ADR and Culture
What I'm Reading
For scholars and practitioners, ADR offers vast literatures and potential connections. This panel will feature several established ADR scholars speaking about a recent ADR-relevant book or article (or movie, or TV show, or artwork) that was especially resonant for that scholar. Objectives: 1. Bring together people from different parts of the ADR universe, both on the panel and in the audience. 2. Provide a sense of the breadth of ADR-relevant scholarship, to facilitate connections or insights between scholars and/or works that might not otherwise come together (the Reese’s Peanut Butter Cup phenomenon). 3. Relatedly, highlight the diverse literatures that junior or established scholars might turn to in their work. 4. Compile a reading list of new books/materials for ADR classes, workshops, and book groups.
Jonathan Cohen, University of Florida Levin College of Law, Gainesville, FL
Amy Cohen, The Ohio State Moritz College of Law, Columbus, OH
Rebecca Hollander-Blumoff, Washington University School of Law, St. Louis, MO
Bernard Mayer, Werner Institute, Creighton University, Omaha, NE
Jennifer Brown, Quinnipiac University School of Law, Hamden, CT
Jennifer Reynolds, University of Oregon School of Law, Eugene, OR
Michael Moffitt, University of Oregon School of Law, Eugene, OR
Literary Intelligence for Mediators
Literary intelligence is a prime tool for helping mediators develop empathy and creative responsiveness to parties in conflict. The self- awareness and relationship-awareness skills of emotional intelligence can be enhanced by engaging literary representations of conflict. Patterned language in poetry engages the whole person through the senses, emotion, and intellect; drama creates visuals and actions from revenge to reconciliation; while story and the novel offer narrative world-making, helping us imagine possibilities for peace. From Homer, Aeschylus, and Shakespeare, to Louise Erdrich, Maxine Hong Kingston, and Toni Morrison, literary conflicts can help mediators gain strategies to create real-world peace.
Peter Arcese, Peter V. Arcese, Esq., New York, NY
Inga Watkins, Watkins Law and Dispute Resolution, PLC, Alexandria, VA
The Mediator's Moth: Stories Mediators Tell
Inspired by master story tellers in the recently published Stories Mediators Tell, this session will offer new stories in a format inspired by "The Moth," a popular live storytelling event. We will be sharing new stories from Eric Galton and Tio Hardiman, the Director of CeaseFire in Chicago, and we will be seeking participation by those present. Come ready with a story about mediation that you think the world should know. The Moth is a non-profit group dedicated to the art and craft of storytelling, founded in 1997 by poet and novelist George Dawes Green, to recreate the feeling of summer evenings in Georgia, when moths were attracted to the porch light and friends would gather to spin spellbinding tales.
Lela Love, Benjamin Cardozo School of Law, New York, NY
Eric Galton, Lakeside Mediation, Austin, TX
Glen Parker, Benjamin Cardozo School of Law, New York, NY
Tio Hardiman, CeaseFire, Chicago, IL
Construction ADR (International and Domestic)
Alternative Project Delivery: Change is Coming to Dispute System Design
The construction industry has long been a laboratory both for generation of disputes and for resolution of disputes. Virtually every dispute avoidance/resolution technique--partnering, dispute review boards, mediation, and arbitration--has been used. However, current construction dispute system design has been predicated on traditional "risk shedding" contracting approaches. The industry recently has been experimenting with more collaborative methods of project delivery, e.g., Design-Build, Integrated Project Delivery, and PPPs. We will explore a) how more collaborative project delivery approaches are driving parties' behavior toward "project first thinking", materially changing the dispute profile of such projects; b) how this impacts dispute system design so that it better matches the new delivery approaches; and c) how dispute system design could be informed from these more collaborative contracting approaches.
Kurt Dettman, Constructive Dispute Resolutions, Hingham, MA
Chris Kane, AECOM, Princeton, NJ
Deborah Mastin, Broward County District Attorney's Office, Fort Lauderdale, FL
Too Big to Fail - Collaborative Dispute Boards Promote Harmonious Deals
Large complex projects, both public and private, benefit from the assistance of trained neutral experts to reach consensus about unanticipated events that could otherwise derail the project. Dispute Boards originated on construction projects more than 30 years ago, and more recently have been adopted in real estate development and financing projects, mining and energy development projects, and computer software and systems projects. The session details "best practices" of Dispute Board procedures, identifies the contractual provisions that create effective Dispute Boards, and explains how to prepare oneself to be an effective member of a Dispute Board panel.
Kathleen Barnes, Watt Tieder Hoffar & Fitzgerald, LLP, McLean, VA
Deborah Mastin, Broward County Attorneys Office, Ft. Lauderdale, FL
Kerry Lawrence, Herrig & Vogt, Kennewick, WA
Serena Lee, Gleam Law, Of Counsel, Seattle, WA
Corporate, Business, and Commercial
Settlement Counsel: Why, How and When?
