Please set value(s) for component.

ABA News Archives

Advertisement

Search ABA News

  • Media

  • ABA News Sections

  • Key Issues

Entries filed under 'Section of Dispute Resolution'

    ABA publishes new book on crafting effective settlement agreements

    June 11, 2018 1:12 PM by glynnj

    CHICAGO, June 12, 2018 — Settlement agreements resolve cases far more frequently than trials do. Thus, attorneys must be prepared to craft agreements that optimally address the issues between the parties while complying with statutes, published decisions and rules of court. “Crafting Effective Settlement Agreements: A Guidebook for Attorneys and Mediators,” co-published by the American Bar Association Business Law and Dispute Resolution Sections, provides practical advice on drafting settlement terms, reviewing proposed boilerplate provisions, identifying win-win nonmonetary terms even in “money only” cases and ensuring both the durability and enforceability of settlements.

    “Crafting Effective Settlement Agreements,” authored by California appellate court attorney Brendon Ishikawa, provides comprehensive and practical guidance for attorneys regardless of whether the case has not yet been filed or has already resulted in a jury verdict.  Mediators too will find this a relevant and insightful resource for the process of facilitating a finalized settlement agreement.

    This desk reference helps attorneys and mediators:

    • Ensure an optimal drafting process and result for settlement
    • Analyze the practical implications of proposed settlement terms
    • Avoid potential legal and practical pitfalls that lurk unseen in the drafting process
    • Understand the myriad legal requirements for settlement agreements
    • Navigate complex interpersonal dynamics of people with opposing interests
    • Identify problematic settlement agreement terms and avoid malpractice
    • Explore ethical issues that can arise during the settlement process
    • Select options most likely to make a settlement agreement durable and enforceable


    About the author:
    Ishikawa is certified as a specialist in appellate law by the State Bar of California Board of Legal Specialization and has practiced appellate law for more than 20 years. He serves as lead appellate court attorney at the California Court of Appeal, Third District.

    Ishikawa is coauthor, with Dana Curtis, of “Appellate Mediation: A Guidebook for Attorneys and Mediators” (ABA 2016). He is also the author of “Appellate Mediation in California Civil Appellate Practice” (Cont. Ed. Bar 2017).

    Title:                “Crafting Effective Settlement Agreements: A Guidebook for Attorneys and Mediators

    Publisher:        Business Law Section and Dispute Resolution Section
    Pages:              480
    Product Code: 
    5070753
    ISBN:                978-1-64105-076-0
    Size:                
    6 x 9

    Binding:           Paperback
    Price:               $119.95
    Orders:            800-285-2221 or ShopABA.org

    Editor’s note: Author interviews and review copies of this book are available by emailing Katrina Krause at Katrina.Krause@americanbar.org. If you publish a review of this book, please send tear sheets or a copy for our files to Katrina Krause, ABA Book Publishing, 321 N. Clark St., Chicago, IL 60654.

    ABA Legal Fact Check seeks to help the media and public find dependable answers and explanations to legal questions and issues. Go to www.abalegalfactcheck.com and follow us on Twitter @ABAFactCheck.

    With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at www.americanbar.org/news and on Twitter @ABANews.

     

     

    Whether local or global, settling tough disputes require ownership and respect among parties

    April 10, 2018 11:26 AM by glynnj

    Participants engaged in mediation, whether in an international stage such as the Arab-Israeli conflict or more locally through U.S. bankruptcy courtrooms, must take ownership and develop trust with each other to have any chance of success.

    That was a message delivered on the opening day of the four-day 2018 Spring Conference of the ABA Section of Dispute Resolution, which closed in Washington, D.C. on April 7.

    New York Times columnist Thomas Friedman addresses the Spring Conference of the ABA Section of Dispute Resolution


    In two different sessions, Thomas Friedman, foreign affairs columnist for The New York Times, and lawyers involved in leading the city of Detroit through its bankruptcy proceedings, struck a common theme in their presentations: People having the most at stake in any negotiation must enter deliberations with good listening skills and respect for the other parties.

    “Mediation in situations like this can be quite controversial,” observed David Heiman, a Jones Day attorney who served as lead counsel for Detroit, recalling the 2013 municipal bankruptcy proceeding. He added that the various stakeholders must be listened to.

    Friedman suggested the same approach in Israeli-Palestinian negotiations. It doesn’t matter if presidential aide Jared Kushner of another American is in charge, it will take the “will” of parties in the Middle East “and not U.S. leadership” to resolve these decades-old differences.

