May 31, 2018

May 2018 - Arbitration Committee

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or Section of Dispute Resolution unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.

The Arbitration Committee is pleased to present the May 2018 issue of Just Resolutions. In this issue, ArbCom members discuss Novel Approaches to alternative dispute resolution based on their recent experience. These ADR processes are creative alternatives to traditional mediation or arbitration only. They include EVALOA (Evaluation Followed by Last Offer), Guided Choice, Binding Mediation and the Superstorm Sandy Protocols. The final article in this issue discusses what can happen when dispute resolution processes become “novel” unexpectedly.

Our Publications Sub-Committee Chair, Adam Martin, organized the entire issue, editing the articles and working diligently with each of the authors. Our thanks to Adam and to the individual authors for their good work in contributing to this issue.

We would also like to remind you of the 11th Annual Arbitration Training Institute which will be held May 17-18 in Miami. The Institute provides an unparalleled opportunity to learn from leading arbitrators and arbitration counsel, and to exchange experience with practitioners from all over the country. You can register now at the above link.

We hope you enjoy this May issue of Just Resolutions, and we look forward to seeing you at the Arbitration Training Institute

Ed Lozowicki and Louis Burke, Co-Chairs

Designing an ADR Program for Superstorm Sandy Caseload

By Judge Jerome Simandle, interviewed by Robert E. Bartkus

In response to Superstorm Sandy in October 2012, the District of New Jersey was confronted by hundreds of lawsuits concerning flood insurance policies issued pursuant to the National Flood Insurance Program (NFIP). After establishing a District-wide committee, inviting suggestions, and conducting public hearings in March 2014, the Court established a protocol for managing those cases. What exigencies led to this action? Read more

EVALOA: A better way to facilitate settlements in arbitration

By D. C. Toedt III

This article proposes a modified arbitration process that could be called EVALOA:  Evaluation followed by last-offer evaluation. When the parties agree to EVALOA:

After opening statements, the arbitrator cautiously offers neutrally-stated initial impressions of the strengths and weaknesses of the parties' cases, while promising to keep an open mind. In this regard, EVALOA shares features with evaluative mediation, early neutral evaluation (ENE), and the mini-trial. Read more

How You Can Use Guided Choice to Satisfy Clients Using Both Arbitration and Mediators

By Paul M. Lurie and Mark R. Becker

Over the past five years, the Guided Choice Dispute Resolution Interest Group and its supporters worldwide have concluded that businesspeople (1) want to use lawyers who know how to settle commercial disputes reasonably as soon as possible, minimizing business disruption and legal and expert expenses; and (2) prefer arbitration to litigation for cases that do not settle but only when arbitration is faster and saves time and expense. The Spring 2018 issue of the ABA Dispute Resolution Magazine is devoted to the Global Pound Conference and specifically mentions the work being done to use Guided Choice to implement the ideas coming from the Global Pound Conference. Read more

Binding Mediation

By Peter G. Merrill

When I first heard of “Binding Mediation,” I told myself that it was an oxymoron and couldn’t possibly work in settling disputes. My first introduction to binding mediation was when I attended an “Advanced Mediation” program at the Straus Institute for Dispute Resolution at the Pepperdine University School of Law in 2004. Prior to attending that program, I thought that I had a full comprehension of all forms of ADR, however, binding mediation was a new term for me, so I decided to look into binding mediation to see if there was any validity to it being an effective form of ADR. I found that I needed to have an open mind to really appreciate the value of binding mediation. Read more

ADR Humor or Horror Stories?

By Linda A. Michler and Daniel Yamshon

The earlier articles in this issue deal with novel approaches to ADR where the parties chose a novel solution, but what happens when an arbitration or mediation becomes “novel” unexpectedly? Who would think Secretary Rumsfeld’s observation about known unknowns and unknown unknowns would be applicable to dispute resolution? The late Professor William L. Prosser’s The Judicial Humorist was reputed to be one of the thinnest law books on record. At least that was what one of the authors was told during the first year of law school when a professor said, “Cut the wisecracks.” Read more

The Nominations Committee has announced the nominees for Section of Dispute Resolution Officer and Council Positions. The Nominees will be voted on by the Section Membership at the Annual Meeting of the Membership on August 4, 2018 at 2:00 pm CST in Chicago.

The members of the Nominating Committee are: Chair, Harrie Samaras; Philip S. Cottone, Vikram Kapoor; Ruth Glick; Richard Lord; Jillisa Brittan; R. Wayne Thorpe; and Serena Lee.

For the three at-large council terms:

  • F. Peter Philips (second three-year term)
  • Gina Miller (first three-year term)
  • Anna Rappaport (first three-year term)

Four executive committee positions:

  • Chair-elect: Joan Stearns Johnsen (one-year term)
  • Vice-chair: Myra C. Selby (one-year term)
  • Budget Officer: Charles L. Howard (one-year term)
  • Delegate to the ABA House of Delegates: Pamela C. Enslen (three-year term)

For information purposes: please note that the following officer positions will continue to be filled as follows:

  • Long Range Planning Officer – Ava Abramowitz
  • Educational Program Officer – Brian Pappas


ABA Connect and Sunsetting of Listserv 

The ABA will be sunsetting all of our list serves this year and we have begun to use ABA Connect as the means of communicating within Sections and Committees. All DR Section committees now have an ABA Connect Community.

