Concurrent Session Series E –Friday, 10:00 am to 11:30 am
E1 Forgiveness: The Ultimate Tool of Conflict Resolution
Is there a role for forgiveness in the practice of law and dispute resolution? In this highly litigious culture,
can we even
consider the topic? If, in the context of a litigated case, your client wanted to forgive the other side, how
would you
respond? Would you ever suggest it? As a mediator, would you ever suggest that the parties consider
forgiveness, and
if so, how? These questions and more will be addressed by three highly-esteemed panelists including Dr.
Frederic
Luskin, Ph.D., leading expert and best-selling author on forgiveness, Robert W. Plath, Attorney and
Founder of the
Worldwide Forgiveness Alliance, and Dana Curtis, distinguished mediator and mediation teacher, and
program
moderator, Eileen Barker, mediator and teacher of mediation and forgiveness. The panelists will share
their expertise
about forgiveness and discuss the role that forgiveness can and should play in the legal field. Learn how
and why
forgiveness can be the key to truly resolving conflict and obtaining good results, as well as making life
easier and less
stressful for parties, attorneys and neutrals alike.
Eileen Barker, Barker Mediation, San Rafael, CA
Dana Curtis, Dana Curtis Mediation, Sausalito, CA
Frederic Luskin, Ph.D., Stanford University Forgiveness Project, Palo Alto, CA
Robert W. Plath, Worldwide Forgiveness Alliance, Mill Valley, CA
E2 Analyze This! and Do It Ethically
The Task Force on Improving Mediation Quality reports that parties and their attorneys believe analytical
assistance
from the mediator (e.g. evaluative or directive techniques) is one of four essentials to high quality
mediation. This
presentation will address whether mediators can provide such assistance while remaining true to the
Model Standards
of Conduct for Mediators. The panel will discuss: 1) how applicable law and ethical guidelines affect
various kinds of
analytical assistance mediators might provide; 2) research on “prospect theory” which may suggest that
mediators
could inadvertently promote unfair settlements; 3) the duty to refrain from giving legal advice; and 4) the
importance of
the convening stage in mediation, to plan appropriate techniques for a particular case.
Michael P. Carbone, ADR Services, Inc., San Francisco, CA
Ruth V. Glick, , Burlingame, CA
Marnie Huff, Margaret Huff Mediation , Nashville, TN
Roger Wolf, University of Maryland, Baltimore, MD
E3 Weinstein International Fellows - A Visitor's View of ADR in the U.S.
The Weinstein International Fellowship Program, inaugurated in 2008, provides opportunities for
outstanding ADR professionals from diverse countries to observe and study the practice of ADR in the U.S.
Their activities vary but include observing mediations at multiple JAMS centers, visiting court ADR
programs, and interviewing community mediators, all for the purpose of advancing dispute resolution in
their home countries. Some of the fellows will also be participating in LLM-ADR programs at American law
schools. Six of the first Weinstein fellows will attend the ABA conference as a component of their U.S.
visit. We hope that all six will be allowed to present their observations of ADR practice in the U.S. as
compared to available ADR processes in their home countries (will choose four if necessary). The program
will begin with a brief introduction of the Weinstein International Fellowship, primarily through an 8minute, professionally-prepared video that provides background information about the selected fellows
and their expectations at the beginning of their visit. The six fellows will speak about their experience after
several months observing mediations across the U.S. Because each of these fellows has extensive ADR
experience in their home country they will be able to offer unique insights and comparisons.
Badri Bhandari, Nepal
Ximena Bustamante, Ecuador
Tsisana Chamlikashvili, Russia
Jay Folberg, JAMS Univ. San Francisco School of Law, San Francisco, CA
Orouba Qarain, Jordan
Srdan Simac, High Commercial Court of the Republic of Croatia
E4 Innovating Justice: Lessons Learned from the Field in Dispute Resolution System
Design
Dispute resolution has often found its footing at the forefront of systems innovation, even as justice is
effectuated in
the shadow of the law. A critical question for dispute resolution systems designers is: Does innovation
promote justice
or merely produce administrative efficiency? This session will examine innovation and explore 'lessons
learned' in
dispute resolution system design and justice. The panelists conduct research and practice in diverse
settings:
community, court systems, and special education. We will analyze systems design in different contexts,
discuss their
relationship to various theories of justice, and examine data on system performance.
Timothy Hedeen, Kennesaw State University, Kennesaw, GA
Philip Moses, National Center on Dispute Resolution in Special Education (CADRE), Eugene, OR
Donna Shestowsky, University of California, Davis - School of Law, Davis, CA
E5 Stories Mediators Tell
Stories are powerful! Their capacity to engage listeners and to generate understanding is immense.
