ABA Section of Dispute Resolution Spring Conference
Poster Presentations
Thursday, April 19th
In conjunction with the Conference Welcome Reception
Programs Last Updated as of February 27, 2012
Truth, Tricks and Traps: the Language of International Arbitration Advocacy
This “poster presentation” is planned to provide a strong, provocative and intense discussion of advocacy in international dispute resolution. In particular, it will be designed to challenge the primarily English-speaking attendees to examine the advocacy adjustments and implications when they are dealing with languages other than English and/or pleading to arbitrators or examining witnesses whose native language is not English. This said, a number of comments and much discussion is likely to involve advocacy points that are not unique to international settings. This will serve to highlight one of the subthemes of the presentation: what advocacy techniques remain largely unchanged from the U.S. to the international setting, and what techniques should be moderated, altered or abandoned. The presentation will take off from principles or points listed on the “Poster” in order to illustrate, with the help of apposite annecdotes (“war stories”) practical points. The presenter's experience has shown that many participants are inherently interested in, and opinionated about, advocacy issues and curious about international arbitration. A successful presentation with significant interaction and repartee can be anticipated.
Nicolas Ulmer, Budin et Associés, Geneva, Switzerland
Beyond the Dichotomy of Styles- A Mediator's Cognitive Schema
Our research aims at improving researchers' and practitioners' understanding of the mediator's cognition. Cognition is a key factor determining the way experts handle their challenges and decisions. Going beyond the prevailing stylistic dichotomy which might conceal the diversity in mediation, we systematically examine the following: The challenges of a Schema of Mediator's Practice- SOMP (explicit & implicit); the tensions which emerge when a mediator's SOMP meets the complex conflict reality; and the way a mediator handles SOMP's challenges and tensions. Our data is composed of 22 mediators, most of them highly experienced. They mediated the same simulated conflict enacted by two female disputants. All sessions were observed, videotaped and then assessed through multiple measures from 3 viewpoints: the mediators, the disputants, and three independent observers. A special effort was made to capture the cognitive aspects of the mediators and compare them with their behaviors when they encounter reality. This research addresses existing gaps in mediation research including insufficient observational studies, the need to investigate the ways to accomplish mediators' and disputants' goals, poor understanding of the mediator’s cognitive approach and discrepancies found between what mediators say in self-report studies and what they actually do as revealed in observational studies.
Tzofnat Peleg- Baker, Psychology Department, Rutgers University, Highland Park, NJ
Resolving 21 Century Disputes
A newly released book (December, 2011) attributes many of the "irrational" and dysfunctional behaviors that generate and prolong disputes to the fact that our minds are seriously out of date. They evolved to resolve disputes among inhabitants of simple, stable, and homogeneous communities. The complex, diverse, and dynamic society we live in presents challenges for which our unconscious and conscious minds are ill prepared. We can overcome these challenges by learning how to recognize when our minds are steering us in the wrong direction and how to get ourselves back on track--and help others do the same. The writing is straight-forward and jargon-free. Key points are illustrated with practical examples and each chapter offers best practices relevant to any type of dispute. The target audience is lawyers, managers, and dispute resolution professionals.
Geoff Drucker, The American Health Lawyers Association, Washington, DC
The Embodied Brain in Peacemaking: It’s Not Just in Your Head
Neuroscience is a fascinating intellectual pursuit. There are hundreds of studies, reams of research to explore. But what are the practical applications? In this poster, we will share current neuroscience research for communication, social interactions, and conflict management. You will gain insight into the science of neuroplasticity, mirror neurons, mindfulness, emotional regulation, cognitive biases, and creative problem-solving as you stock your toolbox with brain-friendly conflict resolution strategies. This program will help you more effectively: - Communicate and think clearly under pressure. - Regulate emotions. - Overcome cognitive biases and improve decision-making. - Unleash the creative potential in conflicts and facilitate insights and breakthroughs. And we'll do all that in a fun way!