If you have not received information yet, the staff will be contacting committee co-chairs with the link to their ABA Connect communities. The Connect communities are more user-friendly platforms for engaging in discussions, sharing documents, and accessing events.

Thanks to the hard work of the Women in Dispute Resolution Committee and many others, the Section plans to submit a proposed resolution on diversity to the ABA House of Delegates to consider and adopt. 

The Resolution mirrors a previous resolution adopted by the American Bar Association encouraging the use of diverse attorneys by encouraging the use of diverse neutrals. For more information, including a copy of the Resolution, contact Dispute Resolution Section Director Linda Warren Seely at

11th Annual Arbitration Training Institute

May 17-18, 2018
Akerman LLP
Miami, FL

Liz Kramer, author of the blog Arbitration Nation and expert on arbitration law, will address issues raised by Clifford (aka Stormy Daniels) v. Trump.

Arbitrability, jurisdiction, unconscionability, and emergency arbitration are all wrapped up in this case of national attention.

Presented by nationally recognized experts, this two-day training features sessions on every stage of the arbitral process examined from the vantage point of neutrals, advocates, administrators, and in-house counsel. Small group discussions allow participants to interact in depth with the faculty and each other. Substantive sessions address particular areas of arbitral practice.

Register Today!

Practice Development Institute
June 22-23
Chicago, IL

This two day program provides successful models for implementing strategies to build a profitable practice as both a mediator and as a peacemaking lawyer or other family professional.

Participants will learn new ways to help clients stay out of court and explore the personal and ethical dimensions of collaborative practice, solving unbundled legal services, and other cutting edge best practices.

The Bar Association of San Francisco presents

How to Improve Your Mediation Advocacy in Employment Litigation
June 7, 2018 
San Francisco, CA

SCOTUS Swings the Pendulum Back in Favor of Arbitration: Ensure That Your Next Arbitration Clause Is Effective and Enforceable
May 10, 2018

Evaluation: A Potential Tool in Your Mediation Strategy
May 24, 2018

The New Handshake: Online Dispute Resolution and the Future of Consumer Protection

May 29, 2018


Civic Fusion and Political Polarization: A Webinar with Susan Podziba, Principal, Podziba Policy Mediation
June 15, 2018
1:00 – 2:15 pm

Mediators can trigger and sustain civic fusion, a phenomenon in which people with passionately different political positions bond to address shared public conflicts without sacrificing their core values.  In this period of heightened polarization, how can mediators promote civic fusion to help re-unify the nation?

During this webinar, Susan Podziba will illustrate the complex work of building consensus on contentious issues based on her past projects, including her work with pro-life and pro-choice leaders; rebuilding democracy in a failed city; and creating consensus federal regulations to protect workers. She will then lead a discussion on how to apply civic fusion to the issues that divide the nation.

Mediation with the Focus on Communication

By D.G. Mawn

Leaders should lead. Right? Communication delays action. Right? We meet just to meet. Right? Mediation, with a focus on relational in balance with the transactional, can make both the mediator and the participants tinged with nervousness, uncertainty, resentment or fear.

Digging one shade deeper, the participants may feel unprepared to speak on the topics, may be uncomfortable with, or resentful of, some of the individuals at the mediation, or believe that the mediation is a required formality until they get their day in court. Read more

I Can Relate!

By Louise Phipps Senft

I have a Dream….

Inspired by the late Martin Luther King, Jr, whose life we remember this month on the 50th anniversary of his assassination, I have been thinking deeply about Relational Practices and how Dr. King’s message and life was a model of being relational.  Dr. King stirred us with his words, “Time is cluttered with the wreckage of communities, which have surrendered to hatred and violence. For the salvation of our nation and the salvation of mankind, we must follow another way. This does not mean that we abandon our righteous efforts…But we shall not, in the process, relinquish our privilege and obligation to love…This is the only way to create beloved communities.” Read more

2019 Spring Conference Planning begins 

The Section of Dispute Resolution’s 2019 Spring Conference planning process has already begun. The 2019 conference will be in Minneapolis, MN from April 10 – 13, 2019. Look for updates about the program planning and events process.

Working Group on Cybersecurity in International Arbitration Releases Draft Protocol 

The International Council for Commercial Arbitration (ICCA), the New York City Bar Association (NYC Bar), and the International Institute for Conflict Prevention and Resolution (CPR) Working Group on Cybersecurity in Arbitration has prepared a set of draft guidelines to provide practical guidance for counsel, arbitrators, and institutions, and optional protocols that can be adopted by parties to an arbitration. 

The working group welcomes feedback on the draft protocol and they will hold workshops in various parts of the world.

Feedback can be submitted until September 30, 2018, through the Working Group’s page.

The Arbitration Committee addresses arbitration in the public and private sectors, both domestic and international. It educates and informs Section members about institutional arbitration choices, model arbitration programs, ad hoc alternatives, community based and family law programs, case law and legislative developments. The committee provides information to the legal profession and beyond about the advantages of arbitration, addresses arbitrator standards and qualifications, and addresses contract/clause drafting issues including enforceability.