    The conference, titled “Dispute Resolution in Complex Times,” addressed the current changing environment for alternative dispute resolution, as well as offering programs in six additional areas: arbitration; mediation, negotiation; advocacy; communication, psychology and neuroscience; and ethics. The Detroit panel was one of several case studies on the success of mediation in resolving local disputes.

    Heiman joined then emergency manager Kevyn Orr and retired federal judges Steven Rhodes, who presided over the case, and Gerald Rosen, who engineered the mediation that led to what is called the “Grand Bargain,” to provide a post-mortem in the program, “The Detroit Bankruptcy: The Power of Mediation.”

    Their success is widely touted nationally. As Rosen, a federal district court judge at the time who accepted the offer to mediate, observed, “The short, long story of this was … the city peaked in 2009 at a rate of unemployment of 17.9 percent. The city (unemployment) is better off now than the national average.”

    Rhodes, a retired federal bankruptcy judge, said he realized early on that “mediation was going to be an important component of the solution of Detroit’s problems.” He said he “toed the line between (mediation) being compulsory or it being voluntary,” and tried to ensure that the various stakeholders in the city – primarily pensioners, teachers and city workers — had an opportunity to speak in regular court sessions and be listened to.

    “The thoughts they brought to me were highly impactful,” he said. “I knew (mediation) was the key to the resolution. … Not just the case but the city’s future.”

    The city emerged from bankruptcy — the largest municipal case in U.S. history — in December 2014, or 17 months after filing Chapter 9. The “Grand Bargain” conceived and pushed by Rosen prohibited the sale of artwork from the city-owned Detroit Institute of Arts (DIA) to pay off the city’s massive debt and pension obligations. Under its terms, $816 million was donated by multiple foundations, DIA and the State of Michigan to offset pension and other cuts, which were accepted by city retirees.

    At the opening plenary session, Friedman deliver the Frank Sander Lecture, named for a Harvard law professor and pioneer in the field of alternative dispute resolution who died earlier this year. A three-time Pulitzer Prize winner, Friedman also received the D’Alemberte-Raven Award, the section’s highest honor, for his writings on foreign affairs and globalization that, in his words, “translates from English to English” so readers can better understand world events.

    In his remarks, Friedman emphasized the importance of the art of listening and showing respect for the other party, although the context was more from an international perch where the parties have a long history of antagonism.

    Friedman also discussed many of the ideas and concepts in his 2016 book “Thank You for Being Late: An Optimist's Guide to Thriving in the Age of Accelerations,” including sharing his thinking that in today’s environment those who show “resilience” and “propulsion” will ultimately be the winners in economic and other sectors.

     

    Kaine suggests Congress should consider formal mediation to settle some disputes

    April 9, 2018 1:49 PM by glynnj

    During his 17 years as a practicing lawyer, often in the civil rights arena, Tim Kaine often became involved in formal mediation. Today, the Virginia Democrat cites personal experience for why he touts the value of mediation in resolving policy and other matters.

    ABA President Hilarie Bass listens as Senator Tim Kaine (D-VA) addresses the Spring Conference of the ABA Section of Dispute Resolution


    When he became mayor of Richmond and later governor of Virginia, Kaine said he “remembered the power of mediation” and frequently would bring in trained mediators “to help resolve public policy disputes.” As governor, he had a deputy general counsel known as the best mediator in the state, he said.

    On April 6 at the 20th Annual Spring Conference of the ABA Section of Dispute Resolution, Kaine made a bold proposal: Federal legislators, when at an impasse, might benefit from the expertise of trained mediators. Sadly, he said, “we don’t do this in Congress” and congressional stalemates are widely known.

    Kaine delivered the plenary remarks on the second day of the four-day meeting in Washington, D.C. He shared satisfaction from successes of mediation that he experienced on the state level as well as frustration with how negotiations have played out on the federal level.

    And he believes he knows why dispute resolution tools do not usually work with fellow lawmakers.

    “In law, (dispute resolution) is a good thing,” the Democratic senator from Virginia explained. “In policy, there is often a political motive to keep a dispute going than resolve it. Keeping it going can be used to energize your base. Keeping it going can be used to raise funds.”

    He added that in his 24 years in politics he had “never seen such polarization” as today. Too many in politics take the approach, he lamented, of “let’s not get something done and then we’ll fight about who’s to blame for not getting something done.”

