Dispute Resolution The Newsletter for Conflict Resolution Neutals and Attorneys Published by the Dispute Resolution Section of the Tennessee Bar Association, November 2001 CONTENTS THE ART OF ARBITRATION CLE COURSE OTHER EDUCATIONAL OPPORTUNITIES COLLABORATIVE LAW STATUTE ENACTED IN TEXAS OLD-FASHIONED BARGAINING SELECTED INTERNET RESOURCES WHAT MAKES AN INCOMPETENT ARBITRATOR/ MEDIATOR? NEWS FROM THE ABA’S DISPUTE RESOLUTION SECTION U. S. AIR FORCE: HOW TO ENGAGE IN ADR NASHVILLE CONFLICT RESOLUTION CENTER IN OPERATION NOTE: Unless otherwise noted, this Newsletter may be freely redistributed. We request an acknowledgement that "This Newsletter [Article] was previously published in the Dispute Resolution Section's [Month and Year of Publication] Newsletter. Reprinted with permission of the Tennessee Bar Association." Contributions of articles, comments, and suggestions are solicited. THE ART OF ARBITRATION Information on the ADR Section’s next program December 14, 2001 at the Tennessee Bar Center Call Sherri at the TBA office (615) 383-7421 for more information, or register on TBALink at http://www.tba.org/onsiteinfo/artofarbitration2001.html . Note that those who are not members of the ADR Section or of the Tennessee Bar Association are cordially invited to attend and participate. Arbitration is fast becoming not an alternative to litigation, but as a required and recommended way to reach final resolution of disputes. This seminar is for lawyers who are new to this field, or who are experienced, and will cover all aspects of arbitration, from considerations in drafting arbitration clauses, choosing an arbitrator, what rules should apply, preparing for a hearing and the law of appeals. The principal speaker will be Howard Venzie, a Philadelphia lawyer and one of the nations most highly respected arbitrators.
OTHER EDUCATIONAL OPPORTUNITIES With a Note on Class Actions Consistently rated the top school for ADR training, the University of Missouri Law School has J. D. and LL. M. programs, publishes a respected journal, and offers training seminars. They have an informative website at http://www.law.missouri.edu/csdr. I recommend a visit. In addition to learning about their programs and seminars, there is some useful information. For example, in the Fall 2001 newsletter, Issues and Interests, Prof. Jean Sternlight summarizes her article, "As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?" from 42 William and Mary Law Review 1 (2000). She notes that while the predominant result so far is that courts have permitted companies to use arbitration as a shield against class actions, the decisions fail to examine whether class actions can be pursued in the confines of an arbitration. Take a look at Stephen J. Ware’s recent article in the Summer 2001 Dispute Resolution Magazine, "The Alabama Story," in which he recounts the partisan politics that developed in the state known as "tort hell" over the use of arbitration by companies, particularly automobile dealers, to shield themselves from consumer complaints. COLLABORATIVE LAW STATUTE ENACTED IN TEXAS The Texas Family Code has been amended to provide that the parties and their attorneys may agree to use collaborative law procedures in divorce and parent-child proceedings. Everyone agrees in writing to use their best efforts to settle everything, with the court required only to approve the settlement agreement, make the pronouncements, and sign the orders. Except for asking for the court’s approval, the attorneys may not serve as litigation counsel. There are a number of other provisions that will be included in the Texas Family Code, §§ 6.603 (d) (1) and 105.30072 (d) (1). Acts of 77th Legislature (2001), HB 1363, Chapter 1022. According to an article in the October 2001 issue of Alternative Resolutions, the newsletter of the Texas Bar’s ADR Section, "Collaborative Law: What it Means to Texas Mediators," by Judy Kurth Dougherty and Josefina Mu_iz Rendón, Texas mediators have reacted negatively, feeling that this type of practice would eliminate the need for mediators. It certainly could be seen as a way for attorney-mediators, or attorneys who can work constructively for the best interests of all parties, to cut out non-attorney mediators. I would suspect that a lot of Tennessee attorneys in domestic practice would say they’ve been practicing collaborative law as much as possible over the years. In the Fall 1999 Issues and Interests on the Missouri website referred to above, there is a report of Frank Sander’s lecture on the Future of ADR, and a reference to the full text in the Spring 2000 issue of the Journal of Dispute Resolution. Sander has been the Director of the program on negotiation at Harvard Law School. His lecture addressed the obstacles to the institutionalization of ADR and its accomplishments. It seems to me that with developments like "collaborative law," we ought to be spending some time in thinking about where we are and what makes sense for Tennessee in the future. OLD-FASHIONED BARGAINING As mediators we discuss interest-based or integrative negotiations a good bit. Mediation is a great tool for enlarging the pie – adding needs and interests that can be met – to enable each party to make concessions and move toward agreement. But distributive bargaining is involved in most mediations, because they involve some form of dispute about money or another resource. Usually, one party agrees that some money is owed to the other party, but there is disagreement about how much is owed. Often there are issues about the money or resources available to satisfy the claimant. Sometimes there are multiple parties that would be expected