Series B: 11:30 AM – 12:45 PM

Room: Capitol A

B1 Promoting a National Dialogue on Resolving Consumer and Employment Disputes

Few issues have sparked more intense debate than those surrounding the enforceability of predispute ("mandatory") arbitration agreements in nonnegotiated contracts involving consumers and employees. The Supreme Court has published several new decisions that appear to dramatically limit judicial oversight of such agreements under state law, and Congress has enacted various laws limiting the use of arbitration provisions in some settings and authorizing the Consumer Financial Protection Bureau and the Securities & Exchange Commission to consider whether to outlaw arbitration in various consumer contract settings. In the wake of these developments, a broad-based group of scholars, advocates for various positions, agency officials and representatives of provider organizations are coming together with the intent of engaging in a facilitated dialogue--a national roundtable--to explore what we know and what we still need to know about the operation of public and private processes for resolution of consumer and employment cases, and to seek mutually acceptable approaches to these issues. The first meeting of the roundtable is designed to focus on consumer transactions within the purview of the CFPB and the SEC. Members of the planning group for the National Roundtable will describe the initiative and summarize its progress,

Lawrence Mills, Mills, Meyers, Swartling, Seattle, WA
Tom Stipanowich, Pepperdine School of Law / Straus Institute for Dispute Resolution, Malibu, CA
Nancy Welsh, Penn State University, State College, PA 

Room: Regency C

B2 Deal or No Deal: Negotiating with the Brain

Why is making a decision so difficult? What both supports and distorts our decision making efforts? What keeps us from coming to an agreement? Facilitating quality decision making can be challenging and stimulating. This interactive workshop will explore the configuration of the mind, its relationship to the types of decisions we make (including reactive, supportive and distorted, ethical and value based) and the effect decision making has on our interactions in the negotiation environment. We will develop a true understanding of the neuroscience behind creating sustainable agreements. Understanding the brain’s ability and interest in the creation of value, resolution of impasse and conflict are key components to negotiating and mediating effectively as attorneys and mediators. Using brain sensitive strategies, participants will leave this session with an understanding of reason, emotion, irrationality, and the role of ethics in the facilitation of making decisions. This session is useful for those who are looking for a constructive (and memorable) means of creating alliances, collaborative partnerships, and meaningful and enduring agreements. With a more complete understanding of the brain and what it needs to make decisions, we can as mediators and attorneys learn how to enable our clients and our colleagues move towards constructive closure.

Merri Hanson, Peninsula Mediation & ADR, Williamsburg, VA
Jennifer Kresge, Mediation, Counseling & Training Services, St. Helena, CA

Room: Columbia Foyer

B3 Interest Based Court Settlement Programs: What can we learn from International Colleagues and Judges 

Does mediation fit in our court based settlement systems? Canada, Singapore, Spain and other jurisdictions are using interest based and mediation based settlement techniques in their court settlement programs. The Ninth Circuit employs full time staff mediators. What practical opportunities and ethical questions are presented by these developments? How are programs designed to ensure quality practices and how does it impact private ADR practice? Join judges from around the world as well as program directors from the innovative Ninth Circuit Court of Appeals and the San Mateo California Superior Court as we look at how staff mediators and judges can build skills and help parties in new ways.

Claudia Bernard, U.S. Ninth Circuit Court of Appeals, San Francisco, CA
Sheila Purcell, Superior Courts of San Mateo County, California, Redwood City, CA
Dorcas Quek, District Judge, Subordinate Courts of Singapore, Singapore
Maria Rosario Garcia Alvarez, Chief Judge, Labor Div. High Court of Justice, Madrid, Spain
Andre Roy, Judge of the Superior Court of Quebec, Montreal, Quebec, Canada

Room: Concord

B5 Current Ethics Issues in Arbitration 

Ethics issues in arbitration are increasingly becoming popular with counsel seeking to vacate an arbitration award.  This panel will review recent decisions and focus on the current issues most likely to cause traps for the unprepared. Issues such as disclosure, the use of law clerks to draft awards, the use of social media by arbitrators, googling for information outside the record and the various ethics rules for arbitrators will be explored through actual examples of how problems have arisen and how to protect yourself, whether you are an arbitrator or an advocate in arbitration, from falling victim to ethical pitfalls. Special attention will be paid to disclosure. Full disclosure for arbitrators, international and domestic, is the new standard of care. Failure to tell all facts that might raise questions as to impartiality and independence — or even the appearance of bias — has translated into arbitration awards being vacated by various courts in the U.S. and abroad.

Barbara Reeves Neal, JAMS, Los Angeles, CA
Judith Meyer, JPMeyer, Comercial Dispute Solutions / Cornell University, Haverford, PA
Jay Folberg, JAMS / University of San Francisco School of Law, San Francisco, CA
John A. Sherrill, Seyfarth Shaw LLP, Atlanta, GA

Room: Lexington

B6 Civil Discourse and Collaborative Governance: Lessons and Opportunities from Abroad 

Political, policy and public problems of great complexity and importance desperately need solutions and traditional methods don’t work anymore. This conversation will explore how we can introduce radical new thinking and objectives into dialogue, civil discourse, collaborative governance, and dispute resolution and adapt a range of creative and interactive processes to the most difficult issues we face on the planet. Panelists from India, Scotland, and Hong Kong will discuss initiatives underway in their countries, the barriers to success and how they could be overcome. Furthermore, they and US panelists experienced in international conflict resolution will discuss challenges and innovative thinking, as well as approaches and new paradigms in transnational efforts, such as those by Mediators Beyond Borders, International. Audience input, ideas, questions and discussion will be elicited throughout the program.

Shahla Ali, The University of Hong Kong, Hong Kong
Charles Crumpton, Crumpton & Hansen, LLLC, Honolulu, HI
Ashok Panikkar, Meta-culture, Bangalore, India
Anna Spain, University of Colorado, Boulder, CO
John Sturrock, Core Solutions, Edinburgh, Scotland, United Kingdom

Room: Capitol B

B7 Mediation Research Mini Conference – Part II: Looking Forward 

LOOKING FORWARD, the second of two consecutive sessions, will be a facilitated discussion on the future of mediation research designed to pave the way forward. How can empirical research best help mediators become more effective at what they do? What types of questions should we ask? How do we disseminate the research: an annual conference, a dedicated journal? The panelists, a group of leading interdisciplinary researchers, practitioners and academics all, hope this session will serve as the beginning of a new era in mediation research that moves us from reliance on theory and belief to a practice built on a solid foundation of reliable, empirical research on mediator interventions that have been proven to help handle conflict.

Phillip Glenn, Emerson College, Professor of Communication Studies, Boston, MA

Carolyn Penny, International Law Programs at University of California, Davis, Davis, CA

Tania Sourdin, Australian Centre for Court and Justice System Innovation (ACCJSI) at Monash University, Melbourne, Australia 

Roselle Wissler, Arizona State U. O'Connor College of Law, Tempe, AZ
Nancy Yeend, Silicon Valley Mediation Group, Los Altos, CA

Room: Regency Foyer

B8 Dealing With Difficult People 

We all know difficult people, but it is when we have to deal with them in a mediation that our professional skills are put to test. How do you effectively interact with people whose behavior can negatively impact the road to settlement? This panel, comprised of a mediator, advocate, in-house counsel and professor will provide some guidelines for success in dealing with difficult people. Using an interactive format, the panel will define difficult people by describing their general characteristics, identify the causes of their irrationality, explore mediator and advocate responses that work best, and present appropriate and inappropriate strategies to deal with the decision making process of difficult people.

Richard Birke, Willamette University College of Law, Salem, OR
Pamela Enslen, Miller Canfield, Grand Rapids, MI
Ruth Glick, Burlingame, CA
Deborah Masucci, Chartis Insurance, New York, NY

Room: Regency D

B9 The Cadence of the Dance: What Neural Networks Are Teaching Us About Concession Rates 

Negotiators and mediators have hunches about the cadence of the negotiation dance. Listening for music in what often looks like the noise of negotiation, we have collected both dollar concessions and the elapsed time between offers in thousands of cases. Using neural networks, we are isolating trends that can be used to plan a dance, or anticipate the moves of our negotiating partner. In this program, we will explore trends in successful negotiations as well as those that end in impasse. You will get to guess whether it will be based on early dance moves.

Don Philbin, ADRtoolbox.com / Picture It Settled, LLC, San Antonio, TX
Louis Solomon, Cadwalader, New York, NY
Cari Wint, Debevoise & Plimpton, New York, NY

Room: Congressional A

B10 The Use and Misuse of Apology in Mediation 

This session will explore numerous issues for mediators and mediation advocates arising out of the variety of  possible meanings and purposes of an apology. Mediation advocates will be challenged to consider numerous possible goals of an apology and the corresponding content of an apology. Mediators will compare the techniques they use to encourage apologies and consider ethical quandries for mediators who encourage apologies.

Peter Robinson, Straus Institute for Dispute Resolution, Malibu, CA
Lee Taft, Taft Solutions, Dallas, TX

Room: Congessional B

B12 America’s Peacemakers: Mediating Civil Rights Community Conflicts in the Current Economic Climate 

In this session, the U.S. Department of Justice’s Community Relations Service ("CRS”) will introduce participants to the various services CRS offers to communities in conflict across the country in order to address tension associated with alleged discrimination and to prevent hate crimes. The Main Concurrent Session will allow CRS conciliators, from three of CRS’ ten Regions, to share case examples including how CRS diagnoses disputes, identifies issues to address, and develops unique processes to support parties in addressing community conflicts. CRS is the Federal Government's “Peacemaker” for community conflicts. CRS supplies local communities with alternative dispute resolution services and training to equip these communities with viable problem solving techniques and mechanisms that ultimately empower community members to sustain a system for resolving future conflicts in an orderly and effective manner. CRS was created in 1964 to respond to civil disorder and tension in communities rooted in racial and ethnic conflict. CRS also works with communities to employ strategies to prevent and respond to alleged violent hate crimes committed on the basis of actual or perceived race, color, national origin, gender, gender identity, sexual orientation, religion or disability.

Azekah Jennings, U.S. Department of Justice Community Relations Service, Boston, MA
Matthew Lattimer, U.S. Department of Justice Community Relations Service, New York, NY
Justin Lock, U.S. Department of Justice Community Relations Service, Chicago, IL
Becky Monroe, U.S. Department of Justice Community Relations Service, Washington, DC
Kathleen O’Quinn, U.S. Department of Justice Community Relations Service, Washington, DC

Series D: 4:15 PM – 5:30 PM

Room: Capitol A

D1 Overcoming Cognitive Illusions to Provide Procedural and Substantive Justice in Arbitration

In recent years a great deal of attention has been directed at revelations from the field of neuroscience. These behavioral studies have developed significant data on the impact cognitive illusions can have on litigated case outcomes. The panel will identify the nature of these cognitive illusions and demonstrate their accuracy through audience participation. Statistics arrived at through extensive work with judges will be reviewed along with their relevance to arbitrators’ decision making. Differences between the judicial and arbitrator role in decision making and the impact of those differences on the accuracy of decision making will be considered. Techniques for recognizing and overcoming unconscious bias and cognitive illusions will be discussed and explored.