    Kaine is noted for reaching across the aisle and working well with Republicans. In his wide-ranging talk, he offered examples of where negotiations among lawmakers succeeded as well as failed and provided insights on why.

    He recounted in 2015, for example, how he and Sen. Bob Corker, the Republican chairman of the Senate Foreign Relations Committee from Tennessee, ironed out differences among senators and then the Obama White House to get congressional approval for the Iran nuclear deal, known as the P5+1 for the UN Security Council's five permanent members.

    As recounted by Kaine, Corker first drafted a bill that prohibited the president from finalizing a deal with Iran absent a vote of the Senate. He told Corker that Congress needed to play a role, but the bar the bill set was too high. Rather, he proposed the president be allowed to do the deal unless Congress votes no and that there be a time limit on the window for congressional action.

    Congress approved the legislation and Obama, despite an earlier threat of a veto, signed it. The negotiations “set the stage for how Congress would analyze the deal if there was a deal,” Kaine said in outlining the thrust of the final proposal.

    The failure: Congress inability to negotiate a deal for the Deferred Action for Childhood Arrivals program — also called DACA – involving legal protections for roughly 800,000 people who entered the country illegally when they were children. At one point this year, Senate negotiators thought they had a deal with the White House, until President Donald Trump spoke against the deal.

    “Why did that one fail,” Kaine rhetorically asked about DACA. He explained that when Obama issued a veto warning on the Iran legislation, that attracted more Republican votes. But when Trump came out against the DACA deal, “that stopped us in our tracks. We had eight (Republicans) but couldn’t get any more.”

    Kaine observed that “listening is the lost art in life right now” and that he believes that “people don’t feel like anybody listens to them.”

    “You in this profession,” he said. “You really care about this. You are trained listeners. You are trained to find commonalities that people can’t see.”

    Besides his remarks, Kaine, who ran in 2016 as the Democratic nominee for vice president, answered questions from ABA President Hilarie Bass. The two discussed, among other topics, negative statements made by Trump and others about judges and the courts.

    Kaine said judges, based on the law, have so far acquitted themselves well through various rulings on Trump administration proposals. He suggested “this chapter in our history is going to have a positive” outcome and show that “institutions are stronger than individuals.”

     

    NYT columnist Thomas Friedman, U.S. Sen. Tim Kaine highlight ABA dispute resolution meeting

    March 21, 2018 6:45 AM by glynnj

    WASHINGTON, D.C., March 21, 2018 — The American Bar Association Section of Dispute Resolution will convene its 20th Annual Spring Conference from April 4-7 in Washington with more than 80 different programs and two plenary addresses by New York Times columnist Thomas Friedman and U.S. Sen. Tim Kaine, D-Va.

    What:              
    20th
    Annual Spring Conference
    Sponsored by ABA Section of Dispute Resolution

    When:             
    April 4 - 7

    Where:            
    Washington Hilton
    1919 Connecticut Ave. NW
    Washington, D.C. 20009

    The conference, titled “Dispute Resolution in Complex Times,” will address the current changing environment for alternative dispute resolution, as well as offer programs in six additional areas: arbitration; mediation, negotiation; advocacy; communication, psychology and neuroscience; and ethics. There will also be several case studies of the effectiveness of mediation, covering local efforts in Detroit, Birmingham, Ala., and Ohio.

    Friedman will deliver the Frank Sander Lecture, named for a Harvard law professor and pioneer in the field of alternative dispute resolution who died earlier this year. Friedman, a three-time Pulitzer Prize winner, will speak at 8:30 a.m. Thursday, April 5. He will also receive the D’Alemberte-Raven Award, the section’s highest honor. Friedman is being honored for writings on foreign affairs and globalization that have generated reflection and discussion in an increasingly fast-paced interdependent world. The award is named after Robert D. Raven and Talbot D’Alemberte, both former ABA presidents and section chairs.

    Kaine, a former civil rights lawyer and Democratic vice-presidential candidate in 2016, will speak at 9:30 a.m. Friday, April 6. Elected to the Senate in 2012 after serving as governor of Virginia, Kaine is regarded as a can-do optimist skilled in bringing people together across lines of party, race or region. In the Senate, he serves on the Armed Services; Budget; Foreign Relations; and Health, Education, Labor, and Pensions Committees.