Veteran mediators in this session will talk about a case (or a fictionalized version of a case if
confidentiality requires) designed to make a point regarding mediation's potential to shift parties towards
more constructive engagement with one another. An opportunity for audience questions and interactions
will follow each story.
Russell Brunson, Peninsula Conflict Resolution Center, San Mateo, CA
Eric Galton, Lakeside Mediation, Austin, TX
Lela Love, Benjamin N. Cardozo School of Law, New York, NY
Margaret L. Shaw, JAMS, New York, NY
E6 When They Want to Walk Out: How to Get Beyond the Predictable Impasses of
Positional Bargaining
in the Settlement of Civil Litigation
The impasses are as numerous as they are predictable: The parties threaten to walk out, send the
mediator back to the
other party to get a "realistic number", or make low/high ball proposals in retaliation for the other party's
miniscule
move. We will present demonstrations of how mediators can deal with "insulting offers" and "bad faith
proposals" using
classical, problem solving methods, instead of the directive techniques that have become associated with
civil court
mediation. This session will be a practical skills seminar using presentations, demonstrations and
interactive
discussions with the audience.
Andy Little, Mediation, Inc., Chapel Hill, NC
E7 Yin & Yang, East & West in the Culture of Mediation: Singapore Lessons in
Seeing, Understanding and
Respecting Cultural Attitudes, Behaviors, Interests and Priorities to Facilitate
Resolution
Diverse, experienced mediation professionals from Singapore's Supreme Court, Vietnam's Ministry of
Justice, a
Canada University ADR professor's field work in Laos and a US mediator and international mediation
teacher's Vietnam
mediation teaching and training share practical real-life experiences and lessons on seeing, understanding
and
respecting key cultural aspects, attitudes, behaviors, interests and priorities in international and domestic
mediation in
those countries, and offer valuable practical cultural insights and tips for mediation users and
practitioners in any
environment. The session will be highly interactive and collaborative among the panelists and attendees
to maximize
the shared learning experience about key cultural elements in mediation, both elements that can impede
resolution and
elements that can facilitate resolution. The emphasis will be on practical experience, learning and value
for attendees.
Charles W Crumpton, Crumpton & Hansen, Honolulu, HI
Hoang Oanh Dang, Vietnam Ministry of Justice, International Cooperation Dept., Hanoi,
Vietnam
Cornie Ng, Singapore Supreme Court, Singapore
Stephanie Stobbe, University of Winnipeg, Winnipeg, Canada
E8 Hate Hurts: Recognizing Hate and Managing Its Effects
This program is developed around the “taxonomy of hate” developed by Robert J. Sternberg of Yale
University (“cool
hate” to “burning hate”). It looks at each of the 7 forms of hate included in that taxomony, associated
communication
patterns, and responses that help open new paths of healing, dialogue and resolution. Participants will
learn not only to
recognize patterns of hate, they will learn practical skills and also review resources that will help them in
both
responding to and preparing for conflicts where hate is or may be a factor. This program is applicable to
both neutrals
and advocates and to workplace and community disputes. We recognize that this is an unusual program
and a difficult
subject. We also think it is a much needed program that presents a framework that is inclusive, thought
provoking, and
very valuable for working through difficult issues. We have presented variations of this program to diverse
groups and
received a positive response. We would be willing to review the basic taxonomy and discuss our approach
with
members of the selection committee through the GoToMeeting Platform if you have any questions.
Dave Overfelt, Law Offices of S.J. Read, Columbia, MO
Sarah Read, Law Offices of S.J. Read, Columbia, MO
E9 Taming the E-Discovery Beast: How to Cost Effectively Deal with E-Discovery in
Employment ADR
Cases
Legal cost arising out of employment disputes can be daunting. As electronic communication dominates
the workplace, document retention issues and electronic discovery are cutting edge issues facing HR, IT
and legal professionals. The volume of information relating to these disputes, and the burden of
producing that information in government investigations and private litigation can be extremely
expensive. Legal clients will inevitably feel the pinch when compelled to produce in discovery massive
volumes of electronically stored information (ESI). This program will focus on the ethical obligations
involved with the discovery process to assure that a client's ESI is properly stored and maintained and
how the use of ADR allows parties to narrow considerably the amount of information that needs to be
produced, thereby saving substantial legal expense. The panel will work through a Case Study involving a
former employee's claims for wrongful discharge and discrimination. The program will contrast the costs
and efficiencies of the electronic discovery process in ADR proceedings with traditional litigation. The
audience will hear from the perspective of an attorney specializing in these issues; from a seasoned and
experienced General Counsel on experience managing the budget on these matters, and practical
considerations at the workplace; and from an ADR professional, each emphasizing the efficiencies that can
be brought to bear through the use of ADR.