to contribute to any pot for the claimant. In the legal context, if the parties can agree on a range of probable outcome, they are likely to settle. In other negotiations, such as contract negotiations, the parties need to find a "zone of agreement" on price and other terms. There are "rules and tools" for bargaining. Check out just about any comprehensive book about negotiations and you’ll find them listed and illustrated. To illustrate, George Fuller’s The Negotiator’s Handbook (Prentice Hall, 1991) covers Pre-Negotiation Planning, Establishing Negotiation Objectives, Analyzing Your Opponent’s Position, Negotiation Fundamentals (including strategies and techniques – offensive and defensive), and Post-Negotiation Strategy. He has a nice step-by-step checklist and keys for recognizing and dealing with various strategies and tactics. There are tons of other books, e.g., Schoenfield and Schoenfield’s The McGraw-Hill 36-Hour Negotiating Course (1991), and Karrass’s books http://www.karrass.com. My experience is that the parties and attorneys who understand this process and are able to put it into practice in a particular case are the ones who do well in terms of results. Typically, the folks who come in with a credible demand or offer and a reasonable bottom line do best. The credibility of a first offer is important, because insult offers can torpedo negotiations. Those who are unprepared or have extreme positions are least likely to get any, or a reasonable, settlement. At the same time, I have seen learned practitioners of the negotiation arts forget the basic principle that "What goes around, comes around." As a negotiator, you should make sure that no one on the other side leaves the negotiation table without feeling like a winner. One source I recommend looking at is Professor Zanglein’s site, http://www2.tltc.ttu.edu/zanglein. She reproduces several negotiation preparation forms, including Craver’s, Goodpasture’s, Trachte-Huber’s, and Fisher/Ury’s. I like Craver’s because it presumes the calculation of Best and Worst Alternatives to a Negotiated Agreement (BATNA, WATNA), plus consideration of the other side’s target and resistance points, strengths and weaknesses, and other factors. Together with Cooley’s Fair Settlement Value calculation (or some variant), negotiators and mediators can help the parties realistically assess the values of a proposed settlement. SELECTED INTERNET RESOURCES NOTE: The following is only an illustrative list. Many of these sites have links to other sites that are very helpful. I regularly use http://www.google.com to search for new sites and to find references to particularized inquiries. American Arbitration Association – http://www.adr.org American Bar Association – http://www.abanet.org/dispute/home State bar associations – e.g., http://www.texasadr.org, http://www.tba.org Local bar associations – e.g., http://www.nashbar.org Association of Attorney Mediators – http://www.attorney-mediators.org ADR Resources. Includes links – http://www.adrr.com Association for Conflict Resolution – http://www.acresolution.org (formerly Society of Professionals in Dispute Resolution; Academy of Family Mediators; and Conflict Resolution Ass’n. – now unified but with field of interest sections.) Conflict Research Institute, University of Colorado – http://www.crinfo.org Mediation Information Resource Center – http://www.mediate.com State Organizations, e. g.: Florida Conflict Resolution Consortium – http://consensus.fsu.edu Georgia Commission on Dispute Resolution – http://www2.state.ga.us/Courts/adr/adrhome.htm Virginia – http://www.courts.state.va.us/drs/main.htm Alaska has a site with a good "Guide to Selecting a Mediator" piece – http://www.ajc.state.ak.us/Reports/mediatorframe.htm Conflict Resolution Consortium – emphasizing transformative mediation – http://www.colorado.edu/conflict Ohio State Journal of Dispute Resolution – http://www.law.ohio-state.edu/ADR Nova Southeastern University School of Social and Systemic Studies Dispute Resolution – http://www.nova.edu/ssss/DR Pepperdine – http://www.pepperdine.edu Texas Tech course/links – http://www2.tltc.ttu.edu/zanglein Stanford – http://www.stanford.edu/group/sccn Tennessee Legislature – http://www.legislature.state.tn.us Judiciary – http://www.tsc.state.tn.us Uniform laws – http://www.law.cornell.edu, and go to Legal Information Institute. Family Law Advisor – http://www.divorcenet.com Divorce Online – http://www.divorce-online.com Various law review articles, e. g., Family Mediation Screening for Domestic Abuse by Alison E. Gerencser, FSU Federal Uses of ADR, e. g.: Air Force Alternative Dispute Resolution – http://www.adr.af.mil Federal Mediation and Conciliation Service – http://www.fmcs.gov Commercial Sites often have generally available information, e. g.: CPR Institute for Dispute Resolution – http://www.cpradr.org JAMS-ENDISPUTE – http://www.jamsadr.com ADR World – http://www.adrworld.com Employment Law Mediation Service – http://www.emplawmed.com Convenor Dispute Resolution Consulting – http://www.convenor.com First Mediation Corporation – http://www.firstmediation.com Community Mediation – National Association for Community Mediation and Links to programs of various communities – http://www.nafcm.org Restorative Justice – http://www.restorativejustice.org What sites have you found to be particularly useful and informative? Let me know so I can report them to the others. kjackson@nealharwell.com WHAT MAKES AN INCOMPETENT ARBITRATOR/ MEDIATOR? There is an interesting column written by Suzanne Mann Duvall for the Texas Bar’s Alternative Resolutions newsletter, "Ethical Puzzler," that, in the October 2001 