlement | |
G2: Unique Aspects of Construction Arbitration: Block by Block
The format for this session will follow an agenda for a preliminary hearing in a construction matter. Topics covered will include conflict disclosures (since many in the industry know each other, thus creating a greater possibility for conflicts), the parties’ ADR clause, dysfunctional clauses, recent changes to the widely used AIA documents and the debut of the new family of ConsensusDOCS. Discovery topics will include a discussion of site visits, witness concerns will cover the use of "tandem" experts, and document production will include suggestions for managing the large volume of materials prevalent in these document-heavy cases.
| Dennis A. Estis | Greenbaum, Rowe, Smith & Davis, LLP, Woodbridge, NJ |
| Donald W. Gregory | Kegler, Brown, Hill & Ritter, Columbus, OH |
| Carl F. Ingwalson | Phillips, Haskett & Ingwalson, a PC, San Diego, CA |
| Judith Ittig | Ittig & Ittig, PC, Washington, DC |
| James R. Madison | Mediator & Arbitrator, Menlo Park, CA |
| Papers | |
| Outline | |
| A New Age of Consensus Article | |
| ADR in the New AIA 2007 and Consensus | |
| Discovery in Arbitration | |
| DWG - Statement of Mediator Qualifications | |
G3: Supreme Court Arbitration Jurisprudence: Present and Future Cases
The session will discuss Hall Street Associates, LLC v. Mattel, Inc., currently pending before the United States Supreme Court, and other cases that are possible future candidates for Supreme Court review. Issues to be addressed include: the enforceability of provisions for expanded review of arbitration awards (at issue in Hall Street Associates); Federal subject matter jurisdiction over actions to enforce arbitration agreements; and the jurisdictional scope of the Federal Arbitration Act; i.e., when do contracts sufficiently affect interstate commerce so that the Federal Arbitration Act applies?
| Rick Bales | NKU/ Chase College of Law, Highland Heights, KY |
| Sarah Rudolph Cole | Moritz College of Law, Ohio State University, Columbus, OH |
| Christopher R. Drahozal | University of Kansas School of Law, Lawrence, KS |
| Homer La Rue | Howard University School of Law, Washington, D.C |
| Papers | |
| Supreme Court Arbitration Jurisprudence | |
| Revising the FAA to Permit Expanded Judicial Review of Arbitration Awards | |
| The Vaden-Westmoreland Circuit Split | |
G4: Breakthroughs, Benefits, and Backfires of Apology in Litigation
The law has been largely impotent to repair the deep wounds and relational injuries that underlie much litigation and mediation, particularly in the fields of medical mistake and wrongful termination cases. This session, while speaking specifically to medical mistake litigation, examines the underlying benefits to all parties from transparency and relational repair through apology. It details how to apologize effectively, and how "bad" apologies work to make things worse. Each presenter speaks from an experienced perspective as well as from research.
| Karen S. Fasler | Private Practice, Rochester, WA |
| Debra Gerardi | Werner Institute, Creighton University, Half Moon Bay, CA |
| Dale Hetzler | Children's Healthcare of Atlanta, Atlanta, GA |
| Darrell L. Puls | Peacebridge, Inc., Kennewick, WA |
| Papers | |
| The Elements of Successful and Failed Apologies | |
G5: Does Our Mediation Orientation Impact Our Interpretation of and How We Apply the Model Standards of Conduct?
Facilitative, Transformative, and Evaluative mediators are all bound by the Model Standards. This session will pose ethical hypothetical’s to mediators from each mediation orientation (the mediators will be selected ahead of time and be part of the panel) and see how they react to the same situation and how they interpret the applicable model standards that apply to the situation. Interactive participation from the audience is encouraged in addition to small group participation to discuss examples.
| Timothy Hedeen | Kennesaw State University, Kennesaw, GA |
| Ellen Waldman | Thomas Jefferson School of Law, San Diego, CA |
| Roger C. Wolf | University of Maryland School of Law, Baltimore, MD |
| Papers | |
| Power Point Presentation | |
G6: How to Avoid the Breakdown of a Family Law Mediation or Collaborative Practice Case
This panel of experienced family law attorneys specializing in mediation and collaborative practice will explore methods to avoid potential breakdowns in the mediation or collaborative case. Practice pointers for recapturing the momentum for a successful collaborative practice or mediation case will be demonstrated. Anticipated questions such as use of consulting attorneys, personality conflicts, imbalance, variation on the laws and impasse will be presented, together with answers from all panel members. An innovative concept combines select tools from mediation and collaborative law in order to avoid impasse and facilitate a smooth transition for the disputants. Medicollab is now another ADR model being used by some practitioners.
| Frederick J. Glassman | Mayer & Glassman Law Corporation, Los Angeles, CA |
| Michelle Katz | Law and Mediation Offices of Michelle Katz, Los Angeles, CA |
| Judith C. Nesburn | Law Office Of Judith C. Nesburn, Los Angeles, CA |
| Paula H. Noe | Bowman, Moos, Elder & Noe, LLP, Cambridge, MA |
| Papers | |
| How to Avoid the Breakdown of a Family Law Mediation or Collaborative Practice Case | |
| Anticipated Questions and Answers from the Panel Members | |
G7: Mediating Indian Tribal Disputes: Sacred Sites
No dispute involving Indian tribes and non-Indians and their governments have greater emotional content and the potential for misunderstanding of culture than those involving the disturbance and desecration of ancestral burial grounds. Because tribes and non-Indians have different belief systems for their departed ancestors, the hurt, grief, and continuing sense of loss and anxiety are not easily understood by non-Indians. By studying the experiences of the Lower Elwha Klallalm Tribe, we can learn how these strong emotions contrast and conflict with more traditional economic motivations of business and government leaders. The experiences of the Lummi and the Lower Elwha may very well be the tip of the iceberg of potential disputes involving tribal ancestral burial grounds and economic development.
| John Bickerman | Bickerman Dispute Resolution, PLLC, Washington, DC |
| Frances G. Charles | Lower Elwha Klallam Tribe, Port Angeles, WA |
| Gabriel S. Galandra | Williams Kastner & Gibbs PLLC, Seattle, WA |
| Cyndy Mackey | US EPA Region 10, Seattle, WA |
| Papers | |
| 21st Century Indian Wars | |
| Graving Yard Deal | |
G8: What is Settlement Counsel and Why Should I Care?
We know that liti