Gretchen Duhaime, Practicing on Purpose LLC, Amherst, MA
J. Kim Wright, Cutting Edge Law, Asheville, NC
Anastasia Pryanikova, E-Studio, LLC, Stamford, CT
Getting In at the Ground Level: New Opportunities for Neutrals in the Economical Litigation Agreement
This presentation will highlight the features of the Economical Litigation Agreement (“ELA”), particularly those which will require the services of a neutral. The ELA is an agreement voluntarily entered into between parties to a commercial contract. It has been dubbed the “Civil Litigation Prenup” since it sets forth the rules of engagement before a dispute arises in lieu of court rules of procedure. It is a protocol for pretrial discovery to avoid runaway costs and provides that disputes will be decided by a judge, not a jury. The focus will be on those parts of the ELA which require intervention by way of mediation and/or adjudication of discovery disputes by an “ELA arbitrator”. The ELA arbitrator has the authority to administer and enforce pretrial discovery procedures set forth in the ELA. This authority includes awarding damages and sanctions. The ELA is a groundbreaking document intended to reduce civil litigation costs, already endorsed and adopted by the International Institute of Conflict Prevention and Resolution for use by its members. The creator of the ELA, Daniel Winslow, assisted by Judge Nancy Holtz, will lead a discussion about the ELA and the opportunities it presents for neutrals.
Nancy Holtz, Trial Court of the Commonwealth of Massachusetts, Boston, MA
Daniel Winslow, Proskauer, Boston, MA
Competition Not Conflict: Understanding, Preventing and Resolving Conflict in Sports
Competition Not Conflict (CNC) is a program focused on understanding, preventing, and resolving destructive conflict in sports while promoting competition. CNC operates under the umbrella of the University of Oregon School of Law’s Appropriate Dispute Resolution Center. The ADR Center is home to a wide range of programs that focus upon a common goal: understanding and practicing proven methods to reduce destructive conflict and facilitate lasting results for individuals, communities, organizations, and nations. The Center houses a number of programs that engage students, scholars, and community members from around the world, and it consistently ranks among the nation’s top ten programs of its kind. This poster presentation will discuss sport as a unique context for conflict analysis and skills development. Sport--with its established rules and goals, clearly defined winners and losers, and ease of observation--provides a uniquely ripe context in which to research and document conflict, analyze its origins, develop dispute systems for its effective management, and impart valuable life skills for understanding, preventing, and resolving conflict both on and off the field. The presenttion will discuss applications and lessons learned working with groups of all ages and skill levels, from youth sports to professional athletics.
Joshua Gordon, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR
Jane Gordon, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR
Laura Johnson, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR
Medical Malpractice, Mediation and Moral Hazard: The Virtues of Dodging the Data Bank
Litigation is sometimes essential for achieving justice after adverse medical events. However, its admonition to "be more careful!" rarely improves quality of care. Although errors do involve personal slips, they commonly result from complex system-level failures requiring system-level fixes. Litigation chills the communication that is essential to learn what—really—happened, to amend systems and avoid future errors. Hospitals increasingly recognize that early dispute resolution can be faster, cheaper, fairer and far better suited to enhance quality. Unfortunately, physicians are largely left on the sidelines. Medical malpractice payments, even when small or unjustified, must be reported to the National Practitioner Data Bank where they become a permanent professional blemish. Weighing the high odds of winning if they defend in litigation, versus a guaranteed black mark if they settle early, physicians rarely participate in early mediation. After discussing the advantages of early mediation, this presentation explores a variety of ways in which physicians can lawfully avoid the Data Bank and thereby freely participate. The presenter will then address the "moral hazard" question, arguing that avoiding Data Bank medical malpractice reports is genuinely desirable, in part because the original justification for these reports has long since become archaic and their implementation has been chaotic.