Lela Love, Cardozo Law School, New York, NY

Charles Moxley, Kaplan Fox & Kilsheimer LLP, New York, NY
Jeff Rachlinski, Cornell Law School, Ithaca, NY  

Room: Capitol B

D2 Taking the War Out of Our Words: How Non-Defensive Communication Can Make Lawyers More Effective and Powerful Advocates and Mediators

Current research by scientists, including Dr. Joseph LeDeux, a neuroscientist at the Center for Neural Science at New York University, suggests that the moment a person becomes defensive, the complex, problem-solving part of the brain shuts down, often for an extended period of time. In her book, Taking the War Out of Our Words, Sharon Strand Ellison outlines, in detail, how traditional communication methods systemically create and accelerate conflict, consistently prompting defensive reactions. She then presents the theory and practice for a new paradigm, Powerful Non-Defensive Communication. The ability to quickly diffuse defensiveness can greatly enhance the skills of dispute resolution professionals. In this session, participants will first (a) learn about the physiology of defensiveness, and (b) gain the ability to identify subtle (and not so subtle) ways that they may be asking questions and making statements that prompt defensive reactions in clients, law students, and/or other professionals in the field of law. Second, Ellison and Kaas will present non-defensive skills, focusing on how to best use the core elements of communication — questions, statements, and predictions — in ways that can prompt people to instantly drop their defenses. Third, Ellison and Kaas will demonstrate how the process works, using actual situations. Finally, Kaas will discuss her research into how PNDC helps lawyers redefine the nature of advocacy, and how lawyers and mediators are, and can, use non-defensive communication in their practices.

Sharon Ellison, Institute for Powerful Non-Defensive Communication, Oakland, CA

Carolyn Kaas, Quinnipiac University School of Law, Hamden, CT

Room: Regency D

D3 The Checks, Balances, Threats and Opportunities in Cross-Border Commercial Mediation 

Following the May 2011 deadline for the implementation of the EU Directive on cross-border mediation and the June 2011 UN Resolution strengthening the role mediation in settlement of disputes, ADR is fast climbing the international agenda. While sound in principle, mediating between parties from different legal systems speaking different languages with different expectations of ADR all pose difficulties. With no uniform approach to enforcement of settlements and confidentiality, what does the future hold for cross-border mediation? To shed some light on these issues, we bring together some of the world’s leading mediators from the United States, Italy, Romania and Belgium, moderated by the managing director of cross-border ADR provider, JAMS International.

Constantin Adi Gavrilă, Craiova Mediation Center, Craiova, Romania
Sabine König, Mediationszentrum Hamburg, Germany

Felix Merks, Result ADR Group, Amsterdam, The Netherlands

Room: Concord

D4 FINRA Arbitration:  Inside Information for Neutrals and Advocates 

The Financial Industry Regulatory Authority administers the largest employment arbitration forum in the securities industry, covering all disputes between securities firms and their registered employees. Attorneys who handle FINRA employment cases and a FINRA  arbitrator will address how the FINRA forum differs from others, and how to join the FINRA panel of arbitrators.

Cliff Fonstein, Sidley Austin, New York, NY

Susan Grody Ruben, Arbitrator & Mediator, Cleveland, OH

Laurence Moy, Outten & Golden LLP, New York, NY

Abigail Pessen, Arbitrator & Mediator, New York, NY

Don Sapir, Sapir & Frumkin LLP, White Plains, NY

Room: Lexington

D5 Career Paths in ADR

There will be a panel discussion on career paths in ADR geared towards law students and new attorneys. The program will provide attendees with ideas on how to pursue careers in ADR from the speakers who are seasoned practitioners as well as younger attorneys who are serving as mediators and arbitrators in different fields. This panel is offered free to all law students and young attorneys in the area, even if they are not attending the ABA conference.

Clymer D. Bardsley, Good Shepherd Mediation Program, Philadelphia, PA

Serena Lee, Solo Practitioner, Seattle, WA

Jed D. Melnick, Esq., JAMS, Philadelphia, PA

Stephen J. Williams, Federal Energy Regulatory Commission, Washington, DC

Friday, April 20, 2012

Series E: 10:00 AM – 11:15 AM

Room: Capitol A

E1 Difficult Issues for Arbitrators: What Would You Do ?

An interactive program will address a series of hypothetical scenarios arising in arbitration before and during the evidentiary hearing, all of which require immediate action by the arbitrator. 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. The scenarios ae applicable to contractual arbitrataion in all areas of  the law. The audience will be asked to propose solutions before the panelists comment. Each scenario will be addressed briefly to permit the discussion of many diverse situations. Time will be reserved for the audience to propose other scenarios. All panelists are experienced commercial arbitrators.

Richard Chernick, JAMS, Los Angeles, CA

William Fitzgerald, American Arbitration Association, Los Angeles, CA
Hon. Kathleen Roberts (ret.), JAMS, New York, NY  

Room: Congressional A

E2 Brain Based Listening: A Key to Successful Mediation

Listening is more than hearing what the other person is saying. Listening is hard work and when we are listening effectively our bodies are in a heightened state of arousal. Without specific training in listening our effectiveness deteriorates over time. Investigators have found that from first grade through high school our effectiveness in listening deteriorates from 90% accuracy to 28% accuracy. As adults engaged in the process of listening to clients, we need to address our own capability to be an effective listener. In this workshop, you will learn about the brain’s natural tendency to approach negotiations from the positional perspective and look at the listening skills necessary to shift from the positional stance to the cooperative stance that will facilitate collaboration and settlement of litigation. You will also learn and identify your emotional triggers, perceptual filters, attitudes and biases that interfere with listening. The workshop will use a  family case study to identify and analyze the concepts from the presentation.

Ellen Kandell, Esq., Alternative Resolutions, LLC, Silver Spring, MD
Gloria Vanderhorst, Ph.D., Dr. Gloria Vanderhorst, Silver Spring, MD  

Room: Concord

E3 Trends in ADR and Current Perspectives of Corporate Counsel

Increasingly, all disciplines are seeking to make decisions based on empirical evidence and ADR is no different. This panel focuses on recent research and survey results regarding corporate legal practice and ADR. The principle focus of the panel will be the recently completed Cornell/CPR/Pepperdine survey of the Fortune 1000 regarding ADR practices and usage. This 2011 survey is an update to the highly regarded 1998 Cornell survey, The Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S. Corporations, but covers new territory as well. The panelists will include sponsors of the survey, corporate counsel and a leading neutral, and the discussion will address the findings of the 2011 survey, changes since 1998, perceptions of the issues, and emerging trends. The session is designed to provide participants with the most up-to-date of the different factors influencing decisions in commercial  and employment arbitration, mediation various hybrid approaches and the growing use of systemic approaches to conflict management.

Lisa Martinez Wolmart, Merck & Co, Inc., Summit, NJ
Beth Trent, International Institute of Conflict Prevention and Resolution, New York, NY  

Room: Bryce

E4 Some Assembly Required (But Not Much): Model Materials and Their Ideas for Program Design and Evaluation

This session will provide participants with top-shelf, peer-reviewed materials to support program design and evaluation. Presenters will deliver concise introductions to tested and proven resources freely available from national organizations including the ABA and CADRE, as well as findings from ongoing court ADR research funded through NSF and the ABA. Illustrations of rigorous and relevant evaluation projects will demonstrate how data may be applied to improve practice in mediation services ranging in size from solo practitioners to large managed rosters.

Timothy Hedeen, Kennesaw State University, Kennesaw, GA
Philip Moses, Consortium for Appropriate Dispute Resolution in Special Education, Eugene, OR
Jennifer Shack, Resolution Systems Institute, Chicago, IL

Donna Shestowsky, UC Davis School of Law, Davis, CA  

Room: Regency Foyer

E5 When Is A Deal A Deal?  The Impact of Culture on Closure and the Durability of Settlement Agreements

Western negotiators highly value a written contract as a binding and enforceable agreement, however the contract may be not be seen as "final" in the eyes of some other cultures. Across the world, cultures view fairness, truth, and durability quite differently. Since cultures have different communication styles (high and low context), it is often difficult to understand the other party's intent and to know when a deal is actually a deal. For example, "yes" does not always mean "I agree." In addition, how people see their ability to impact the future (the concept of internal and external locus of control) and their level of comfort with risk and uncertainty (high and low uncertainty avoidance) impacts how cultures view the level of detail and enforceability clauses needed in written agreements. This workshop will focus on understanding the above theoretical concepts, and will provide practical  tips and techniques in working with other cultures. The presenter has been presenting cross cultural workshops and trainings for over fifteen years both nationally and internationally.

Nina Meierding, Negotiation and Mediation Training Services, Bainbridge Island, WA

Room: Bunker Hill

E6 Ring-a-ling: Ethics and Trust in Telephone Mediation

As mediators increasingly rely on technology for all or part of their mediation, they must be cognizant of the best ways to maximize technology’s effectiveness to foster productive communication despite the lack of contextual cues such as eye contact, proximity, personal space, and demeanor. Mediators’ central role is to facilitate communication; therefore, one of their primary responsibilities is to engender trust, which in turn helps to enhance candid communication and good faith participation. In this highly interactive session, the presenters will demonstrate ethical concerns involved in a telephonic mediation and highlight new research that poses Six Principles of Trust. Although the Principles may apply to a face-to-face mediation, they also demonstrate the extra attention that an online mediator must give to the participants in order to gain and maintain their trust.

Jessica Carter, Department of Building and Housing, Auckland, New Zealand
Susan Exon, University of La Verne College of Law, Ontario, CA
Juliet Whinston, Consultant, McKinney, TX  

Room: Lexington

E7 Family Enterprise Conflict: Tough Challenges and Great Opportunities

Helping a family deal with protracted conflict in its family enterprise presents outside professionals with tough challenges as well as great opportunities. Such enterprises – including family-owned business, joint investments, real estate inheritance, vacation property, shared art, philanthropy – generate complex conflicts that mix emotional dimensions of family with legal complexities of shared interests and ownership. The panel – composed of a family systems consultant, attorney, and mediator – will explore the multidisciplinary challenges of helping families deal constructively with such conflicts. They draw lessons from their practices, including having jointly assisted siblings and cousins untangle a protracted dispute and make decisions charting a productive way forward.  

In this interactive presentation, panelists will provide attendees the opportunity to address in small groups some of the toughest challenges in family enterprise conflict resolution, informed by the panelists’ experiences that family enterprises can be helped to make difficult decisions, reach agreements on urgent and immediate disputes, and begin to change the way they deal with each other on an ongoing basis – even in the face of continuing discomfort over long-standing and seemingly irresolvable differences. Making structural changes can create over time an opportunity, but not a guarantee, to improve long-term relationships.

Richard Alper, Richard S. Alper, ESQ, Washington, DC
Kathy Wiseman, Working Systems, Inc, Washington, DC

John Wofford, John G. Wofford, ESQ., Cambridge, MA

Room: Columbia Foyer

E8 Emerging Opportunities to Resolve Disputes in Healthcare

Top professionals in both healthcare law and mediation will share their experiences in today’s fast-growing healthcare sector which has become highly politicized with not only legal, but moral, and family/ethical/religious issues. Topics will include: facilitating resolution of end-of-life decision-making in the family/healthcare provider/religious advisor context; dealing with advance directives before and in the ICU; staffing issues (chief medical officer vis-á-vis vice-president of human relations); physician credentialing; bioethics issues in clinical trials and use of institutional patient data; family intervention issues regarding addictions and other anti-social behaviors; and allocation of scarce resources in an era of limited funds/providers/organs. In addition, the panel will discuss developing an institutional process to deal with these emerging questions and, further, recent developments in healthcare that create career development opportunities for mediators and health administration professionals.

Larry Bridgesmith, Institute for Conflict Management, Lipscomb University, Nashville, TN
Patrick Nichols, Patrick R. Nichols, Chtd., Lawrence, KS

Kathy Perkins, Kathy Perkins LLC, Lawrence, KS
John Phillips, Husch Blackwell LLP, Kansas City, MO
Charity Scott, College of Law and Robinson College of Business, Atlanta, GA
Ellen Waldman, Thomas Jefferson School of Law, San Diego, CA  

Room: Congressional CD

E9 ACUS, OGIS, NMB and ODR: Expanding Technology-Assisted Dispute Resolution in Federal Agencies

The Administrative Conference of the United States (ACUS) was largely responsible for passage of the Administrative Dispute Resolution Act of 1990 and for establishing the current ADR framework in the federal government. In 1994, however, its funding was terminated and it ceased operation. Sixteen years later, in 2010, it was revived with the goal of improving the fairness and effectiveness of agencies and dispute resolution is again likely to be a major area of activity. Many of the original reasons for passing the ADR Act of 1990 are now relevant to ODR. In 2007, Congress ushered in a new era in the Freedom of Information Act (FOIA) world when it amended FOIA to create the Office of Government Information Services (OGIS) to provide mediation services to resolve disputes between FOIA requesters and all 97 Executive Branch departments and agencies. Increased use of ODR is likely as the OGIS caseload increases. The National Mediation Board has been a pioneer in ODR, using technology in various ways in its work with airlines and railroads. This panel will discuss the potential for ODR, significant challenges and actual accomplishments.