    Other program highlights include:

    “The Detroit Bankruptcy: The Power of Mediation” Detroit has emerged from the largest municipal bankruptcy in U.S. history as a model of urban renewal and an example of the power of mediation. The city’s bankruptcy proceedings may also be a model for municipalities in current difficulty. Steve Rhodes and Jerry Rosen, both retired judges known for their roles in presiding over and mediating Detroit’s 2013 bankruptcy, will explore key issues in that case together with David Heiman, the city’s lead counsel, with a focus on how mediation played a key role in developments. Kevyn D. Orr, an attorney for Jones Day who served as Detroit’s emergency manager during that time, will moderate.

    Thursday, 10 - 11 a.m., Columbia 3 (Terrace Level)

    “Is Third-Party Funding the Elephant in the Room?” Whether for the benefit of plaintiffs, corporate defendants or contingency fee attorneys, third-party funding is on the rise and not without controversy. Traditionally, contingency fee attorneys have advanced litigation expenses, including their fees, but third-parties have added a new element, such as when entrepreneur Peter Thiel bankrolled Hulk Hogan's lawsuit against now closed media site Gawker. What effects do these practices have on decisions to settle, including mediation negotiations and agreements? Presenters will be Charles Agee of Westfleet Advisors, Jeanne M. Christensen of Wigdor LLP, and Deborah Masucci of Masucci Dispute Management and Resolution Services. Alida Camp will moderate.

    Thursday, 10 – 11 a.m., Cardozo (Terrace Level)

    “Re-framing Hate: Practice-Based Ideas for Dispute Resolution's Role Regarding Hate Incidents” — Nonprofits report a surge in hate incidents across the country and dispute resolution practitioners have the skill set and the opportunity to assist communities in how to respond to hate as well as develop planning in advance of a potential incident. Grounded by the real-world experience of panelists, the panel will illustrate how dispute resolution practitioners can support communities in the face of hate. Presenters will be Frank Dukes of the Institute for Environmental Negotiation at the University of Virginia in Charlottesville, the site of the white supremacy rally in August 2017; law professor William Froehlich and former U.S. Department of Justice official Grande Lum, now both with the Divided Community Project at The Ohio State University Moritz College of Law in Columbus, Ohio; and Becky L. Monroe of the Lawyers' Committee for Civil Rights Under Law.

    Thursday, 4:45 – 5:45 p.m., Columbia 8 (Terrace Level)

    Two additional awards will be presented at the conference:

    ·        John W. Cooley Lawyer as Problem Solver Award, which honors those that use their problem-solving skills to forge creative solutions. The 2018 winner is the Divided Community Project at OSU’s Moritz College of Law, which is headed by Lum and Froehlich. The project grew out of an April 2015 meeting of leaders and mediators from throughout the U.S. with experience dealing with civil unrest in communities. The OSU project helps communities transform divisive issues into broad-based, forward-thinking community action.

    ·        2018 Award for Outstanding Scholarly Work will be presented Saturday to Professor Charles Craver, the Freda H. Alverson Professor of Law at George Washington University Law School in Washington, D.C. Craver teaches labor law, international negotiating, legal negotiating, alternative dispute resolution (ADR), and employment discrimination law. A prolific and influential writer, Craver has written seven alternative dispute resolution texts, including “Effective Legal Negotiation and Settlement,” first published in 1986 and now in its 8th edition, in addition to 30 ADR journal articles and 35 online ADR articles during his career.

    The Section of Dispute Resolution is the world’s largest association of dispute resolution professionals, with 11,000 members. Its spring 2018 conference agenda can be found online.

    Media wanting to cover any program of this event should register by contacting Bill Choyke
    at 202-662-1864 or at bill.choyke@americanbar.org.

    Go to www.abalegalfactcheck.com for the ABA’s new feature that cites case and statutory law and other legal precedents to distinguish legal fact from fiction.

    With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at www.ambar.org/news and on Twitter @ABANews

     

    British Columbia ODR system handles 14,000 cases in first 7 months

    February 4, 2018 6:44 AM by glynnj

    Justice just got quicker and easier for people with small-claims cases in British Columbia.

    The Canadian province launched the nation’s first online tribunal in 2016. At first, the online dispute resolution system handled only condominium disputes. In June 2017, the system – called the Civil Resolution Tribunal – took jurisdiction over nearly all small-claims cases worth $5,000 or less.

    Panelists (from left: Darin Thompson, Shannon Salter, Colin Rule) discuss Canada's first online dispute resolution system during the ABA Midyear Meeting in Vancouver


    The early results are encouraging, according to the developers and operators, who spoke at a panel discussion Saturday at the ABA Midyear Meeting in Vancouver. So far, the system has handled nearly 14,000 small-claims cases. Roughly 85 percent of the 700 cases resolved to date were settled. Only 12 went to decision at the tribunal.