Haavi Morreim, College of Medicine, Univ. of Tennessee Health Science Center, Cordova, Tennessee
A Process for Conflict Resolution and Management in the Healthcare Setting
The healthcare setting whether it be a hospital, clinic, or office is one in which good communications, effective relationships and strong teamwork are key. Development and implementation of an effective conflict resolution strategy can provide this for staff members, both direct caregivers and others. Training in conflict resolution techniques, strategic determination of goals and objectives and skills development are all important components. Additionally, utilizing the professional expertise of conflict resolution professionals both in the program development and in the actual process of dispute resolution are critical. Developing the skills necessary to maximize the success of a conflict management program in the healthcare setting will include building expertise in multi-party and complex mediations; possessing an ability to develop measurements for program success and and demonstrating an understanding of the relationships and power balances unique to the healthcare environment.
Elaine Dickhoner, The Conflict Management Group, Cincinnati, OH
Gridlock on (or off) the Grid
Here's your chance to create gridlock . . . then offer a solution: On one side of a provided "thought bubble" card, write a message that may cause gridlock. Identify whether you are posing as a party, advocate, expert witness, or mediator. Flip the card over and reply to or reframe that message with a new message that may help unlock the parties (again identify whether, this time, you are posing as a party, advocate, expert witness, or mediator). On the poster, decide where to pin your messages on (or off) the Riskin grid.
Margaret M. Huff, Margaret Huff Mediation, Nashville, TN
Using Software to Measure and Maximize Negotiation Learning
This poster will summarize the research conducted in collaboration with Thunderbird School of Global Management professor Karen Walch, PhD that found negotiation simulation planning and management software allows us to measure and significantly improve student negotiation behavior and demonstrate better results on their simulation exercises. Analysis of the outcomes from the same negotiation exercise conducted by 250 students in two global, graduate school programs, with and without simulation planning software, indicates that those with a higher software utilization rate: a) achieved up to 17.5% better results on their negotiation simulations, and b) improved the mutual gains for both parties by over 10%. These results show that using software to plan and manage the simulation exercises increases the likelihood that negotiators will plan more thoroughly and execute their plans more successfully in their negotiations. This leads to the conclusion that utilizing negotiation planning software in educational and professional environments is a best practice to ensure effective negotiation.
Marty Latz, ExpertNegotiator Planning & Management Software and Adjunct Prof, Arizona State University College of Law, Scottsdale, AZ
Rethinking Negotiation Teaching
This poster presentation, conducted by founding editors of the newly launched 谈判 Tán Pàn: The Chinese-English Journal on Negotiation (the first academic journal in mainland China dedicated to vigorous, interdisciplinary examination of the negotiation field in China), describes the results of the Rethinking Negotiation Teaching project, a major multi-year initiative to revamp the teaching of negotiation world-wide, particularly intensive “executive” courses. Since its inception in 2008, the project has brought together more than 60 of the world’s leading negotiation scholars and practitioners in a series of collaborative international conferences -- Rome (May 2008); Istanbul (October 2009); and Beijing (May 2011) -- to revise how we think about teaching negotiation both content and methods. Results to date, with financial support of the JAMS Foundation, include the newly launched Chinese negotiation journal, two books published by DRI Press at Hamline University School of Law (Rethinking Negotiation Teaching -- 2009; and Venturing Beyond the Classroom -- 2010), as well as a special issue section of Harvard's Negotiation Journal (April 2009). A third book is expected in early 2012.