Settlement and litigation are two different things, but most clients use the same lawyer to do both. Can special settlement counsel be used to resolve cases faster, better and cheaper? This panel will explore the use of dedicated settlement counsel from the perspectives of client, mediator and settlement counsel – and will provide checklists, tools and other resources for those considering retaining, or becoming, settlement counsel in the future.
John DeGroote, John DeGroote Services, LLC, Dallas, TX
Gary McGowan, McGowan Dispute Resolution, Houston, TX
Christopher Nolland, Law Offices of Christopher Nolland, Dallas, TX
Conflict Management in the Boardroom: New Opportunities for the Dispute Resolution Professional
This presentation will examine an exciting new practice area for the dispute resolution professional – assisting dysfunctional boards of directors, or any other collaborative decisional body, whether in business, government or voluntary organizations, with respect to any and all of the board’s activities. The panel will begin by differentiating this practice area from the traditional practice areas of mediation, arbitration and facilitation of discrete disputes. Following this, the panel will present a process for reliably moving a board from dysfunctionality to effectiveness. Finally, the panel will explore marketing opportunities in this new practice area.
Kendall Reed, Alternative Resolution Centers, Los Angeles, CA
Reginald Holmes, The Holmes Law Firm, Pasadena, CA
Maria Simpson, Personal Skills Management, Los Angeles, CA
Eric van Ginkel, Agency for Dispute Resolution, Los Angeles, CA
Innovative Strategies to Resolve Family Business and Other Organizational Conflicts
Dealing with conflicts can take up 80% of our work time. Family businesses make up approximately 80% of enterprises. The added complexities of family dynamics, including delegation difficulties, new family members, responsibility assumptions, succession processes, and other types of conflicts cause 70% of these businesses to fall apart in the second generation, and 93% in the third generation. Effective resolution requires members to acknowledge how they contribute to the conflict and may even be the cause (Complex Theory), and understand the context and relationships (Systems Theory). Third parties are necessary to support and facilitate resolution processes that enable organizational sustainability. This presentation examines workplace conflicts, with a focus on family businesses, and innovative resolution processes through interactive discussions and role-plays that enhance conflict resolution skills.
Stephanie Stobbe, Menno Simons College at the University of Winnipeg, Winnipeg, MB, Canada
Lilian Vargas, Fundacion Instituto de Mediacion (FIMe), Resistencia, Chaco, Argentina
Collaborative Practice in Family Law: The Bridge between Mediation and Litigation?
This presentation will examine the Cincinnati Academy of Collaborative Professionals (CACP), an organization committed to family-focused divorces through the collaborative modeling collaboratively trained attorneys and neutral professionals such as family relations specialists and financial planners. Specifically, the presentation will visit the organization's history and formation, CACP's unprecedented growth in the practice of family law as an alternative to litigation and traditional negotiation, and to highlight fundamental elements of this model to determine its potential application elsewhere.
Barbara J. Howard, Barbara J. Howard Co. LPA, Cincinnati, OH
Changes in Legal Infrastructure: Empirical Analysis of Collaborative Law Around the World
Changes are happening in the legal profession, including the field of ADR. Change offers new opportunities but also asks of legal professionals to adapt and innovate. Some say lawyers need to become more entrepreneurial, but what does that mean? There is a real need both from a practical and theoretical perspective for systematic empirical research on how best to operate in the 'new' legal market. We illustrate the change in the legal landscape, and its consequence for lawyering and ADR with a study of the development of ‘Collaborative Lawyering’ (CL). A unique data set gives us an overview of the development of the practice of CL in more than 19 countries and offers lessons for providersers and advocates of new ADR processes.
Paola Cecchi Dimeglio, Harvard Law School - Harvard Kennedy School, Cambridge, MA
Peter Kamminga, Harvard Law School - VU Amsterdam University, Cambridge, MA
Using Collaborative Skills with Other Processes in the ADR Toolbox
The panel will demonstrate how skills used in collaborative law may be applied to other dispute resolution procedures. Focusing on the interests, goals, and concerns of their clients rather than positional or rights based bargaining will lead to more creative and satisfying results for the parties. The panel will explain how a slight adjustment in the way lawyers handle their clients’ issues will increase their ability to provide opportunities for successful resolution. Each panel member will comment on a segment of representation beginning with the screening interview and ending with resolution.