Karen Finnegan, Office of Government Information Services, Washington, DC

Ethan Katsh, National Center for Technology and Dispute Resolution, Needham, MA
Scott Rafferty, former Senior Counsel, Administrative Conference of the United States, Washington, DC
Daniel Rainey, National Mediation Board, Washington, DC

Series F: 11:30 AM – 12:45 PM

Room: Capitol A

F1 Achieving  Justice through 21st  Century Arbitration

The increasing costs, prolonged delays and reduced funding for public courts that plague contemporary civil litigation are denying parties their day-in-court and make the need for private justice more imperative than ever.   A well administered and managed arbitration with a neutral arbitrator and a prompt, efficient and fair hearing  is the parties, and perhaps the nation’s, best hope for the American legal system to provide full, final and binding civil justice. Nevertheless, the bad press and even demonization of ADR’s classic resolution process- commercial arbitration- have gone largely unchallenged in recent years. Too seldom is arbitration praised for being the most cost efficient direct route to a just resolution of a dispute. This panel will examine and opine on this state of affairs, discuss the proper role of “justice” in commercial arbitration proceedings, examine the role of private justice in the origins of arbitration and offer contemporary definitions of “private justice”. The panel will also discuss how best to achieve “Private Justice” while avoiding contravention of the US Supreme Court admonition against arbitrators “dispensing their own brand of industrial justice”.

Curtis von Kann, JAMS, Washington, DC

Judith Hale Norris, Straus Institute of Dispute Resolution, Los Angeles, CA
Stephen Rohde, Rohde & Victoroff, Los Angeles, CA
Daniel Winslow, Proskauer, Boston, MA 

Room: Regency A

F2 The Transformative Master Practitioner: The Social Brain -Conflict Transformation and Trauma in Intractable Clients

This dynamic pair of trainers will provide an interactive presentation on the social brain and human dynamics in conflict, trauma and conflict, the neurobiology of reactivity and how it informs the work that practitioners do in conflict and peacebuilding. They will explore the social brain, trauma and conflict transformation. They will facilitate and discuss simulations with traumatized clients and strategies for the practitioner to enhance their own awareness at the table. Interventions for transformation will be explored. These facilitators are committed to providing practical outcomes for practitioners.

Nan Waller Burnett, MA, Dispute Resolution Professionals, LLC / Mediators Beyond Borders, Golden, CO

Louise Phipps Senft, ESQ., Baltimore Mediation / LPS Associates, Baltimore, MD  

Room: Concord

F3 Deal Counsel: A New Frontier For Dispute Resolution Professionals

ADR professionals have the skills, the understanding of cognitive and behavioral psychology, sociology, behavioral economics, cultivated self-awareness, even neuroscience to be great deal lawyers. Yet they have not moved smoothly into the world of the deal. Concepts and roles like that of “Settlement Counsel” or  “Negotiation Counsel”  and fields such as “Collaborative Law” have extended the negotiation skills of mediation, but the context remains one of resolving disputes under the shadow of litigation. Concepts that have been espoused, roles that have been defined, and structures previously identified to provide ADR professionals easy access to transactions have not been widely adopted. This session explores these issues and from it, attendees will appreciate: the skills a deal lawyer uses to structure, negotiate and close a business transaction; how ADR professionals can develop and apply those skills and what else it will take to move into the realm of the deal;  how concepts like BATNA or the impact of the shadow of the law differ when litigation is remote; the institutional structures and principles of mediation that best can be applied in transactions; and ultimately how to “mediate a deal” and how to position oneself in the marketplace.

Donald W. Douglas, Leveraged Negotiations, LLC, Lake Oswego, OR
Scott Peppet, The University of Colorado Law School, Boulder, CO

Tina L. Stark, Boston University School of Law, Boston, MA  

Room: Bunker Hill

F4 State Appellate Mediation--A Status Report on Current Activities, Approaches, Successes and Challenges

State appellate courts in approximately thirty-three states now offer ADR services in civil appellate cases. The Maryland Court of Special Appeals Office of Medation has recently completed a survey of state appellate mediation programs to gather comprehensive data on the operations of such programs, including types of cases mediated, settlement rates, selection and qualifications of mediators, program management, mediation costs, modes of mediation and other ADR services, noteworthy successes, and continuing challenges. The survey, information gathering and distribution and follow-up discussions, including this workshop, are intended to assist in the continuing development of appellate mediation within existing programs, to promote increasing dialogue between state appellate mediation providers, to help support the creation of new state appellate mediation services, and to compare state appellate mediation with other state and federal court-based mediation activities.  The facilitators/presenters will provide an overview of the information received, and have invited state appellate mediation leaders from around the country to participate in the presentations and discussions.

Tara Lehner, Office of Mediation, Maryland Court of Special Appeals, Annapolis, MD
Mala Malhotra-Ortiz, Office of Mediation, Maryland Court of Special Appeals, Annapolis, MD  

Room: Yosemite

F5 Dispute System Design in Comparative and Transnational Settings

The field of dispute system design (DSD) has developed significantly over the last 20 years. Most literature on DSD refers to systems for preventing, managing, and resolving conflict in organizations. DSD applies equally to systems for governance, both within a nation-state and across countries. It includes efforts to design national constitutions, conflict resolution structures that cross national boundaries, and international initiatives aimed at reforming corrupt or failed states. This session will focus on DSD in the international arena, including both transnational systems and systems within a developing nation-state. Lisa Blomgren Bingham will discuss definitions of the rule of law, current approaches to governance, and rule of law initiatives as examples of DSD in governance. Janet Martinez will highlight system design features for: (1) online dispute resolution provisions being developed by the UNCITRAL Working Group III for low value, high volume cross-border e-commerce disputes, and (2) European national mediation provisions adopted pursuant to the EU Directive on mediation in civil and commercial matters. Stephanie Smith will address application of DSD principles to international efforts to assist countries emerging from war or authoritarian regimes. Topics will include integrating local and international knowledge, "top-down" and "bottom-up" strategies, and formal and informal justice mechanisms.

Lisa Blomgren Bingham, University of Nevada Las Vegas William S. Boyd School of Law, Las Vegas, NV
Janet K. Martinez, Stanford Law School, Stanford, CA
Stephanie E. Smith, Stanford Law School, Stanford, CA  

Room: Columbia Foyer

F6 Effective Use of Mediation in Healthcare Disputes: False Claims Act and Physician Business Disputes

This session will cover the mediation of significant disputes in healthcare field. Topics that will be discussed include: discussion of needs and concerns of healthcare disputants, eg, patient privacy; business confidentiality; elimination of disputes that threaten businesses; management of relationships with investors, lenders, vendors, other staff, etc.; avoidance of public controversy especially by educational and charitable organizations in healthcare. The session will also focus on ways to address those particularized needs especailly in context of False Claims cases brought by federal and state governments and in context of physician disputes with practice groups and hospitals. This program is derived from Section's new initiative to collaborate with health law section of ABA.

David Douglass, Shook Hardy Bacon, Washington, DC
A. Thomas Morris, US Dept of Justice, Washington, DC
Wayne Thorpe, JAMS, Atlanta, GA

Sidney S. Welch, Arnall Golden Gregory LLP, Atlanta, GA  

Room: Lexington

F7 Resolving Elder Decisions and Disputes: Mediation and Arbitration before and after the Elder’s Death

Mediation of decisions and disputes related to elders is a growing area of Dispute Resolution practice. This workshop will explore how families can avoid and address a range of issues and legal problems through ADR while an elder is living and after an elder’s death. An elder mediation trainer and author, an estate distribution mediator, a probate arbitrator and a Probate Court ADR administrator will address the challenges and opportunities of mediating and arbitrating these cases.

Dana Curtis, Elder Mediation Group, Sausilito, CA

Sheila Purcell, San Mateo Superior Court, Redwood City, CA
Thomas Reese, Thomas Reese, ADR Office, Palo Alto, CA
Stephen Yusem, Morris and Clemm, P.C., Philadelphia, PA

Room: Congressional CD

F8 Federal Alternative Dispute Resolution Programs:  Successes and Challenges

There are many success stories in the federal Alternative Dispute Resolution community. Yet ADR remains underutilized in the federal government. The panelists will look at the priorities and needs of the agency ADR programs, highlight ADR success stories and identify emerging areas for ADR in the federal government. The program will inform both the federal ADR practitioners and the larger ADR community about how ADR is being implemented by agencies and about the potential for ADR in the government, including areas in which the government can improve agency effectiveness and save scarce resources. Three of the four panelists are members of the Steering Committee of the Interagency Alternative Dispute Resolution Working Group (IADRWG), established by Presidential Memorandum of May 1, 1998, to assist federal agencies in developing and operating ADR programs (www.adr.gov/interagency-working-group.html). The group is the central forum and resource for information about the federal government's use of ADR. In the winter of 2011, the IADRWG expects to be a co-sponsor with the Administrative Conference of the United States (ACUS) and the U.S. Department of Justice in presenting a workshop devoted to these issues. This program is an opportunity to report and build on the outcome of that workshop.

Howard Gadlin, National Institutes of Health, Bethesda, MD
Deirdre Gallagher, Dispute Resolution Service Organization, Federal Energy Regulatory Commission (FERC), Washington, DC

Shawne McGibbon, Administrative Conference of the United States (ACUS), Washington, DC
Miriam Nisbet, Office of Government Information Services (OGIS), National Archives and Records Administration, College Park, MD  

Room: Regency Foyer

F9 Getting Past Impasse

This interactive panel, which will include audience participation, demonstrations, and a short video excerpt, will focus on avoiding, employing, and addressing apparent impasse in varied and novel ways to reach resolution.   Each of the panelists has contributed a chapter in the recently published "Definitive Creative Impasse-Breaking Techniques in Mediation: When All Else Fails" (Molly Klapper , Ed, New York State Bar Association 2011) and relevant chapters will form the written materials for the presentation. The panel will explore the role of venting emotions on impasse; the rules for a mediator to live by to avoid impasse; the cognitive impediments that together constitute “Client Think” and impede accurate case valuation, but can be overcome; and the particular problems created when multiple defendants engage in fingerpointing and seek to avoid shouldering an appropriate risk-based share of a settlement. This presentation is suitable for sophisticated advocates in mediation and for mediators who wish to get beyond initial trainings.

Simeon Baum, Resolve Mediation Services, Inc, New York, NY

Barbara Byrd Wecker, Greenberg Dauber Epstein & Tucker, PC, Newark, NJ

Laura Kaster, Appropriate Dispute Solutions, Princeton, NJ
Terri Reicher, Terri Roth Reicher, Esq, Pompton Lakes, NJ

Room: Regency A

F10 Leader as Facilitator:  Lessons Learned from President Obama's Negotiating Style

President Obama's mediation training and negotiation skills have not succeeded in creating the centrist coalition that he sought, or even a reliable process leading to negotiated agreements on major legislative proposals. Can a political leader simultaneously act as a good-faith neutral facilitator? What are the negotiation skills needed if one or both parties refuse integrative solutions, or have as a central interest frustration with the process itself? Is the Office of the President one of Negotiator-in-Chief? In the current political environment, are the interests of a critical stakeholder -- the American public -- being effectively represented? What lessons are learned from negotiation efforts that seek to create consensus, yet that seem to have resulted in increased polarization, lack of trust, and erosion of respect among the negotiators?