James Coben, Hamline University School of Law, Saint Paul, MN
Christopher Honeyman, Convenor Conflict Management, Washington, D.C., District of Columbia
Necessary Games: The Evolution and Natural History of Negotiation
Games people commonly play in negotiations and in mediation, such as ultimatums, posturing, theatrics, positional bargaining, and deceptions, are typically thought to be largely unnecessary, disconcerting, and anachronistic throwbacks to more primitive styles of negotiation best cured by appeals to reason and logic. Game playing is taken as an affront to more “reasoned” modern approaches prevalently taught and practiced, but continues because they still serve an essential evolutionary purpose. Likewise, the modern “reasoned” approach to negotiation is being questioned in the wake of recent studies in neuroscience and cognitive psychology, with greater awareness of the “predictably irrational” factor that gives rise to game playing and is present in peoples’ decision making. This compels a critical review of the working assumptions of the sufficiency of the rational interest based models of negotiation. Understanding of the natural history of behaviors, rituals, strategies, techniques and skills that have evolved to manage conflict through the centuries is essential. This workshop will integrate theory and practice by proposing a conceptual frame for the understanding of that natural history and the strategic application of skills and techniques borrowed from each approach to enhance practice effectiveness in every dispute and issue context.
Robert D. Benjamin, Mediation & Conflict Management Svcs, Portland, OR
Using ADR for Discovery Practice in a Digital Age
Electronic discovery and judicial budget cuts are driving forces behind the need for litigants and courts to use ADR to resolve discovery disputes, particularly disputes involving "electronically stored information (ESI)." Mediators, special masters, arbitrators, discovery referees or liaisons who are trained and experienced in the law and technology involving ESI are referred to as "e-neutrals." This presentation is designed to introduce the concept of e-neutrals, the growing national trend to use e-neutrals and how to become an e-neutral. The benefits of becoming an e-neutral include an innovative method for expanding an ADR practice, enhancement of an existing ADR practice routinely addressing ESI issues, and/or developing a court program to offer these services. This cutting edge application of ADR promotes temporal and economic efficiencies for case management, which in turns, promotes access to justice.
Allison Skinner, Sirote & Permutt PC, Birmingham, Alabama
Peter Vogel, Gardere, Wynne & Sewell, Dallas, Texas
John DeGroote, John DeGroote Services, LLC, Dallas, Texas
Mediating via Skype
You can conduct a mediation session using Skype. Doing so provides several advantages: 1) cost savings with respect to travel; 2) the parties and counsel can remain in their respective offices, which is both familiar territory and allows them to conduct other productive work during caucuses (this point may be counter-intuitive, but is a significant plus); 3) eliminating any sense of "home court" advantage with respect to location; and 4) opening one's practice to a wider audience. This presentation is based on the presenter's experience using Skype to conduct a ten hour mediation session among four sites across the country.
Kendall Reed, Alternative Resolution Centers, Redondo Beach, California
America’s Peacemakers: Mediating Civil Rights Community Conflicts in the Current Economic Climate
Community Relations Service will present the Poster Presentation informing participants of the various services provided by the U.S. Department of Justice Community Relations Service ("CRS") to address tension associated with alleged discrimination and to prevent violent hate crimes. 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. This presentation would complement CRS' Main Conference Concurrent Session.
Kathleen O'Quinn, US Department of Justice, Community Relations Service, Washington, D.C.
A Look Back at Hurricane Katrina: Proposing A Radical New Role for Conflict Management Professionals: Crisis Management
Using Hurricane Katrina as a model, this speaker will discuss the phenomenology of disasters in America. Various systems can quickly become dysfunctional; the factors that impede effective emergency response can be forecast with relative certainty. My research identifies areas where things routinely break down. These areas/factors can be better managed when one person is placed in a role to oversee and manage the crisis phase of a disaster. A Conflict Management Professional, i.e., Ombuds can unify the ad hoc crisis management team and ensure its accountability and engagement. Therefore an Ombuds should be a mandatory participant with top officials during the crisis phase of a disaster for better coordinated emergency response. Provision of a structural solution of this nature would signify a needed commitment by our government to mitigate human misery in disasters. The various relevant functions and traits that an Ombuds is ideally suited to perform and that could stabilize the process will be outlined. Disasters produce distinct but predictable psychological barriers, and I analyze ways the Ombuds can counter act them. This model can be extrapolated for use in any large crisis. I suggest examples that have had a significant impact on large portions of the population.
Cynthia Mazur, Federal Emergency Management Agency/Dept Homeland Security, Washington, DC