issue, raises this issue. Several practitioners provide comments. Without relaying their comments, I solicit your thoughts for a colloquium on the question. The following are some thoughts composed from several sources to use as a takeoff. Appendix A to our Rule 31 provides in § 2 (a) (2) that a neutral shall maintain professional competence in dispute resolution skills including but not limited to: (A) staying informed of and abiding by all statutes, rules, and administrative orders relevant to the practice of Rule 31 ADR Proceedings; (B) continuing to meet the requirements of these rules; and (C) regularly engaging in educational activities promoting professional growth. Appendix A, § 2 (a) (3) provides that "A Neutral shall decline appointment, withdraw, or request technical assistance when the Neutral decides that a case is beyond the Neutral’s competence." Section 14 addresses the neutral’s professional responsibility to provide competent pro bono services. Since any neutral, Rule 31 or not, should engage in ethical practices akin to those of Appendix A, we can conclude that any failure to comply with ethical standards would be incompetent. Another way to look at this is Golann’s split of the question into two parts: diagnostic competency (e.g., assessing mental capacity, intimidation of one of the parties) and skill competency (e.g., expertise in intellectual property law). Let’s also add competency as a neutral (mediator, arbitrator, etc.), because lack of expertise in a particular subject matter does not, of itself, disqualify a neutral from providing competent services. How about cultural incompetency? Attorney-Neutrals have to look at DR 6-101 (A) (1): "A lawyer shall not handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating a lawyer who is competent to handle it. Maybe all it takes is for the parties to be satisfied with the neutral’s qualifications, provided they have sufficient and correct information about those qualifications. Another test might be whether the neutral’s qualifications are likely to satisfy the reasonable expectations of the parties. Must the neutrals know that they are incompetent in order to be considered as such? After all, for the most part it is up to the neutral to make the ethical decision on his or her own competency. Send your comments and ideas on this subject to me at kjackson@nealharwell.com, or write to me at Ken Jackson, Neal & Harwell PLC, 150 Fourth Avenue, North, Nashville, TN 37219. NEWS FROM THE ABA’S DISPUTE RESOLUTION SECTION Family Mediation Standards The Model Standards of Practice for Family and Divorce Mediation are now complete and available to guide family and divorce mediators. These Standards are the product of a multi-year collaborative effort to define the role of family mediation in the dispute resolution system. The Model Standards unify pre-existing codes and guidelines promulgated by a variety of organizations, courts, and legislatures in the past 20 years and address particular issues and problems in family mediation practice. The Standards have three primary functions: to guide the conduct of family mediators; to inform the mediation participants about the process; and to promote public confidence in mediation as a process for resolving family disputes For more information, see http://www.afccnet.org/docs/resources.htm and http://www.afccnet.org/pdfs/modelstandards.pdf Uniform Mediation Act The National Conference of Commissioners on Uniform State Laws (NCCUSL) has approved the draft Uniform Mediation Act. The Act will be considered by the ABA at its February 2002 mid-year meeting. The key provisions of the Act provide an evidentiary privilege to protect the confidentiality of mediation communications. The Act is crafted as a minimum level of protection in those states that have none and is not meant to replace stronger confidentiality protections already on the books. For more information about the Uniform Mediation Act, visit http://www.pon.harvard.edu/guests/uma/ The Guide to Dispute Resolution Processes The Dispute Resolution Section of the ABA has created a "Guide to Dispute Resolution Processes," available to download in PDF form from the Section's web site at http://www.abanet.org/dispute. Designed for consumers and users of dispute resolution services, the Guide explains what dispute resolution is, why it is used, and defines ten different dispute resolution processes. This Guide is available free of charge. The Section of Dispute Resolution encourages individuals and groups to make copies of the Guide as long as they do not charge for the copies. U. S. AIR FORCE: HOW TO ENGAGE IN ADR For those of you who are involved in government contracting, the Air Force has an interesting site at http://www.adr.af.mil/acquisition/engage.html. NASHVILLE CONFLICT RESOLUTION CENTER IN OPERATION The Nashville Conflict Resolution Center is up and running with De’An Bass, Executive Director, and volunteer mediators helping to resolve a high percentage of General Sessions cases in its first month of operation. I know there are a lot more Rule 31 mediators in Nashville and surrounds who could use some practical experience, and even experienced mediators can benefit from more practice – I know I have. So consider volunteering for the supplemental training and participation. You can reach De’An at the Nashville Bar Association, 615-242-9272 to learn more about this program. We’re playing catch-up, I’m sure, with the Knoxville and other programs. I would like to include information from such programs in this newsletter. Let me hear from you. kjackson@nealharwell.com |
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