John English, American Arbitration Association, San Diego, CA
Fran Griesing, Griesing Law LLC, Philadelphia, PA
Patricia McQuater, Solar Turbines (a Caterpillar Company), San Diego, CA
E10 Advocacy in International Commercial Arbitration: What You Don’t Know Will
Hurt You (And Your
Client)
This session provides a pragmatic “insider’s guide” to advocacy in international commercial arbitration as
well as information about the specialized source materials in this growing field of law. Until recently, the
field of international commercial arbitration was populated entirely by specialists who knew the sources
and strategies for researching relevant authorities. The situation has changed, with more general
practitioners entering this highly profitable market. Although newcomers may have expertise in litigation
or domestic arbitration, they do not realize how different international arbitration is from other forms of
dispute resolution. This will not only hurt these lawyers’ ability to research the relevant issues, it will also
affect the way they present research to the arbitrators. Too often this lack of specialized expertise affects
debate on the merits. This program cures the knowledge gap between experienced and inexperienced
international counsel by (1) teaching the special techniques associated with research in this field and (2)
identifying the special materials used by expert practitioners and arbitrators. The course is appropriate
not only for those who already have an international caseload, but for practitioners and arbitrators who
want to get into this growing field. This course is suitable for lawyers of all levels.
Darla W. Jackson, Oklahoma City University Law Library, Oklahoma City, OK
SI Strong, Center for Study of Dispute Resolution/University of Missouri School of Law,
Columbia, MO
William Karl Wilburn, W. K. Wilburn P.C., Bethesda, MD
E11 The Electronic Information Juggernaut: Taking Aim at ADR
Like an unstoppable juggernaut, electronically stored information (“ESI”) is beginning to intrude into ADR
including
discovery in US arbitrations, disclosures in international arbitration and in the mediation of e-discovery
disputes in
litigation. This presentation will first discuss the nature of ESI and its growing impact in both litigation
and ADR
proceedings. In litigation, is there a role for mediation in resolving e-discovery disputes, what should that
role be and
will mediation principles have to be adjusted to resolving such disputes? The panel will also discuss the
impact of ESI
on the limited discovery permitted in arbitration proceedings in the U.S. including such topics the need for
technical
knowledge by the arbitrator, focusing requests for e-discovery, and tools for managing ESI production and
presentation.
Finally, the panel will discuss the impact of ESI in connection with information disclosure in the
international arena
and how the international approach may provide lessons for managing ESI in the US legal system.
Mark Baker, Fulbright & Jaworski L.L.P., Houston, TX
Robert (Bob) Owen, Fulbright & Jaworski L.L.P. , New York , NY
Greg Wood, Fulbright & Jaworski L.L.P., Los Angeles, CA
E12 Back Home Again in Indiana, Connecticut and Nevada—Creating and
Implementing a Statewide
Foreclosure Mediation Program
The national mortgage crisis is causing judges, legislators and others to rethink how they handle the
explosion of
foreclosure cases, and increasingly they are turning to alternative dispute resolution as an effective and
efficient
solution. This session will review legislation and court rules in Indiana, Connecticut and Nevada relating to
foreclosure
mediation. The session will explain how mediators were trained to handle foreclosure cases. It will review
the creation
and implementation of statewide referral systems to provide mediation and legal help to distressed
homeowners. The
session will address the evaluation and monitoring of foreclosure mediation programs. The session will
end with a
discussion about the future of foreclosure mediation and how it can help homeowners and play a role in
bringing about
economic recovery.
Justin R Corbett, Indyspute Resolution & Dialogue Center, Indianapolis, IN
Monica A Fennell, Indiana Pro Bono Commission, Indianapolis, IN
Michael Joe, Legal Aid Center of Southern Nevada, Las Vegas, NV
Roberta Palmer, State of CT - Judicial Branch, Wethersfield, CT
Kevin Williams, State of CT - Judicial Branch, Hartford, CT
E13 Strategies for Making Peace in Our Schools
This interactive session will discuss how educators, ADR professionals, and students throughout the United
States are
implementing comprehensive CRE frameworks, peer mediation, curriculum infusion, adult modeling, and
restorative
justice as a means of developing peaceful educational communities. The session will compare and provide
a contrast to
the limitations of punitive discipline in schools by providing a broad overview of options in teaching the
art of peace
through positive communication, peer mediation, and classroom and curriculum infusion of conflict
resolution skills.
This session will showcase specific programs that empower youth, promote safe and positive school
environments as
well as proven their value in a wide variety of school settings.
Candice Gottlieb-Clark, Mediating Solutions, Los Angeles, CA
Gerald F Phillips, Los Angeles, CA
Deborah A Thomas, Private Practice, New Orleans, LA