    More important, the online tribunal has made it much simpler for ordinary citizens to access the justice system with small disputes. Lawyers are generally prohibited from participating. Users fill out simple, easy-to-follow, step-by-step questionnaires online.

    “Citizens are using technology in every area of their lives,” said Colin Rule, vice president of online dispute resolution at Tyler Technologies. “This is how you rebalance your 401k. This is how you sign your kid up for summer camp. And when they go to the courts and someone says your hearing is going to be in 120 days and you need to file this on paper, people go, ‘Is this 1983?’ This is just not the way society works.”

    Ordinary people in Canada and the United States are demanding that their courthouses change, said Darin Thompson, legal counsel at the British Columbia Ministry of Justice. “People aren’t marching on Ottawa or Washington,” Thompson said. “They’re marching away from the courthouses. It’s up to us to figure out how we can change that.”

    One sign that the British Columbia ODR system is working: About 45 percent of participants are using the tribunal’s online tools outside of traditional court hours – a tremendous convenience for people who can’t get away from work to go to court.

    Another sign: Government money and personnel that used to be devoted to small-claims cases – including judges, sheriffs, clerks and others – are being redirected to reduce the backlog of criminal and family law cases.

    Shannon Salter, who chairs the B.C. Civil Resolution Tribunal said the greatest success is expanding public access to justice. “Being online is not the end goal,” she said. “The end goal is to take the justice system and go to where people are.”

    Thompson demonstrated how the system works by leading the audience through the online forms for a fictional claimant named Sarah who bought a $2,500 refrigerator that was never delivered. He explained how the early steps are automated, but the later steps involve human mediators who try – usually successfully – to resolve disputes online, by phone and by email.

    Salter said she knows some lawyers fear ODR will take away their work, especially if it can be expanded to more complex and lucrative disputes.

    “My response to that, as a lawyer, is society doesn’t owe you a living,” Salter said. “If you make your living because justice processes haven’t changed since William the Conqueror and they’re still byzantine and they’re still complex and you happen to know how to navigate them, that is not an interest that society should protect. So if by simplifying processes we take away your work, you need to change the nature of your work.”

    The event was co-sponsored by the ABA Judicial Division, the ABA Section of Dispute Resolution and the National Conference of Bar Presidents.

    ABA sponsors seventh annual national Mediation Week celebration, starting Oct. 16

    October 3, 2017 3:33 PM by John Glynn

    WASHINGTON, Oct. 4, 2017 — The American Bar Association’s annual Mediation Week celebration begins Oct. 16, and includes more than three dozen activities across the country.  Events this year stretch from Massachusetts to Washington state, in addition to one scheduled for Toronto.

    Read More »

    Implicit bias, technology solutions highlight ABA alternative dispute resolution meeting

    April 7, 2017 1:37 PM by John Glynn

    WASHINGTON, April 10, 2017 — The American Bar Association Section of Dispute Resolution will convene its 19th Annual Spring Conference from April 19-22 in San Francisco with more than 100 different programs covering a host of topics, including the importance of recognizing implicit bias and how technology is shaping the alternative dispute resolution field.

    Read More »

    ABA sponsors sixth annual national Mediation Week celebration, starting Oct. 16

    October 6, 2016 7:56 AM by John Glynn

    WASHINGTON, Oct. 6, 2016 — The American Bar Association’s annual Mediation Week celebration begins Oct. 16, and includes more than three dozen activities across the country, and this year features an event in Spain.

    Read More »

    Police misconduct program, UN mediator kick off ABA dispute resolution conference

    March 23, 2016 8:10 AM by Irma Romero

    WASHINGTON, March 23, 2016 — The American Bar Association Section of Dispute Resolution will convene its 18th Annual Spring Conference April 6-9 in New York with more than 100 different programs covering alternative dispute resolution issues related to the courts, legal education and a variety of other areas, in addition to presentation of the section’s highest honors.

    Read More »

    New York lawyer named ABA representative to the United Nations

    March 18, 2016 3:32 PM by John Glynn

    CHICAGO, March 21, 2016 – New York lawyer Mark H. Alcott of New Rochelle, N.Y., has been appointed as the American Bar Association representative to the United Nations, where the ABA is a designated Consultant and Observer.

    Read More »