F. Peter Phillips, Business Conflict Management LLP, Montclair, NJ
Margaret Shaw, JAMS, New York, NY

Lawrence Susskind, Consensus Building Institute, Cambridge, MA 

Room: Capitol B

F12 Incentives for Counsel to Use ADR More Aggressively

A panel of current and former in-house attorneys will discuss incentives for outside firms to use ADR more aggressively. Studies suggest that the use of mediation earlier in the life of a claim results in significant cost and time savings. This panel will provide concrete examples of how to provide incentives for the early use of ADR to everyone’s benefit. The panel will first review reasons for utilizing ADR tools early on in the life of a claim. This discussion will be followed by a conversation about the best methods for resolving claims earlier – whether through the use of multi-step ADR clauses, alternative fee agreements, settlement counsel, or other tools.

David H. Burt, E.I. du Pont de Nemours and Company, Wilmington, DE
Erin Gleason Alvarez, Chartis, Brooklyn, NY
B. Rose Miller, ADR Solutions, LLC, Atlanta, GA  

Series F: 11:30 AM – 12:45 PM

Room: Capitol A

F1 Achieving  Justice through 21st  Century Arbitration

The increasing costs, prolonged delays and reduced funding for public courts that plague contemporary civil litigation are denying parties their day-in-court and make the need for private justice more imperative than ever.   A well administered and managed arbitration with a neutral arbitrator and a prompt, efficient and fair hearing  is the parties, and perhaps the nation’s, best hope for the American legal system to provide full, final and binding civil justice. Nevertheless, the bad press and even demonization of ADR’s classic resolution process- commercial arbitration- have gone largely unchallenged in recent years. Too seldom is arbitration praised for being the most cost efficient direct route to a just resolution of a dispute. This panel will examine and opine on this state of affairs, discuss the proper role of “justice” in commercial arbitration proceedings, examine the role of private justice in the origins of arbitration and offer contemporary definitions of “private justice”. The panel will also discuss how best to achieve “Private Justice” while avoiding contravention of the US Supreme Court admonition against arbitrators “dispensing their own brand of industrial justice”.

Curtis von Kann, JAMS, Washington, DC

Judith Hale Norris, Straus Institute of Dispute Resolution, Los Angeles, CA
Stephen Rohde, Rohde & Victoroff, Los Angeles, CA
Daniel Winslow, Proskauer, Boston, MA 

Room: Regency A

F2 The Transformative Master Practitioner: The Social Brain -Conflict Transformation and Trauma in Intractable Clients

This dynamic pair of trainers will provide an interactive presentation on the social brain and human dynamics in conflict, trauma and conflict, the neurobiology of reactivity and how it informs the work that practitioners do in conflict and peacebuilding. They will explore the social brain, trauma and conflict transformation. They will facilitate and discuss simulations with traumatized clients and strategies for the practitioner to enhance their own awareness at the table. Interventions for transformation will be explored. These facilitators are committed to providing practical outcomes for practitioners.

Nan Waller Burnett, MA, Dispute Resolution Professionals, LLC / Mediators Beyond Borders, Golden, CO

Louise Phipps Senft, ESQ., Baltimore Mediation / LPS Associates, Baltimore, MD  

Room: Concord

F3 Deal Counsel: A New Frontier For Dispute Resolution Professionals

ADR professionals have the skills, the understanding of cognitive and behavioral psychology, sociology, behavioral economics, cultivated self-awareness, even neuroscience to be great deal lawyers. Yet they have not moved smoothly into the world of the deal. Concepts and roles like that of “Settlement Counsel” or  “Negotiation Counsel”  and fields such as “Collaborative Law” have extended the negotiation skills of mediation, but the context remains one of resolving disputes under the shadow of litigation. Concepts that have been espoused, roles that have been defined, and structures previously identified to provide ADR professionals easy access to transactions have not been widely adopted. This session explores these issues and from it, attendees will appreciate: the skills a deal lawyer uses to structure, negotiate and close a business transaction; how ADR professionals can develop and apply those skills and what else it will take to move into the realm of the deal;  how concepts like BATNA or the impact of the shadow of the law differ when litigation is remote; the institutional structures and principles of mediation that best can be applied in transactions; and ultimately how to “mediate a deal” and how to position oneself in the marketplace.

Donald W. Douglas, Leveraged Negotiations, LLC, Lake Oswego, OR
Scott Peppet, The University of Colorado Law School, Boulder, CO

Tina L. Stark, Boston University School of Law, Boston, MA  

Room: Bunker Hill

F4 State Appellate Mediation--A Status Report on Current Activities, Approaches, Successes and Challenges

 

State appellate courts in approximately thirty-three states now offer ADR services in civil appellate cases. The Maryland Court of Special Appeals Office of Medation has recently completed a survey of state appellate mediation programs to gather comprehensive data on the operations of such programs, including types of cases mediated, settlement rates, selection and qualifications of mediators, program management, mediation costs, modes of mediation and other ADR services, noteworthy successes, and continuing challenges. The survey, information gathering and distribution and follow-up discussions, including this workshop, are intended to assist in the continuing development of appellate mediation within existing programs, to promote increasing dialogue between state appellate mediation providers, to help support the creation of new state appellate mediation services, and to compare state appellate mediation with other state and federal court-based mediation activities.  The facilitators/presenters will provide an overview of the information received, and have invited state appellate mediation leaders from around the country to participate in the presentations and discussions.

Tara Lehner, Office of Mediation, Maryland Court of Special Appeals, Annapolis, MD
Mala Malhotra-Ortiz, Office of Mediation, Maryland Court of Special Appeals, Annapolis, MD

Room: Yosemite

F5 Dispute System Design in Comparative and Transnational Settings 

The field of dispute system design (DSD) has developed significantly over the last 20 years. Most literature on DSD refers to systems for preventing, managing, and resolving conflict in organizations. DSD applies equally to systems for governance, both within a nation-state and across countries. It includes efforts to design national constitutions, conflict resolution structures that cross national boundaries, and international initiatives aimed at reforming corrupt or failed states. This session will focus on DSD in the international arena, including both transnational systems and systems within a developing nation-state. Lisa Blomgren Bingham will discuss definitions of the rule of law, current approaches to governance, and rule of law initiatives as examples of DSD in governance. Janet Martinez will highlight system design features for: (1) online dispute resolution provisions being developed by the UNCITRAL Working Group III for low value, high volume cross-border e-commerce disputes, and (2) European national mediation provisions adopted pursuant to the EU Directive on mediation in civil and commercial matters. Stephanie Smith will address application of DSD principles to international efforts to assist countries emerging from war or authoritarian regimes. Topics will include integrating local and international knowledge, "top-down" and "bottom-up" strategies, and formal and informal justice mechanisms.

Lisa Blomgren Bingham, University of Nevada Las Vegas William S. Boyd School of Law, Las Vegas, NV
Janet K. Martinez, Stanford Law School, Stanford, CA
Stephanie E. Smith, Stanford Law School, Stanford, CA

Room: Columbia Foyer

F6 Effective Use of Mediation in Healthcare Disputes: False Claims Act and Physician Business Disputes 

This session will cover the mediation of significant disputes in healthcare field. Topics that will be discussed include: discussion of needs and concerns of healthcare disputants, eg, patient privacy; business confidentiality; elimination of disputes that threaten businesses; management of relationships with investors, lenders, vendors, other staff, etc.; avoidance of public controversy especially by educational and charitable organizations in healthcare. The session will also focus on ways to address those particularized needs especailly in context of False Claims cases brought by federal and state governments and in context of physician disputes with practice groups and hospitals. This program is derived from Section's new initiative to collaborate with health law section of ABA.

David Douglass, Shook Hardy Bacon, Washington, DC
A. Thomas Morris, US Dept of Justice, Washington, DC
Wayne Thorpe, JAMS, Atlanta, GA

Sidney S. Welch, Arnall Golden Gregory LLP, Atlanta, GA

Room: Lexington

F7 Resolving Elder Decisions and Disputes: Mediation and Arbitration before and after the Elder’s Death 

Mediation of decisions and disputes related to elders is a growing area of Dispute Resolution practice. This workshop will explore how families can avoid and address a range of issues and legal problems through ADR while an elder is living and after an elder’s death. An elder mediation trainer and author, an estate distribution mediator, a probate arbitrator and a Probate Court ADR administrator will address the challenges and opportunities of mediating and arbitrating these cases.

Dana Curtis, Elder Mediation Group, Sausilito, CA

Sheila Purcell, San Mateo Superior Court, Redwood City, CA
Thomas Reese, Thomas Reese, ADR Office, Palo Alto, CA
Stephen Yusem, Morris and Clemm, P.C., Philadelphia, PA

Room: Congressional CD

F8 Federal Alternative Dispute Resolution Programs:  Successes and Challenges

There are many success stories in the federal Alternative Dispute Resolution community. Yet ADR remains underutilized in the federal government. The panelists will look at the priorities and needs of the agency ADR programs, highlight ADR success stories and identify emerging areas for ADR in the federal government. The program will inform both the federal ADR practitioners and the larger ADR community about how ADR is being implemented by agencies and about the potential for ADR in the government, including areas in which the government can improve agency effectiveness and save scarce resources. Three of the four panelists are members of the Steering Committee of the Interagency Alternative Dispute Resolution Working Group (IADRWG), established by Presidential Memorandum of May 1, 1998, to assist federal agencies in developing and operating ADR programs (www.adr.gov/interagency-working-group.html). The group is the central forum and resource for information about the federal government's use of ADR. In the winter of 2011, the IADRWG expects to be a co-sponsor with the Administrative Conference of the United States (ACUS) and the U.S. Department of Justice in presenting a workshop devoted to these issues. This program is an opportunity to report and build on the outcome of that workshop.

Howard Gadlin, National Institutes of Health, Bethesda, MD
Deirdre Gallagher, Dispute Resolution Service Organization, Federal Energy Regulatory Commission (FERC), Washington, DC

Shawne McGibbon, Administrative Conference of the United States (ACUS), Washington, DC
Miriam Nisbet, Office of Government Information Services (OGIS), National Archives and Records Administration, College Park, MD  

Room: Regency Foyer

F9 Getting Past Impasse

This interactive panel, which will include audience participation, demonstrations, and a short video excerpt, will focus on avoiding, employing, and addressing apparent impasse in varied and novel ways to reach resolution.   Each of the panelists has contributed a chapter in the recently published "Definitive Creative Impasse-Breaking Techniques in Mediation: When All Else Fails" (Molly Klapper , Ed, New York State Bar Association 2011) and relevant chapters will form the written materials for the presentation. The panel will explore the role of venting emotions on impasse; the rules for a mediator to live by to avoid impasse; the cognitive impediments that together constitute “Client Think” and impede accurate case valuation, but can be overcome; and the particular problems created when multiple defendants engage in fingerpointing and seek to avoid shouldering an appropriate risk-based share of a settlement. This presentation is suitable for sophisticated advocates in mediation and for mediators who wish to get beyond initial trainings.

Simeon Baum, Resolve Mediation Services, Inc, New York, NY

Barbara Byrd Wecker, Greenberg Dauber Epstein & Tucker, PC, Newark, NJ

Laura Kaster, Appropriate Dispute Solutions, Princeton, NJ
Terri Reicher, Terri Roth Reicher, Esq, Pompton Lakes, NJ

Room: Regency A

F10 Leader as Facilitator:  Lessons Learned from President Obama's Negotiating Style

President Obama's mediation training and negotiation skills have not succeeded in creating the centrist coalition that he sought, or even a reliable process leading to negotiated agreements on major legislative proposals. Can a political leader simultaneously act as a good-faith neutral facilitator? What are the negotiation skills needed if one or both parties refuse integrative solutions, or have as a central interest frustration with the process itself? Is the Office of the President one of Negotiator-in-Chief? In the current political environment, are the interests of a critical stakeholder -- the American public -- being effectively represented? What lessons are learned from negotiation efforts that seek to create consensus, yet that seem to have resulted in increased polarization, lack of trust, and erosion of respect among the negotiators?

