American Bar Association Section of Dispute Resolution 15th Annual Spring Conference

ABA Section of Dispute Resolution Panels Featuring JAMS Neutrals

Applying 10 Neuro-Principles to Successful Advocacy in ADR
Thursday, April 4, 2013 | 9:45 - 11:00 a.m.

Much attention has been given to understanding the impact of neurobiology on participants and neutrals in ADR proceedings. The purpose of this workshop will be to focus on the role of counsel: what should lawyers know about the way the brain works to maximize their impact on their clients, on judges, arbitrators, mediators and juries? This workshop is intended to help participants develop an awareness of their behaviors when acting as counsel in a negotiation, in the courtroom or in arbitration proceedings and how to approach such processes and help their clients to prepare for them at a cognitive, social and emotional level. It will present 10 key neuro-principles derived from the latest research in neuroscience and behavioral psychology.

François Bogacz, Neuroawareness Consulting Services, La Jolla, CA
Jeremy Lack, JAMS International, Geneva, Switzerland

Arbitration Ethics: Practical (and Ethical) Solutions to Real Problems
Thursday, April 4, 2013 | 9:45 - 11:00 a.m.

Ethics issues are complex and potentially dangerous. The arbitrator or advocate who is facing such an issue must reconcile conflicting interests and do so in a way that is ethical, fair and practical, all at the same time. This is a daunting task. This program will feature three experts who deal with ethical issues on a day to day basis for three major arbitration organizations, AAA, CPR and JAMS, who will discuss the ethical, and practical, guidelines they use to navigate successfully through these issues to solutions. An academic expert in the field will participate to weigh in on these issues, and the practical approaches used, as well.

Sheri Eisner, JAMS, Los Angeles, CA
Eric Tuchmann, American Arbitration Association, New York, NY
Helena Erickson, CPR, New York, NY

The Present and Future of ADR
Thursday, April 4, 2013 | 9:45 - 11:00 a.m.

This moderated panel will discuss developments and trends in domestic and international ADR. Leaders in dispute resolution including the American Arbitration Association and JAMS will discuss the topics and themes around what is happening today in dispute resolution. Topics will cover the growth of ADR, the challenges faced working with multicultural disputants, and how dispute resolvers can prepare themselves for the challenges ahead in developing an ADR practice whether you are an ADR advocate, dispute resolver, educator, or in house professional.

Deborah Masucci, Chartis, New York, NY
India Johnson, American Arbitration Association, New York, NY
Chris Poole, JAMS, Irvine, CA

Arbitration: We Are Your Panel and We Are Here to Help
Thursday, April 4, 2013 | 11:15 a.m. - 12:30 p.m.

Success in arbitration requires understanding the "rules of engagement" -- the strategy and tactics that advocates and arbitrators follow. This interactive panel of arbitrators, former state and federal trial and appellate judges and a highly experienced lawyer-arbitrator, will share perspectives, successful techniques and helpful tips. These tips will enable attendees to: draft arbitration clauses that will make the process more efficient and cost-effective; recognize and adopt ‘best practices’ at the Demand, Preliminary and Hearing Stages; structure case management orders that will move the case along on a reasonable, but efficient and cost-effective, schedule; present cases in a manner that will focus the attention of, and not alienate, the panel; make and preserve your record; fashion closing arguments and briefs designed to persuade the panel.

Richard Levie, JAMS, Washington, DC
Ricardo Urbina, JAMS, Washington, DC
Thomas Phillips, Baker Botts L.L.P., Austin, TX
Julia Nowicki, JAMS, Cook County Circuit Court, Chicago, IL
Evan Karnes II, Karnes Law Chtd., Chicago, IL

Lying, Misrepresenting, Puffing: Ethical and Professional Standards for Negotiators and Mediation Advocates
Thursday, April 4, 2013 | 11:15 a.m. - 12:30 p.m.

This program will discuss legal, ethical and professional standards for negotiators, advocates in mediation and mediators in the context of realistic hypothetical situations. Presenters will focus on best practices and distinguish among legal issues, ethical standards (the Model Rules of Professional Conduct) and professional obligations to which advocates and neutrals should aspire. Our audience will be involved in evaluating and resolving legal, ethical and professional issues embedded in the hypothetical scenarios. Interactive discussion will explore the ability to achieve good outcomes for the parties within these ethical and professional standards.

James Lawrence, Frost Brown Todd LLC, Cincinnati, OH
William Leahy, Mediator and Adjunct Professor at Case Western Reserve School of Law, Shaker Heights, OH
Michael Lewis, JAMS, Washington, DC

Is the Demand for Mediation Declining?
Thursday, April 4, 2013 | 11:15 a.m. - 12:30 p.m.

There is strong anecdotal evidence that the demand for complex, commercial mediation is declining. If the proposal is accepted, the presenters will undertake to collect data to assess whether the anecdotal evidence is supported by data and produce a paper and PowerPoint to communicate the findings. In addition, the presenters have several theories as to why this trend may be occurring which will be explored before the conference as well as solicit ideas from the audience for their theories. Note: complex, commercial or public policy matters involve multiple parties, disputes of high value, and/or complex public policy disputes involving multiple stakeholders or issues. These are cases where the parties choose their own mediators and are not mandated by courts.