Sherrie R. Abney, Collaborative Lawyer, Mediator and Arbitrator, Dallas, TX
Lawrence R. Maxwell, Jr., Attorney - Mediator - Arbitrator, Dallas, TX
Lorraine Lopich, Collaborative Lawyers Pty Ltd, Shellharbour Village, New South Wales, Australia
Robert Lopich, Collaborative Lawyers Pty Ltd, Shellharbour Village, New South Wales, Australia
Dispute System Design
Special Needs ADR: Lessons for English Language Learners from Special Ed Procedures
While federal law recognizes that schools must take “appropriate action” to “overcome language barriers” for English Language Learners (ELL) under the Equal Educational Opportunity Act, it does not specifically provide for ADR procedures, as do laws such as the Individuals with Disabilities Education Act (IDEA). This presentation explores how ADR procedures found within the IDEA (such as resolution sessions and mediations) as well as commonly used ADR procedures not specifically required by the IDEA (such as facilitated resolution sessions) might be used by ELL stakeholders to better meet the educational needs of ELL.
Erin Archerd, Moritz College of Law, The Ohio State University, Columbus, OH
Setting the Table for Appropriate Dispute Resolution: Upstream Innovations in Program Design
The value of "upstream" programs or interventions has been demonstrated across many dispute resolution contexts, from regulatory negotiation ("reg-neg") to open door policies. This panel will showcase upstream innovations in judicial and educational arenas, with an emphasis on ideas for applying research findings to improve program design. It will conclude with commentary from a moderator/commentator with expertise in preventative approaches to dispute system design, andoffer the opportunity for audience discussion.
Tim Hedeen, Kennesaw State University, Kennesaw, GA
Donna Shestowsky, University of California, Davis, CA
Phil Moses, CADRE - The National Center on Dispute Resolution in Special Education, Eugene, OR
Lisa Blomgren Bingham, Indiana University’s School of Public and Environmental Affairs, Bloomington, Bloomington, IN
Designing a Nation-Wide Dispute System that Addresses a Spectrum of Civil Rights
The presenters will compare the systems designs of the U.S. Department of Justice Community Relations Service ("CRS") with other organizations' system designs. The United States Congress has charged CRS with resolving disputes that involve diverse stakeholders, including state and local units of government, as well as private and public organizations. This presentation shows the processes by which CRS administers conflict resolution services to communities as a whole while interacting with various formal legal systems.
Janet Martinez, Senior Lecturer and Director Gould Negotiation and Mediation Program Stanford Law School, Stanford, CA
Synthia Demons, Acting Regional Director, Southwest Region Department of Justice Community Relations Service, Dallas, TX
Justin Lock, Conciliation Specialist Department of Justice Community Relations Service, Chicago, IL
Carol Russo, Senior Conciliation Specialist Department of Justice Community Relations Service, San Francisco, CA
Grande Lum, National Director Department of Justice Community Relations Service, Washington, DC
Employment and Labor
Collateral Consequences: When a Workplace ADR Case Has Complications Outside the Proceedings
In an employment ADR, the outcome of the case could create problems outisde the scope of the dispute that is directly involved. A criminal case may be open that involves the same allegation of worker misconduct. The employee could face a problem with her immigration status, depending on how the case resolves. A company could face a broader government investigation. When in an arbitration or a mediation, how do the parties (and the Neutral) manage the case in light of the possible collateral effects?
Thomas Doyle, Wexler Wallace, Chicago, IL
A Road Less-Traveled: Implementation and Administration of State Government Employment Mediation Programs
In an era of shrinking government budgets, limitations on collective bargaining and civil service reform, employment in the public sector has seen increased environmental pressure and resultant conflict, requiring new approaches to dispute resolution. The federal sector has long had a robust mediation program in employment relations through a “shared neutrals” program. However, while cost-benefit analyses show the advantages of this approach, most states have lagged far behind in their implementation of these programs. In this session, panelists who have designed and administered some of the leading state employee mediation programs will provide specific guidance on how these programs are designed, implemented and administered, as well as the opportunities they present for the mediation community.
Mark Travis, Tennessee Center for Workforce Relations, Cookeville, TN
Sharon Howard, North Carolina Office of State Personnel, Raleigh, NC
Linda Patrick, Personnel Cabinet, Commonwealth of Kentucky, Frankfort, KY
What’s Next for Healthcare Dispute Resolution?
Healthcare organizations are preparing for significant change as a result of the Supreme Court decision, looming election and fiscal cliff facing the industry. Representatives from health plans and providers including health systems and hospitals will lead a discussion on the significant issues facing their respective organizations with the rapidly changing & evolving healthcare landscape. The panel explores healthcare ADR opportunities by outlining existing and new healthcare disputes. Mediators and Arbitrators should be prepared to achieving parties objectives by understanding these new mechanisms and using their expertise to best assist parties who have large complex contractual undertakings.