F. Peter Phillips, Business Conflict Management LLP, Montclair, NJ
Margaret Shaw, JAMS, New York, NY

Lawrence Susskind, Consensus Building Institute, Cambridge, MA 

Room: Capitol B

F12 Incentives for Counsel to Use ADR More Aggressively

A panel of current and former in-house attorneys will discuss incentives for outside firms to use ADR more aggressively. Studies suggest that the use of mediation earlier in the life of a claim results in significant cost and time savings. This panel will provide concrete examples of how to provide incentives for the early use of ADR to everyone’s benefit. The panel will first review reasons for utilizing ADR tools early on in the life of a claim. This discussion will be followed by a conversation about the best methods for resolving claims earlier – whether through the use of multi-step ADR clauses, alternative fee agreements, settlement counsel, or other tools.

David H. Burt, E.I. du Pont de Nemours and Company, Wilmington, DE
Erin Gleason Alvarez, Chartis, Brooklyn, NY
B. Rose Miller, ADR Solutions, LLC, Atlanta, GA

Series G: 2:30 PM – 3:45 PM

Room:  Capitol A

G1 The Future of Domestic and International Arbitration 

Is commercial arbitration in a death spiral from which it will not recover? Or has the crescendoing criticism of American style arbitration lead to institutional and individual arbitrator responses which are revitalizing arbitration for a bright, thriving and sustained future in the new millennium? Will arbitration continue along a path of arbi-litigation or has the vast propagation of cost conscious best practices protocols set the stage for arbitration to once again be praised as the most cost efficient direct route to a just resolution of a dispute. This panel of world renowned panel of experts, all of whom are position to profoundly shape the trajectory of public, government and professional perceptions, use and practice of arbitration domestically and internationally, will share their insights and prognostications of the future of domestic and international arbitration.

Lorraine M. Brennan, JAMS International, London, United Kingdom

Reginald Holmes, The Holmes Law Firm, Pasadena, CA
Eric P. Tuchmann, American Arbitration Association, New York, NY

Mike Williams, Michael A. Williams, LLC, Denver, CO

Room: Regency Foyer

G2 Lie Detection for Dispute Resolution: Lessons from Studies, Wizards, and the Fields

Previous sessions on the science of lie detection and emotional truthfulness have had packed crowds at past events. This new session builds on the past science but adds several important twists. First, it continues the use of science based materials on both aspects of lie detection and emotional awareness true in all cultures along with important cultural differences.  Second, it adds a second new speaker with unique experience: a former high level Secret Service agent with global experience in interviews and investigation. In addition, the new speaker is in the top 1/3 of one percent of those tested for lie detection - one of the "truth wizards" identified by leaders in the field. Third, this session continues the use of material from testimony and simulated negotiations, but it adds new material from actual mediations. Fourth, the session introduces new research  that suggests mindfulness and other types of meditation may improve lie detection abilities. The new session therefore addresses several audiences.  Those with no experience with lie detection or emotional awareness will get an introduction to the science.  Those with experience will learn both a new set of tools and perspectives and new examples.

Clark Freshman, University of California, Hastings College of Law, San Francisco, CA
Paul Kelly, Paul Ekman Group, San Francisco, CA 

Room: Columbia Foyer

G3 Getting Engaged:  Learning Conflict Theory and Practice through Kinesthetic Experience 

This session will feature work from the forthcoming ABA book Dancing at the Crossroads on physical/movement-based approaches for teaching conflict theory and practice. Kinesthetic or physical strategies foster awareness, flexibility and creativity. They shift negative perceptions and intractability. Because they tap a human universal --physical experience, these strategies are helpful in informing work across cultures.  Disputes always have physical dimensions, yet many approaches to intervention and pedagogy focus primarily on mental, analytic dynamics. When the body is understood as the site of disputing, neuroscientific findings directly inform intervention. For example, using movement-based language in intervention can be helpful because mirror-neurons build capacities for new behaviors even in observers. The session draws on seven years of research/practice exploration. Participants in the session will learn how mediators and negotiators from multiple countries and areas of practice have implemented a range of tools to enhance their teaching and practice. They will experience ways that physical/expressive approaches can deepen understandings of complex disputes, enhance third party effectiveness, and catalyze positive turning points. Four experienced legal educators/dialogue practitioners will give examples of how this work has deepened theoretical understandings of conflict and enhanced their practices.

Andrew Acland, Andrew Acland & Associates, Wotton-under-Edge, Gloucestershire, United Kingdom

Kenneth (Ken) Fox, Hamline University, St Paul, MN
Michelle LeBaron, University of British Columbia Faculty of Law, Vancouver, British Columbia Canada
Sharon Press, Hamline University--Dispute Resolution Institute, St Paul, MN

Andrea Schneider, Marquette University Law School, Milwaukee, WI

Room: Yosemite

G4 Developing a Global Online Dispute Resolution System: From eBay to the United Nations and Beyond

Today’s technology is enabling billions to people to interact with each other around the world. Just like the face-to-face world, disputes arise in these interactions, and they must be resolved in a low-cost, efficient manner. eBay and PayPal, for example, currently handle 60 million low-value, high-volume disputes each year, and each needs to be resolved quickly and fairly to enable continued growth in the marketplace.  In response to this need, the United Nations Commission on International Trade Law (UNCITRAL) has created a Working Group to develop recommendations for a fair, low-cost, cross-jurisdictional online dispute resolution (ODR) system for the resolution of disputes. This system has the potential to bring justice to many millions of online users who cannot get fair redress through currently available judicial channels because legal and court costs make the enforcement of such low-value, high-volume claims impractical. This new ODR system may also may serve as the foundation for other global redress systems, for matters ranging from privacy to intellectual property to even global peacemaking.

Jeffrey M. Aresty, Internetbar.org, Sudbury, MA

Colin Rule, Modria.com, San Jose, CA
Darin Thomson, British Columbia Public Service, British Columbia, Canada  

Room: Bunker Hill

G5 Confidentiality and Disclosure Issues for ADR Neutrals in Technology Disputes

The program will discuss different ethical issues that may arise during technology related arbitrations or mediations. Particular emphasis will be on on the level of disclosure required by the ADR professional. Topics will include conflicts of interest, technology related conflicts, confidentiality and obligations imposed by ADR provider organizations. In addition, issues under the ABA Model Rules, the ABA guidelines for mediators and the various court advisory committees will be addressed. Also, we will cover post ADR confidentility issues.

John Delehanty, Mintz, Levin, Cohn, Ferris, Glovsky, New York, NY

J William Frank, FrankADR, Racine, WI
Suzanne Nusbaum, Impartia, Los Gatos, CA
Sandra Sellers, Technology Mediation Services, LLC, McLean, VA  

Room: Lexington

G6 Parenting Coordination:  Is This New ADR Process Meeting Its Goals?

Parenting coordination is a relatively new hybrid ADR process that combines mediation, arbitration/decision-making, coaching, case management and parent education with the goal of helping high-conflict parents implement and clarify their parenting plans and court orders. The PC role can be an ethical and practice minefield for the unwary practitioner and also for the referring professional, such as a lawyer, mediator, and the court. Challenges include the reaction of a party who is on the “losing side” of a recommendation or decision, burnout of the professional who is assigned to the parents and is constantly being pulled by demanding, unreasonable people, and the problem of the PC being paid for his or her services. From the referring vantage point, there are difficulties in finding professionals who can remain neutral when faced with difficult personalities and have the skills to bring parties to agreement, but who can also make decisions when necessary within the legal framework of the role.  Four experienced ADR professionals, including a parenting coordinator, a referring mediator, a family court judge, and a court administrator, will discuss the challenging practice issues from their different perspectives and, in interaction with the participants, offer solutions and opinions on the role’s effectiveness.

Christine Coates, J.D., Christine A. Coates, JD, Dispute Resolution Professional, Boulder, CO
Linda Fieldstone, M.Ed., Family Court Services, 11th Judicial Circuit, Miami, FL
Hon. Denise Herman McColley, Henry County Family Court, Napoleon, OH
Zena Zumeta, J.D., Mediation Training & Consultation Institute, Ann Arbor, MI  

Room: Congressional CD

G7 Effectively Using Mediators for Legal Settlements and Facilitators for Agreements on Public Policy:  Are There Practice Differences?

It has always been a premise for many that mediation is a process that is applicable to a wide variety of situations and that a good mediator can serve parties successfully across a spectrum of disputes. As the practice of mediation is more fully integrated into the resolution of disputes and development of public policy agreements, parties are becoming ever more sophisticated in how they select and utilize ADR professionals. This panel will examine the evolution of two primary areas of ADR practice, mediating the negotiation of legal agreements and facilitating agreements on public policy, as it explores the reality of mediation practice. This session will describe how the mediation practices in these two contexts may differ, and how the outcomes, procedures, and qualifications for mediators may be similar or different.

David Batson, US Environmental Protection Agency, Senior ADR Specialist, Washington, DC

John Bickerman, Bickerman Dispute Resolution, Washington, DC

David Harder, Environment and Natural Resources Division, Department of Justice, Denver, CO

Suzanne Orenstein, Udall Foundation/US Institute for Environmental Conflict Resolution, Washington, DC
Deborah Osborne, Federal Energy Regulatory Commission, Washington, DC  

Room: Concord

G8 Can Mediation Take Root in the Arab Spring? 

In 2011, three brutal dictatorships were removed, two by unarmed civil resistance and one by NATO-assisted armed rebellion. Other civilian uprisings continue in the region, including civil unrest in a country lead by a beleaguered President whose promise to step down continues to be delayed. A bloody civil war continues to rage against another Arab despot. Four panelists, three of whom are from Arab states in a post or potentially pre-conflict period, will discuss their views on how mediation is a powerful instrument for strengthening the rule of law and for civil society peace-building. First, the status and potential of court-related mediation will be examined as rule of law tool in the region. Then, through the lens of three presenters, each of whom is an acknowledged leader of mediation in her respective country, the current and potential growth of mediation in three religiously diverse nations will be examined.

Lynn Cole, Mediators Beyond Boarders, International/Cole Academy for International Mediation Training, Tampa, FL
Alia Ismail, Alem & Associates, Beirut, Lebanon

Deniz Kite, L’accadémia Areté / Mediators Association in Turkey, Beyoğlu, Istanbul, Turkey
Orouba Qarain, Sharif Zubi Law Firm, Amman,  Jordan

Room: Capitol B

G9 How Counter “Spin” without Counter-spinning: Ways to Deal with Aggressive Advocates and Ill-Counseled Clients

Of late, advocates more consciously and aggressively try to use mediators to gain advantage over the other side.  There seems to be more puffing, posturing, outrageous offers, stonewalling, threatening, and playing the mediator than ever before. Lawyers have learned to bargain hard or just plain manipulate to “win” the negotiation. They ask that partisan proposals be presented as the mediator’s, bluff and bully to show toughness, and pry for confidential information while revealing none.  Some lawyers fail to counsel their clients on the legal realities, leaving that job to the mediator, while pretending this sow’s ear of a case is a silk purse. Through demonstration and/or video, this session will address how mediators can deal with the advocate’s tricks. We’ll examine ways to counter the spin without counter-spinning and tame unproductive tactics. Drawing upon recent research, we’ll also focus on how mediators can deliver bad news without alienating clients or lawyers or sacrificing neutrality. Interactive discussion will follow, focusing on complex practice and ethical issues.

Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH
Dwight Golann, Suffolk University Law School, Boston, MA  

Room: Congressional A

G10 Security on Steroids

This session will discuss a wide range of issues concerning the security of data held by your law firm or company or submitted by any party to an arbitration or mediation, a danger which has become much more complicated over the last several years:  (1) You have to secure confidential data on your firm’s network, at your home, in the cloud, on your smartphone, and on the road; (2) As data breaches proliferate, understanding the essentials of security is critical; (3) You will be shocked with real-life stories of data breaches (yes, in law firms too); and (4) You will learn how to build multiple redundant defenses to protect your data through technology, policies and training.

Sharon D. Nelson, Sensei Enterprises, Inc, Fairfax, VA

John Simek, Sensei Enterprises, Inc., Fairfax, VA  

Room: Regency D

G11 The Lawyer As a Conflict Manager

This presentation will demonstrate the immense practical value an understanding of interpersonal conflict management principles and skills have in the practice of law in working with other lawyers, colleagues, and clients.  In particular, this presentation will explore the role conflict escalation cycles and face-saving play when dealing with one’s counterparts in litigation. This presentation examines case studies involving organizations that have dramatically reduced legal costs, among other benefits, by abandoning a solely legalistic approach to conflict and embracing conflict management principles. This presentation will also address the role of interpersonal conflict skills in working with clients. In this program, the presenters will discuss how this course, based on transformative conflict management principles, equips attorneys for improved interaction with their clients  and a more effective representation experience.

Michael Colatrella Jr., University of the Pacific, McGeorge School of Law, Sacramento, CA
Jody Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY
Peter Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY

Series G: 2:30 PM – 3:45 PM

Room:  Capitol A

G1 The Future of Domestic and International Arbitration 

Is commercial arbitration in a death spiral from which it will not recover? Or has the crescendoing criticism of American style arbitration lead to institutional and individual arbitrator responses which are revitalizing arbitration for a bright, thriving and sustained future in the new millennium? Will arbitration continue along a path of arbi-litigation or has the vast propagation of cost conscious best practices protocols set the stage for arbitration to once again be praised as the most cost efficient direct route to a just resolution of a dispute. This panel of world renowned panel of experts, all of whom are position to profoundly shape the trajectory of public, government and professional perceptions, use and practice of arbitration domestically and internationally, will share their insights and prognostications of the future of domestic and international arbitration.

Lorraine M. Brennan, JAMS International, London, United Kingdom

Reginald Holmes, The Holmes Law Firm, Pasadena, CA
Eric P. Tuchmann, American Arbitration Association, New York, NY

Mike Williams, Michael A. Williams, LLC, Denver, CO

Room: Regency Foyer

G2 Lie Detection for Dispute Resolution: Lessons from Studies, Wizards, and the Fields

Previous sessions on the science of lie detection and emotional truthfulness have had packed crowds at past events. This new session builds on the past science but adds several important twists. First, it continues the use of science based materials on both aspects of lie detection and emotional awareness true in all cultures along with important cultural differences.  Second, it adds a second new speaker with unique experience: a former high level Secret Service agent with global experience in interviews and investigation. In addition, the new speaker is in the top 1/3 of one percent of those tested for lie detection - one of the "truth wizards" identified by leaders in the field. Third, this session continues the use of material from testimony and simulated negotiations, but it adds new material from actual mediations. Fourth, the session introduces new research  that suggests mindfulness and other types of meditation may improve lie detection abilities. The new session therefore addresses several audiences.  Those with no experience with lie detection or emotional awareness will get an introduction to the science.  Those with experience will learn both a new set of tools and perspectives and new examples.

Clark Freshman, University of California, Hastings College of Law, San Francisco, CA
Paul Kelly, Paul Ekman Group, San Francisco, CA 

Room: Columbia Foyer

G3 Getting Engaged:  Learning Conflict Theory and Practice through Kinesthetic Experience 

This session will feature work from the forthcoming ABA book Dancing at the Crossroads on physical/movement-based approaches for teaching conflict theory and practice. Kinesthetic or physical strategies foster awareness, flexibility and creativity. They shift negative perceptions and intractability. Because they tap a human universal --physical experience, these strategies are helpful in informing work across cultures.  Disputes always have physical dimensions, yet many approaches to intervention and pedagogy focus primarily on mental, analytic dynamics. When the body is understood as the site of disputing, neuroscientific findings directly inform intervention. For example, using movement-based language in intervention can be helpful because mirror-neurons build capacities for new behaviors even in observers. The session draws on seven years of research/practice exploration. Participants in the session will learn how mediators and negotiators from multiple countries and areas of practice have implemented a range of tools to enhance their teaching and practice. They will experience ways that physical/expressive approaches can deepen understandings of complex disputes, enhance third party effectiveness, and catalyze positive turning points. Four experienced legal educators/dialogue practitioners will give examples of how this work has deepened theoretical understandings of conflict and enhanced their practices.

Andrew Acland, Andrew Acland & Associates, Wotton-under-Edge, Gloucestershire, United Kingdom

Kenneth (Ken) Fox, Hamline University, St Paul, MN
Michelle LeBaron, University of British Columbia Faculty of Law, Vancouver, British Columbia Canada
Sharon Press, Hamline University--Dispute Resolution Institute, St Paul, MN

Andrea Schneider, Marquette University Law School, Milwaukee, WI

Room: Yosemite

G4 Developing a Global Online Dispute Resolution System: From eBay to the United Nations and Beyond

Today’s technology is enabling billions to people to interact with each other around the world. Just like the face-to-face world, disputes arise in these interactions, and they must be resolved in a low-cost, efficient manner. eBay and PayPal, for example, currently handle 60 million low-value, high-volume disputes each year, and each needs to be resolved quickly and fairly to enable continued growth in the marketplace.  In response to this need, the United Nations Commission on International Trade Law (UNCITRAL) has created a Working Group to develop recommendations for a fair, low-cost, cross-jurisdictional online dispute resolution (ODR) system for the resolution of disputes. This system has the potential to bring justice to many millions of online users who cannot get fair redress through currently available judicial channels because legal and court costs make the enforcement of such low-value, high-volume claims impractical. This new ODR system may also may serve as the foundation for other global redress systems, for matters ranging from privacy to intellectual property to even global peacemaking.

Jeffrey M. Aresty, Internetbar.org, Sudbury, MA

Colin Rule, Modria.com, San Jose, CA
Darin Thomson, British Columbia Public Service, British Columbia, Canada

Room: Bunker Hill

G5 Confidentiality and Disclosure Issues for ADR Neutrals in Technology Disputes 

The program will discuss different ethical issues that may arise during technology related arbitrations or mediations. Particular emphasis will be on on the level of disclosure required by the ADR professional. Topics will include conflicts of interest, technology related conflicts, confidentiality and obligations imposed by ADR provider organizations. In addition, issues under the ABA Model Rules, the ABA guidelines for mediators and the various court advisory committees will be addressed. Also, we will cover post ADR confidentility issues.

John Delehanty, Mintz, Levin, Cohn, Ferris, Glovsky, New York, NY

J William Frank, FrankADR, Racine, WI
Suzanne Nusbaum, Impartia, Los Gatos, CA
Sandra Sellers, Technology Mediation Services, LLC, McLean, VA

Room: Lexington

G6 Parenting Coordination:  Is This New ADR Process Meeting Its Goals? 

Parenting coordination is a relatively new hybrid ADR process that combines mediation, arbitration/decision-making, coaching, case management and parent education with the goal of helping high-conflict parents implement and clarify their parenting plans and court orders. The PC role can be an ethical and practice minefield for the unwary practitioner and also for the referring professional, such as a lawyer, mediator, and the court. Challenges include the reaction of a party who is on the “losing side” of a recommendation or decision, burnout of the professional who is assigned to the parents and is constantly being pulled by demanding, unreasonable people, and the problem of the PC being paid for his or her services. From the referring vantage point, there are difficulties in finding professionals who can remain neutral when faced with difficult personalities and have the skills to bring parties to agreement, but who can also make decisions when necessary within the legal framework of the role.  Four experienced ADR professionals, including a parenting coordinator, a referring mediator, a family court judge, and a court administrator, will discuss the challenging practice issues from their different perspectives and, in interaction with the participants, offer solutions and opinions on the role’s effectiveness.

Christine Coates, J.D., Christine A. Coates, JD, Dispute Resolution Professional, Boulder, CO
Linda Fieldstone, M.Ed., Family Court Services, 11th Judicial Circuit, Miami, FL
Hon. Denise Herman McColley, Henry County Family Court, Napoleon, OH
Zena Zumeta, J.D., Mediation Training & Consultation Institute, Ann Arbor, MI

Room: Congressional CD

G7 Effectively Using Mediators for Legal Settlements and Facilitators for Agreements on Public Policy:  Are There Practice Differences? 

It has always been a premise for many that mediation is a process that is applicable to a wide variety of situations and that a good mediator can serve parties successfully across a spectrum of disputes. As the practice of mediation is more fully integrated into the resolution of disputes and development of public policy agreements, parties are becoming ever more sophisticated in how they select and utilize ADR professionals. This panel will examine the evolution of two primary areas of ADR practice, mediating the negotiation of legal agreements and facilitating agreements on public policy, as it explores the reality of mediation practice. This session will describe how the mediation practices in these two contexts may differ, and how the outcomes, procedures, and qualifications for mediators may be similar or different.

David Batson, US Environmental Protection Agency, Senior ADR Specialist, Washington, DC

John Bickerman, Bickerman Dispute Resolution, Washington, DC

David Harder, Environment and Natural Resources Division, Department of Justice, Denver, CO

Suzanne Orenstein, Udall Foundation/US Institute for Environmental Conflict Resolution, Washington, DC
Deborah Osborne, Federal Energy Regulatory Commission, Washington, DC

Room: Concord

G8 Can Mediation Take Root in the Arab Spring? 

In 2011, three brutal dictatorships were removed, two by unarmed civil resistance and one by NATO-assisted armed rebellion. Other civilian uprisings continue in the region, including civil unrest in a country lead by a beleaguered President whose promise to step down continues to be delayed. A bloody civil war continues to rage against another Arab despot. Four panelists, three of whom are from Arab states in a post or potentially pre-conflict period, will discuss their views on how mediation is a powerful instrument for strengthening the rule of law and for civil society peace-building. First, the status and potential of court-related mediation will be examined as rule of law tool in the region. Then, through the lens of three presenters, each of whom is an acknowledged leader of mediation in her respective country, the current and potential growth of mediation in three religiously diverse nations will be examined.

Lynn Cole, Mediators Beyond Boarders, International/Cole Academy for International Mediation Training, Tampa, FL
Alia Ismail, Alem & Associates, Beirut, Lebanon

Deniz Kite, L’accadémia Areté / Mediators Association in Turkey, Beyoğlu, Istanbul, Turkey
Orouba Qarain, Sharif Zubi Law Firm, Amman,  Jordan

Room: Capitol B

G9 How Counter “Spin” without Counter-spinning: Ways to Deal with Aggressive Advocates and Ill-Counseled Clients

Of late, advocates more consciously and aggressively try to use mediators to gain advantage over the other side.  There seems to be more puffing, posturing, outrageous offers, stonewalling, threatening, and playing the mediator than ever before. Lawyers have learned to bargain hard or just plain manipulate to “win” the negotiation. They ask that partisan proposals be presented as the mediator’s, bluff and bully to show toughness, and pry for confidential information while revealing none.  Some lawyers fail to counsel their clients on the legal realities, leaving that job to the mediator, while pretending this sow’s ear of a case is a silk purse. Through demonstration and/or video, this session will address how mediators can deal with the advocate’s tricks. We’ll examine ways to counter the spin without counter-spinning and tame unproductive tactics. Drawing upon recent research, we’ll also focus on how mediators can deliver bad news without alienating clients or lawyers or sacrificing neutrality. Interactive discussion will follow, focusing on complex practice and ethical issues.

Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH
Dwight Golann, Suffolk University Law School, Boston, MA  

Room: Congressional A

G10 Security on Steroids

This session will discuss a wide range of issues concerning the security of data held by your law firm or company or submitted by any party to an arbitration or mediation, a danger which has become much more complicated over the last several years:  (1) You have to secure confidential data on your firm’s network, at your home, in the cloud, on your smartphone, and on the road; (2) As data breaches proliferate, understanding the essentials of security is critical; (3) You will be shocked with real-life stories of data breaches (yes, in law firms too); and (4) You will learn how to build multiple redundant defenses to protect your data through technology, policies and training.

Sharon D. Nelson, Sensei Enterprises, Inc, Fairfax, VA

John Simek, Sensei Enterprises, Inc., Fairfax, VA  

Room: Regency D

G11 The Lawyer As a Conflict Manager

This presentation will demonstrate the immense practical value an understanding of interpersonal conflict management principles and skills have in the practice of law in working with other lawyers, colleagues, and clients.  In particular, this presentation will explore the role conflict escalation cycles and face-saving play when dealing with one’s counterparts in litigation. This presentation examines case studies involving organizations that have dramatically reduced legal costs, among other benefits, by abandoning a solely legalistic approach to conflict and embracing conflict management principles. This presentation will also address the role of interpersonal conflict skills in working with clients. In this program, the presenters will discuss how this course, based on transformative conflict management principles, equips attorneys for improved interaction with their clients  and a more effective representation experience.

Michael Colatrella Jr., University of the Pacific, McGeorge School of Law, Sacramento, CA
Jody Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY
Peter Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY  

Series H: 4:00 PM – 5:15 PM

Room: Capitol A

H1 Damage Experts in Arbitration:  A Candid Discussion About the Value of Damage Experts from the Perspective of the Neutral, Advocate and Client

Expert analysis and testimony concerning quantum damages is used to varying degrees in domestic arbitration proceedings. In international arbitrations, the use of damage experts is beginning to become common place. This panel will explore how the international arbitration model incorporates damage experts as the norm and how that experience can benefit the domestic arbitration model. Not surprisingly, all parties involved in an arbitration have different views concerning the appropriateness and value of damage experts. The panel will also explore from the advocate, neutral and expert perspective a number of related issues including: the pros and cons of using quantum experts, useful tools for determining whether an expert is necessary and/or helpful, how to control costs, applicable laws and rules, the impact experts have on arbitral panels and the involvement of damage experts in helping to improve the reasoning of damage awards.

Brent C. Kaczmarek, CFA, Navigant Consulting, Inc., Washington, DC

Jean Kalicki, Arnold & Porter, Washington, DC

Paul Bennett Marrow, Attorney and Arbitrator, Chappaqua, NY
Elizabeth J. Shampnoi, Esq., Navigant Consulting, Inc., New York, NY

Room: Regency Foyer

H2 Strategies for Getting Lawyers to Negotiate and Mediate Sooner and Better 

The Section’s new Task Force for Early Dispute Resolution (EDR) will present its work to encourage lawyers to engage in negotiation and mediation at the earliest appropriate time. Too often, lawyers delay serious efforts to resolve disputes, often because they are trapped in a “prison of fear” about suggesting negotiation or mediation.  This program will describe why lawyers feel trapped even when they know that it would be in their clients’ interests to negotiate and that the case will probably settle eventually.  It will describe how they can break out of this prison, and it will provide materials to help interested lawyers, parties, and mediators do so. The program will describe early case assessment, a critical initial step, as well as efficient exchange of information, engagement of neutrals as appropriate, and other steps needed to enable productive negotiation. Panelists will describe their successful efforts to use EDR procedures. The program will present hypothetical situations and invite the audience to discuss ideas to use EDR. It will also invite audience members to describe real problems from their own experiences and brainstorm ideas to solve these problems.

Phillip Armstrong, retired Senior Counsel for ADR and Litigation, Georgia-Pacific LLC, Atlanta, GA

Joan Stearns Johnsen, Albany Law School, Albany, NY
John Lande, University of Missouri School of Law, Columbia, MO

Room: Bunker Hill

H3 Dispute Resolution Design 2.0 - A Systems Engineering Framework for ADR Processes in Complex Disputes

Globalisation is causing increasing numbers of cross-border disputes.  Families are more frequently multi-cultural as are large and small businesses. Call centers in one country take enquiries and complaints about a service provider in a different continent. Medical tourism sometimes goes wrong. This program will look at the resolution of disputes occurs across national borders and legal jurisdictions. Systems Engineering is a management technique which has been used in large complex engineering projects to improve the cost effectiveness, efficiency, risk and holistic nature of their construction and operation. Systems Engineering can also be applied to the design and conduct of interdisciplinary ADR processes for intercultural disputes. The Systems Engineering management framework is a means of dealing with complexity in a systematic, multidisciplinary way. At its heart it relies upon:  a concise consensual goal; identified  stakeholders; established roles, interests and issues of the stakeholders and their lines of communication; agreed requirements for the system to achieve its goal; documented less complex components of people processes and things collaborating  to achieve the system goal verified against requirements; combining components to achieve the goal.

Lorraine Lopich, Mediate Today, Sydney, New South Wales, Australia
Manon Schonewille, ACB Foundation, Toolkit Company, Amsterdam, Noord-Holland Netherlands

Ross Sydney, Mediate Today, Bruce, Australian Capital Territory, Australia 

Room: Regency D

H4 Reflective Practice Groups: An Opportunity to Increase Diversity and Enhance Practice

Mediators can improve the quality of their work by using peer supervision in small groups to reflect on their mediation experiences in order to distill lessons and create a developmental path to integrate those lessons. The ability to reflect on our experience and mistakes, to learn and to translate this learning into action is essential to a vital personal and professional life. As dispute resolvers, we are adept at theoretical, cognitive and skill-based learning, but we have not with equal commitment sought the tools of a reflective practice. Reflective practitioners gain awareness of their unique style and approach to mediation, along with nonjudgmental awareness of their inner world and insight into attitudes and beliefs they actually bring to participants in the mediation. Therapy is a common approach to awareness of our personal inner world. Reflective practice trains awareness of our professional inner world. Such groups also have the added advantage of creating opportunities for increasing the diversity of the ADR field by our inclusiveness in these groups and greater personal understanding of our differences. The presenters have been involved in such a group for almost a decade and will offer their ideas on how to form and sustain such groups.

Daniel Bowling, ADR Program, US District Court for Northern CA, San Francisco, CA
David Hoffman, Boston Law Collaborative, LLC, Boston, MA
Marvin Johnson, JAMS - the Resolution Experts, Silver Spring, MD
Homer La Rue, Howard University School of Law, Columbia, MD

Room: Congressional A

H5 Cross Cultural Mediation and Narrative Transformation in Israel's "Mixed Cities" 

Intractable conflicts are often fueled by cultural differences that cannot be addressed because of the competing histories anchoring those cultures. How can complex competing narratives be transformed?  A team of conflict professionals from George Mason University's Center for Narrative Studies, Gishurim (an Israeli organization that provides support and guidance for Community Mediation and Dialogue Centers CMDCs), Mediators Beyond Borders, and Neve Shalom Wahat Al Salaam (a 30-year-old Israeli peace village of 1/2 Jewish and 1/2 Arab families) is working on a project addressing this question. The team is helping CMDCs in Acre, Lod and Ramla (four Israeli "mixed cities" with high Arab and immigrant populations) to document the exciting cross cultural work they are doing and build their conflict engagement capabilities in a sustainable manner. In the workshop, team members will discuss the narrative trainings held in Israel and the on-going capacity building work with the individual CMDCs. Come participate in interactive demonstrations of cross cultural narrative techniques and have a lively discussion with attendees about the project and cross cultural lessons learned.

Mark Kleiman, Community Mediation Services, Inc, Jamaica, NY

Ran Kuttner, Ph.D., Werner Institute, Creighton University School of Law, Omaha, NE

Rachel Wohl, Mediation and Conflict Resolution Office, Annapolis, MD

Room: Lexington

H6 Family Mediation in the Court and Private Contexts: Is it an Interdisciplinary Practice? 

Since its inception in the mid-70’s, family mediation has been an interdisciplinary endeavor. Although mental health professionals and other non-attorneys were heavily involved in family mediation since its beginning, there has been an increasing dominance of lawyers in the private mediation arena. This session will explore the interdisciplinary beginnings and current trends of family mediation in the courts and in private practice. Panelists will discuss trends generally and in their respective states (Florida, Illinois, and Texas) and the underlying reasons for these trends. Changes in public and private family mediators’ styles will also be discussed.

James Alfini, South Texas College of Law, Houston, TX
Debra Berman, South Texas College of Law, Houston, TX

Mel Rubin, Mediation Services, Inc., Miami, FL

Bruce Wettman, Wettman Dispute Resolution, Houston, TX
Susan Yates, Resolutions Systems Institute, Chicago, IL

Room: Concord

H7 Discovery in Construction Arbitration: When is Enough, Enough? 

Arbitration was not supposed to be litigation in a private forum. Over time the conventions of traditional litigation have crept in, and some say discovery in arbitration is out of control. It doesn’t have to be that way. Our panel, consisting of three highly experienced construction counsel who are all also construction arbitrators, knows what works and what just adds excess time and cost.  Using a hypothetical and panel debate, they will demonstrate how to use the flexible nature of arbitration to get what you need and still control the costs.  Specifically, the panel will cover document production, requests for electronically stored information, interrogatories, depositions, site visits as well as the use of motions to further streamline the process. They will also address what makes a request or objection persuasive versus what arbitrators find to be less-than-helpful. By examining the balancing tests arbitrators use to make discovery decisions, attendees will gain knowledge about how to better structure their discovery plans. Finally, the panel will provide tips for practitioners making discovery arguments before a single, non-attorney arbitrator.

Michael Marra, American Arbitration Association, Philadelphia, PA

Christi Underwood, Christi L. Underwood PA, Winter Park, FL

Kenneth Walton, Donovan Hatem LLP, Boston, MA
Barbara Werther, Ober Kaler, Washington, DC

Room: Capitol B

H8 When They Want to Walk Out: How to Get Beyond the Recurring Impasses of Positional Bargaining in the Settlement of Litigation.

The  impasses of civil litigation are as numerous as they are predictable: the parties threaten to walk out, send the mediator back in to the other side's room to get a "realistic number", or make low/high ball proposals in retaliation for the other party's miniscule concession. 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 the mediation of civil litigation. This session will be a practical skills seminar about the mediation of positional bargaining using presentations, demonstrations, and interactive discussions with the audience.

Andy Little, Mediation, Inc., Chapel Hill, NC  

Room: Regency B

H9 Moving Beyond Traditional ADR Through the Use of Game Theory, Decision Theory, and Information Technology

This provocative presentation focuses on several new and highly innovative approaches to understanding, managing, and resolving conflict.  Particular attention is given to some simple game-theoretic systems that can be used to manage and resolve a wide variety of disputes and difficult negotiations, and that provide insight into some of the basic inefficiencies associated with traditional ADR. Consideration is also given to a system grounded in decision theory that uses interactive visualization and social production techniques to support coordinated deliberation among stakeholders in a decision. All of these various systems can be accessed online, creating opportunities as well as challenges for ADR practitioners and legal professionals. A diverse panel of experts considers the significance of these sorts of systems from an academic, legal, and information-technology perspective.

Steven J. Brams, New York University Department of Politics, New York, NY
Marc Lauritsen, Capstone Practice Systems, Harvard, MA

James F. Ring, Chu, Ring & Hazel LLP, Boston, MA  

Room: Columbia Foyer

H10 Herding Cats: Effective Strategies for Mediating Complex Issues Involving Multiple Insurers

In most disputes, each party has an interest and is either aligned with or against the other parties. But mediators face a special problem trying to reach a global settlement among a policyholder and multiple insurers in complex cases, including payment and issue-dependent realignment of party interests. On one issue, the policyholder may be against all insurers. But on the next issue, the primary and policyholder are the same side, against the umbrella and excess insurers, or policyholder and umbrella/excess insurer interests might align against the primary insurers.  And the number of issues to be resolved in a complex global settlement can be stifling. Using examples and hypotheticals, this distinguished and diverse panel will discuss strategies and tips for bringing all the players under a single tent despite their divergent and ever-changing interests, as well as litigator “wish lists” for effective mediation sessions.