John Bickerman, Bickerman Dispute Resolution, PLLC, Washington, DC
Kathy Bryan, CPR Institute, New York, NY
Christopher C. Carroll, Carroll McNulty & Kull LLC, Basking Ridge, NJ
Bill Hartgering, JAMS, Chicago, IL

Mediator Ethical Guidance Committee Update
Thursday, April 4, 2013 | 3:15 - 3:45 p.m.

Members of the Mediator Ethical Guidance Committee will present various scenarios that have been considered by the Committee, and the process by which the scenarios are evaluated and opinions issued. The program will discuss how the work of the Committee fits in within the other ways by which practitioners get ethics opinions (Model Standards, Provider Guidelines, statutes, etc. We will discuss the kinds of topics that come before the Committee in prior scenarios and more recent issues of interest in the mediation community, presented in a Q & A format.

Kimberly Taylor, JAMS, New York, NY

Getting to the Heart of the Matter: Distinguishing Mediation from Settlement Conferences
Friday, April 5, 2013 | 9:45 - 11:00 a.m.

In the early days of establishing mediation as a dispute resolution process, it was promoted as an alternative to the highly evaluative, "twist your arm" approach used by judges in settlement conferences. Mediation training focused on needs and interest-based communication and negotiation, based on a broad, problem-solving approach, rather than a narrow, legally focused approach. Many mediators watch with concern as more neutrals use a caucus-only, highly evaluative approach, yet name what their approach "mediation," rather than "settlement conference." This session will examine both mediation and settlement conference, as dispute resolution procedures, focusing on the history, methodology, benefits, challenges, required skills, and personal qualities applicable to each, with the intention of honoring, distinguishing, and preserving the essential and fundamental characteristics of each.

Daniel Bowling, US District Court for the Northern District of California, San Francisco, CA
David Hoffman, Boston Law Collaborative, Boston, MA
Marvin Johnson, JAMS, Greenbelt, MD
Homer LaRue, Howard University, School of Law, Washington, DC

Getting Arbitration Back on Track
Friday, April 5, 2013 | 11:15 a.m. - 12:15 p.m.

This program will look at arbitration from the various perspectives of plaintiffs prosecuting consumer claims, and corporations involved in contentious business-to-business disputes. How can the drafting of arbitration clauses respond to the different parties’ needs and requirements? And what creative devices can be used by arbitrators to facilitate a just balance between a streamlined cost-efficient process and the right to a full and fair hearing?

Linda DeBene, JAMS, San Francisco, CA
Harvey Kirsh, JAMS, Toronto, ON, Canada
Jay Edelson, Chicago, IL
Mercedes Bach, JAMS, Miami, FL

Difficult Issues for Arbitrators
Friday, April 5, 2013 | 3:00 - 4:15 p.m.

This interactive program will address a series of new hypothetical scenarios arising during the pre-hearing, hearing and post hearing phases of arbitrations. Some scenarios are not covered by arbitration law or rules. The problems will challenge, engage and inform the audience and prepare arbitrators for difficult situations. This program is a sequel to the 2012 Spring Conference program of the same title.

Richard Chernick, JAMS, Los Angeles, CA
William Fitzgerald, American Arbitration Association, Los Angeles, CA
Abigail Pessen, New York, NY

Maintaining Impartiality and Avoiding Conflicts of Interest: Same or Different?
Friday, April 5, 2013 | 3:00 - 4:15 p.m.

Most major mediation ethics codes treat Impartiality and Conflict of Interest as two separate concepts. Why is this? Doesn't the duty to be and remain impartial encompass the duty to avoid conflicts of interest? If so, why do our codes pretend otherwise? This panel will examine whether our codes suffer from a basic conceptual infirmity and whether, as a practical matter, mediators are paying sufficient attention to either requirement. We will discuss the ethical propriety of many practices, including: a) streamlining administrative concerns by declaring in a generic agreement to mediate that the mediator enjoys repeat business with insurance adjusters and attorneys and b) advertising subject matter expertise without disclosing whether one worked primarily for the plaintiff or defense side and without disclosing subject matter bias.

Ellen Waldman, Thomas Jefferson School of Law, San Diego, CA
Susan Nauss Exon, University of La Verne, Ontario, CA
Jeff Kichaven, Jeff Kichaven Mediation, Los Angeles, CA
Wayne Thorpe, JAMS, Atlanta, GA

International Committee Workshop
A Window into the Future: Adding Mediation to the Process Choices in Global Investment Disputes
Saturday, April 6, 2013 | 9:15 am - 5:30 pm

This year’s workshop will begin with a morning session that will include an overview of international ADR and investor-state disputes by Prof. Frank Fleerackers of the High Council of Justice, KU Brussels University – HUB, Brussels Bar Association (Belgium), followed by presentations of the International Committee’s projects its interests. The bulk of the day will be dedicated to the theme of investment treaty arbitration: why and how mediation could be integrated into such processes. These programs are chaired by JAMS International Managing Director, Lorraine Brennan and panellist Jeremy Lack.