Michelle M. Skipper, American Arbitration Association, Charlotte, NC
Melinda R. Hatton, American Hospital Association, Washington, DC
Peter H. Walsh, UnitedHealth Group, Minnetonka, MN
Anthony M. DiLeo, Anthony M. DiLeo, PC, New Orleans, LA
Healthcare Dispute Resolution: Innovative Approaches that Bring the CCA Protocols to Life
The growth in healthcare industry disputes has spurred calls for more efficient and appropriate dispute resolution approaches. A panel of healthcare neutrals, scholars and legal advisers to some of the nation’s largest healthcare industry constituencies explore the creation of new customized conflict management tools by stakeholders that define the College of Commercial Arbitrators’ Protocols for Expeditious, Cost-Effective Commercial Arbitration, allowing healthcare companies to resolve their disputes more efficiently while maintaining ongoing business relationships. The discussion examines innovative methods for resolving disputes between healthcare providers and payors as well as models for improving collaboration and communication between opposing sides in the wake of expanding healthcare industry reforms.
Michelle M. Skipper, American Arbitration Association, Charlotte, NC
Thomas J. Stipanowich, Straus Institute for Dispute Resolution - Pepperdine University School of Law, Malibu, CA
Craig H. Smith, Hogan Lovells, Miami, FL
Alan D. Lash, Lash & Goldberg, LLP, Miami, FL
Low-Cost, Efficient, Entertainment-Related Dispute Mediation
New digital distribution channels have wrought major changes in the ways that entertainment products and services travel from creator to consumer. Traditional "gate-keepers" like publishers and record labels, are no longer essential to distribute creative works to the public, because creators can do that for themselves. Those creators, however, often lack the same financial resources or legal acumen to deal effectively with a high-cost, slow, and overburdened court system. Accordingly, these innovations in distribution have increased the need to find new ways to resolve disputes. This panel will review a proposal for a different approach by which a standardized protocol would be offered by a qualified law firm, bar association, trade organization, and/or existing ADR entity that wished to adopt it, in which scheduling, duration, and cost of dispute resolution would be established at the outset and made accessible to disputants of limited means.
Steven Beer, Franklin, Weinrib, Rudell & Vassallo, P.C, New York, NY
Neil Rosini, Franklin, Weinrib, Rudell & Vassallo, P.C, New York, NY
William Landes, University of Chicago School of Law, Chicago, IL
Representing Clients in ADR
Dispute Resolution & E-Discovery
Four editors and authors of the Westlaw book "Dispute Resolution and e-Discovery" will present their chapters and engage in an interactive discussion on current issues and developments in this cutting edge field. Topics include: keyword mediation, predictive coding, sanctions and litigation holds, e-discovery in arbitrations at JAMS, AAA, CPR, et al., and mediation and discovery. Panelists explore how use of different ADR processes offers ways to control cost, distraction, time and complexity in this burgeoning area of discovery. We also reflect on differences in information sought in discovery and the deeper, broader set of information pertinent to mediation and negotiation. This program is designed for neutrals and advocates alike.
Simeon H. Baum, Resolve Mediation Services, Inc., New York, NY
Yoav M. Griver, Zeichner Ellman & Krause LLP, New York, NY
Daniel B. Garrie, Law & Forensics LLC, Los Angeles, CA
Steven C. Bennett, Jones Day, New York, NY
How to Share a Mediator’s Powers: The Advocate’s Perspective
Mediators have powers, and good advocates take advantage of them to advance their clients’ bargaining goals. This program presents new video which shows how litigators develop tactics with clients in private and how two leading commercial mediators deal with “difficult” advocates. Some techniques contradict classic mediation theory, but anyone practicing in the commercial sector needs to understand them. This session combines video excerpts, litigator comments and audience discussion to probe unique perspectives on advocacy in legal mediation.
Dwight Golann, Suffolk University Law School, Boston, MA
Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH
Arbitration: We Are Your Panel and We Are Here to Help
Success in arbitration requires understanding the "rules of engagement" -- the strategy and tactics that advocates and arbitrators follow. This interactive panel of arbitrators, former state and federal trial and appellate judges and a highly experienced lawyer-arbitrator, will share perspectives, successful techniques and helpful tips. These tips will enable attendees to: draft arbitration clauses that will make the process more efficient and cost-effective; recognize and adopt ‘best practices’ at the Demand, Preliminary and Hearing Stages; structure case management orders that will move the case along on a reasonable, but efficient and cost-effective, schedule; present cases in a manner that will focus the attention of, and not alienate, the panel; make and preserve your record; fashion closing arguments and briefs designed to persuade the panel.
Richard Levie, JAMS, Washington, DC
Ricardo Urbina, JAMS, Washington, DC
Thomas Phillips, Baker Botts L.L.P., Austin, TX
Julia Nowicki, Cook County Circuit Court, Chicago, IL
Evan Karnes II, Karnes Law Chtd., Chicago, IL