Mary Craig Calkins, Jenner & Block, Los Angeles, CA
Ronald Kammer, Hinshaw & Culbertson LLP, Miami, FL
Diana Marshall, Marshall & Lewis LLP, Houston, TX
Hon. Enrique Romero, ADR Services, Inc., Los Angeles, CA
Jodi Spencer, Thacker Martinsek LPA, Cleveland, OH  

Series H: 4:00 PM – 5:15 PM

Room: Capitol A

H1 Damage Experts in Arbitration:  A Candid Discussion About the Value of Damage Experts from the Perspective of the Neutral, Advocate and Client

Expert analysis and testimony concerning quantum damages is used to varying degrees in domestic arbitration proceedings. In international arbitrations, the use of damage experts is beginning to become common place. This panel will explore how the international arbitration model incorporates damage experts as the norm and how that experience can benefit the domestic arbitration model. Not surprisingly, all parties involved in an arbitration have different views concerning the appropriateness and value of damage experts. The panel will also explore from the advocate, neutral and expert perspective a number of related issues including: the pros and cons of using quantum experts, useful tools for determining whether an expert is necessary and/or helpful, how to control costs, applicable laws and rules, the impact experts have on arbitral panels and the involvement of damage experts in helping to improve the reasoning of damage awards.

Brent C. Kaczmarek, CFA, Navigant Consulting, Inc., Washington, DC

Jean Kalicki, Arnold & Porter, Washington, DC

Paul Bennett Marrow, Attorney and Arbitrator, Chappaqua, NY
Elizabeth J. Shampnoi, Esq., Navigant Consulting, Inc., New York, NY

Room: Regency Foyer

H2 Strategies for Getting Lawyers to Negotiate and Mediate Sooner and Better 

The Section’s new Task Force for Early Dispute Resolution (EDR) will present its work to encourage lawyers to engage in negotiation and mediation at the earliest appropriate time. Too often, lawyers delay serious efforts to resolve disputes, often because they are trapped in a “prison of fear” about suggesting negotiation or mediation.  This program will describe why lawyers feel trapped even when they know that it would be in their clients’ interests to negotiate and that the case will probably settle eventually.  It will describe how they can break out of this prison, and it will provide materials to help interested lawyers, parties, and mediators do so. The program will describe early case assessment, a critical initial step, as well as efficient exchange of information, engagement of neutrals as appropriate, and other steps needed to enable productive negotiation. Panelists will describe their successful efforts to use EDR procedures. The program will present hypothetical situations and invite the audience to discuss ideas to use EDR. It will also invite audience members to describe real problems from their own experiences and brainstorm ideas to solve these problems.

Phillip Armstrong, retired Senior Counsel for ADR and Litigation, Georgia-Pacific LLC, Atlanta, GA

Joan Stearns Johnsen, Albany Law School, Albany, NY
John Lande, University of Missouri School of Law, Columbia, MO

Room: Bunker Hill

H3 Dispute Resolution Design 2.0 - A Systems Engineering Framework for ADR Processes in Complex Disputes

Globalisation is causing increasing numbers of cross-border disputes.  Families are more frequently multi-cultural as are large and small businesses. Call centers in one country take enquiries and complaints about a service provider in a different continent. Medical tourism sometimes goes wrong. This program will look at the resolution of disputes occurs across national borders and legal jurisdictions. Systems Engineering is a management technique which has been used in large complex engineering projects to improve the cost effectiveness, efficiency, risk and holistic nature of their construction and operation. Systems Engineering can also be applied to the design and conduct of interdisciplinary ADR processes for intercultural disputes. The Systems Engineering management framework is a means of dealing with complexity in a systematic, multidisciplinary way. At its heart it relies upon:  a concise consensual goal; identified  stakeholders; established roles, interests and issues of the stakeholders and their lines of communication; agreed requirements for the system to achieve its goal; documented less complex components of people processes and things collaborating  to achieve the system goal verified against requirements; combining components to achieve the goal.

Lorraine Lopich, Mediate Today, Sydney, New South Wales, Australia
Manon Schonewille, ACB Foundation, Toolkit Company, Amsterdam, Noord-Holland Netherlands

Ross Sydney, Mediate Today, Bruce, Australian Capital Territory, Australia 

Room: Regency D

H4 Reflective Practice Groups: An Opportunity to Increase Diversity and Enhance Practice

Mediators can improve the quality of their work by using peer supervision in small groups to reflect on their mediation experiences in order to distill lessons and create a developmental path to integrate those lessons. The ability to reflect on our experience and mistakes, to learn and to translate this learning into action is essential to a vital personal and professional life. As dispute resolvers, we are adept at theoretical, cognitive and skill-based learning, but we have not with equal commitment sought the tools of a reflective practice. Reflective practitioners gain awareness of their unique style and approach to mediation, along with nonjudgmental awareness of their inner world and insight into attitudes and beliefs they actually bring to participants in the mediation. Therapy is a common approach to awareness of our personal inner world. Reflective practice trains awareness of our professional inner world. Such groups also have the added advantage of creating opportunities for increasing the diversity of the ADR field by our inclusiveness in these groups and greater personal understanding of our differences. The presenters have been involved in such a group for almost a decade and will offer their ideas on how to form and sustain such groups.

Daniel Bowling, ADR Program, US District Court for Northern CA, San Francisco, CA
David Hoffman, Boston Law Collaborative, LLC, Boston, MA
Marvin Johnson, JAMS - the Resolution Experts, Silver Spring, MD
Homer La Rue, Howard University School of Law, Columbia, MD

Room: Congressional A

H5 Cross Cultural Mediation and Narrative Transformation in Israel's "Mixed Cities"

Intractable conflicts are often fueled by cultural differences that cannot be addressed because of the competing histories anchoring those cultures. How can complex competing narratives be transformed?  A team of conflict professionals from George Mason University's Center for Narrative Studies, Gishurim (an Israeli organization that provides support and guidance for Community Mediation and Dialogue Centers CMDCs), Mediators Beyond Borders, and Neve Shalom Wahat Al Salaam (a 30-year-old Israeli peace village of 1/2 Jewish and 1/2 Arab families) is working on a project addressing this question. The team is helping CMDCs in Acre, Lod and Ramla (four Israeli "mixed cities" with high Arab and immigrant populations) to document the exciting cross cultural work they are doing and build their conflict engagement capabilities in a sustainable manner. In the workshop, team members will discuss the narrative trainings held in Israel and the on-going capacity building work with the individual CMDCs. Come participate in interactive demonstrations of cross cultural narrative techniques and have a lively discussion with attendees about the project and cross cultural lessons learned.

Mark Kleiman, Community Mediation Services, Inc, Jamaica, NY

Ran Kuttner, Ph.D., Werner Institute, Creighton University School of Law, Omaha, NE

Rachel Wohl, Mediation and Conflict Resolution Office, Annapolis, MD 

Room: Lexington

H6 Family Mediation in the Court and Private Contexts: Is it an Interdisciplinary Practice?

Since its inception in the mid-70’s, family mediation has been an interdisciplinary endeavor. Although mental health professionals and other non-attorneys were heavily involved in family mediation since its beginning, there has been an increasing dominance of lawyers in the private mediation arena. This session will explore the interdisciplinary beginnings and current trends of family mediation in the courts and in private practice. Panelists will discuss trends generally and in their respective states (Florida, Illinois, and Texas) and the underlying reasons for these trends. Changes in public and private family mediators’ styles will also be discussed.

James Alfini, South Texas College of Law, Houston, TX
Debra Berman, South Texas College of Law, Houston, TX

Mel Rubin, Mediation Services, Inc., Miami, FL

Bruce Wettman, Wettman Dispute Resolution, Houston, TX
Susan Yates, Resolutions Systems Institute, Chicago, IL

Room: Concord

H7 Discovery in Construction Arbitration: When is Enough, Enough?

Arbitration was not supposed to be litigation in a private forum. Over time the conventions of traditional litigation have crept in, and some say discovery in arbitration is out of control. It doesn’t have to be that way. Our panel, consisting of three highly experienced construction counsel who are all also construction arbitrators, knows what works and what just adds excess time and cost.  Using a hypothetical and panel debate, they will demonstrate how to use the flexible nature of arbitration to get what you need and still control the costs.  Specifically, the panel will cover document production, requests for electronically stored information, interrogatories, depositions, site visits as well as the use of motions to further streamline the process. They will also address what makes a request or objection persuasive versus what arbitrators find to be less-than-helpful. By examining the balancing tests arbitrators use to make discovery decisions, attendees will gain knowledge about how to better structure their discovery plans. Finally, the panel will provide tips for practitioners making discovery arguments before a single, non-attorney arbitrator.

Michael Marra, American Arbitration Association, Philadelphia, PA

Christi Underwood, Christi L. Underwood PA, Winter Park, FL

Kenneth Walton, Donovan Hatem LLP, Boston, MA
Barbara Werther, Ober Kaler, Washington, DC

Room: Capitol B

H8 When They Want to Walk Out: How to Get Beyond the Recurring Impasses of Positional Bargaining in the Settlement of Litigation.

The  impasses of civil litigation are as numerous as they are predictable: the parties threaten to walk out, send the mediator back in to the other side's room to get a "realistic number", or make low/high ball proposals in retaliation for the other party's miniscule concession. 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 the mediation of civil litigation. This session will be a practical skills seminar about the mediation of positional bargaining using presentations, demonstrations, and interactive discussions with the audience.

Andy Little, Mediation, Inc., Chapel Hill, NC

Room: Regency B

H9 Moving Beyond Traditional ADR Through the Use of Game Theory, Decision Theory, and Information Technology

This provocative presentation focuses on several new and highly innovative approaches to understanding, managing, and resolving conflict.  Particular attention is given to some simple game-theoretic systems that can be used to manage and resolve a wide variety of disputes and difficult negotiations, and that provide insight into some of the basic inefficiencies associated with traditional ADR. Consideration is also given to a system grounded in decision theory that uses interactive visualization and social production techniques to support coordinated deliberation among stakeholders in a decision. All of these various systems can be accessed online, creating opportunities as well as challenges for ADR practitioners and legal professionals. A diverse panel of experts considers the significance of these sorts of systems from an academic, legal, and information-technology perspective.

Steven J. Brams, New York University Department of Politics, New York, NY
Marc Lauritsen, Capstone Practice Systems, Harvard, MA

James F. Ring, Chu, Ring & Hazel LLP, Boston, MA

Room: Columbia Foyer

H10 Herding Cats: Effective Strategies for Mediating Complex Issues Involving Multiple Insurers

In most disputes, each party has an interest and is either aligned with or against the other parties. But mediators face a special problem trying to reach a global settlement among a policyholder and multiple insurers in complex cases, including payment and issue-dependent realignment of party interests. On one issue, the policyholder may be against all insurers. But on the next issue, the primary and policyholder are the same side, against the umbrella and excess insurers, or policyholder and umbrella/excess insurer interests might align against the primary insurers.  And the number of issues to be resolved in a complex global settlement can be stifling. Using examples and hypotheticals, this distinguished and diverse panel will discuss strategies and tips for bringing all the players under a single tent despite their divergent and ever-changing interests, as well as litigator “wish lists” for effective mediation sessions.

Mary Craig Calkins, Jenner & Block, Los Angeles, CA
Ronald Kammer, Hinshaw & Culbertson LLP, Miami, FL
Diana Marshall, Marshall & Lewis LLP, Houston, TX
Hon. Enrique Romero, ADR Services, Inc., Los Angeles, CA
Jodi Spencer, Thacker Martinsek LPA, Cleveland, OH