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Some kids grow up hearing their dads talk about ERAs or PTAs. For us, it was ADR – and “a forum to fit the fuss,” “BATNA” and “high-low arbitration.” For one of our dad’s birthdays, we ordered him a monogrammed dress shirt with the letters “ADR” on the breast pocket – or so we thought.
It is an honor to be following Debbie Masucci as chair of the Dispute Resolution Section of the American Bar Association. She has taken the section to the next level and left us with the challenge of maintaining high-quality section activities and benefits, including publications.
Frank E. A. Sander is one such transformative figure, a man who for nearly 40 years has nurtured the field of dispute resolution that today is credited as being one of the most significant shifts in American law.
Taking advantage of his position, the ABA president set up a “Special Committee on the Resolution of Minor Disputes,” which was charged with finding or devising dispute resolution mechanisms capable of settling “minor disputes” effectively and efficiently, seeking to set up and evaluate pilot programs and then promoting adoption of the successful models throughout the country.
As a professor and associate dean of the Harvard Law School, Frank had credibility that has been instrumental, perhaps essential, in convincing the profession that alternatives to litigation – from mediation to negotiation to arbitration to hybrids such as the mini-trial – are an important part of the dispute resolution process.
Imagine an American Bar Association section publication being led by the founder of that section’s field. Imagine as well that this person is a distinguished scholar, a ruthlessly rigorous judge of quality, a warm and compassionate friend to whom people are drawn, a person who doggedly prepares for each telephone meeting and a positive individual dedicated to making a difference.
In this essay, we highlight three aspects of Frank’s mentorship that are especially noteworthy – his curiosity, candor and compassion – and show how they characterized his mentorship of the field at all levels.
We know little about Frank Sander as a professor of tax law or family law (except, of course, that he gained tenure at Harvard teaching those subjects), but because we have had the privilege of teaching a weeklong mediation workshop with him for almost three decades, we know much about how Frank has changed many people’s lives in only five days.
“Did you come all the way from liberal Austin to discuss toilet stall dimensions?” he barked, his eyes like lasers piercing holes through my head.
Those advocating joint session emphasize the importance of enhanced understanding and relationships, while those favoring a caucus model emphasize case management. Of course, many mediators use a combination of joint sessions and caucuses.
Model Standard V(A) provides, “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” The mediator’s duty is straightforward. Since neither of the exceptions --party consent or a requirement of law -- applies, the mediator must maintain confidentiality.
Frank was announced as an expert on the role of courts in American society, the initiator of multi-door courthouse experiments in Tulsa, Houston and Washington, and director of the Dispute Resolution Program at Harvard Law School.
In Mastick v. TD Ameritrade, Inc., B237475 (Cal. Ct. App. 2nd Dist., Oct. 9, 2012), the California Court of Appeal affirmed the denial of a motion to compel arbitration that was based on California law because the parties specifically chose California law in their agreement.
In October 2011, the Section Council appointed a Task Force to recommend whether the Section should adopt a policy on mediator credentialing.