TRENDS IN ADR / Perspectives on Dispute Resolution

Vol. II / No. 4

Perspectives on Dispute Resolution—

Focus

APR 2012

Latest Trends in ADR

4

Does Winning in Sports Mean Losing in Dispute Resolution?

by Jeffrey Benz

Settlement Counsel: A New Trend in Litigation? 8

We Are the Champions - ADR Systems Design & Implementation in a Corporate Setting 10

Mediation Confidentiality Threatened: New Proposed Ammendment Might Create Exception to Confidentiality 14

The 2012 ICC Rule Changes: Efficiency and Flexibility 16

Law Updates on Arbitrability 20

Discover

On the Edge

Commentary 30

24

An Interview with Eric van Ginkel

28

Mediation Happens When You Least Expect It

The Zen-Resolution Revolution

Featured Contributors Also in this Issue

Jeff Benz

Scott Van Soye

Kristofer Michaud

Eric van Ginkel

Suzanne Nusbaum

Alec Wisner

ADR in the News 3 Upcoming Events 3 Message from the Editor 3

ADR Times explores mediation, arbitration, negotiation, diplomacy, and peace. ADRTimes.com publishes articles, news and debates,

and provides an industry directory, event calendar, job board, and community space for public and professionals to connect and share insights.

Mikita Weaver Editor-in-Chief

Zachary Ulrich Contributing Editor

Publisher Mark Fotohabadi & W. Timothy Pownall Design / Production Dana Asper, Melaina Rauen The content of this publication is subject to Copyright by ADR Times, Inc. 2011-12

Message from the Editor

Upcoming Events

Greetings!

- Inn of Court May 2012 Meeting Great Closing Arguments – Analyzing Some of the Most Effective Legal Arguments in American Jurisprudence Los Angeles, CA / May 2

In this issue, we are highlighting recent trends and the latest happenings in the world of alternative dispute resolution.

On the cusp of the 2012 summer Olympic games in London, sports arbitrator and former managing director and general counsel for the US Olympic Committee, Jeffrey Benz, shares his insights into the dispute resolution process in the world of sports. This issue also highlights the new changes to the ICC rules and recent trends in arbitration case law. Mediator Scott van Soye shares his thoughts on the rising use of settlement counsel to encourage early resolution, and Kristofer Michaud describes the design process of creating ADR systems in the corporate governance structure. Also included in this issue is a discussion of the proposed bill in California which might create an exception to the broad mediation protection afforded by the California Evidence Code, including the views of prominent Southern California mediators Phyllis G. Pollack and Joe Markowitz.

Also in this issue, ADR Times editor Zachary Ulrich sits down with Eric van Ginkel to discuss his journey from attorney to acclaimed international mediator and arbitrator.

Looking forward, the May issue will be featuring “ADR Stories” from practicing mediators and dispute resolution professionals including “favorite mediations” and/or relevant “war stories” or the like.

------------------------------------------------------------------For more information or to submit an article, please contact: Mikita Weaver / Editor-in-Chief (800) 616.1202 / editor@adrtimes.com www.ADRTimes.com z

- Divorce Mediation Institute: Moving Beyond the Basics Asheville, NC / May 18 - May 20

- ICC Institute Masterclass for Arbitrators Paris, France / June 4 - June 6

- 25th Annual Professional Skills Program Straus Institute for Dispute Resolution Malibu, CA / June 21 - June 23

View the full Calendar— Submit an Event—

ADR in the News - 4.20 Illinios Deals With Foreclosures With Unique Mediation Program

- 4.18 Mediation and Technology Gurus Offer Insights for legal professionals - 4.15 Egypt Attempts Syria Mediation

- 4.11 Ban Ki-moon Praises West African Mediation Efforts

- 4.6 Bloomberg Blasts NYC Arbitrations - 4.5 New Arbitration Rules on Outer Space Activities

- 4.5 SF Court Orders Mediation in Gun Show Dispute

- 4.2 Pupils Taught Mediation Skills Abroad

View All ADR News— Subscribe to ADR Daily Alerts—

Focus

Does Winning in Sports Mean Losing in Dispute Resolution?

by Jeffrey G. Benz

“

Serious sport has nothing to do with fair play. “I don’t know anything that builds the will to win It is bound up with hatred, jealousy, boastfulness, better than competitive sports.” disregard of all rules and sadistic pleasure in - Richard Nixon witnessing violence. In other words, it is war minus the shooting.”

- George Orwell

Mediation is frequently turned to once an action has been filed in court as the lesser of two evils: litigation with a handed-down verdict versus a mediated settlement where the parties are free to walk away from an unsatisfactory outcome.

During litigation, mediation is often part of a court order for ADR. But as a useful, regularly-used core device to resolve fundamental disputes, mediation is noticeably either absent

or singularly unsuccessful when it comes to resolving disputes arising in the sports arena, at least in the United States.

Witness the failure of mediation to resolve the recent labor strife in the NFL and NBA during 2011: The parties were ordered to attend mediation before various judges and President Obama’s appointed Federal Mediator, but those efforts

failed to resolve the disputes. Using shuttle diplomacy out- Why? I believe that it is cultural. side the usual channels, the parties resolved their disputes Unlike most other industries, sport has a central core tradion their own to reach resolutions under which each could tion of declaring winners and losers. In perhaps the most declare victory on their key issues. Doubtless, the various famous antithetical statement of competitiveness in English mediators involved would probably like to take credit for literature, the dodo in Alice in Wonderland exclaims, “Evthe eventual outcome, much like the person who works zeal- eryone has won and all must have prizes.” As the quotes I ously to open that tightly closed jar of peanut butter only to use to open this article make clear, sports is an inherently witness someone who later tries it succeed where they had comparative inquiry: how am I doing relative to someone failed. But the fact remains that neither of these high pro- else? It does not matter that a dispute may look a lot like a file cases were resolved using a third party neutral mediator. straight business dispute with risks for both sides in the event Straight negotiation was the order of the day, with the prospect of a win/lose distributive legal process being the fallback and driving force for resolution.

Unlike most other industries,

“

sport has a central core tradition of Similarly, if one looks at the main body for resolving Olympic sports disputes, declaring winners and losers.” the Court of Arbitration for Sport, it has a complete set of mediation rules that are almost never used. No one can point to a wide range of cases, or even a range of cases said in the of loss. Participants in the sporting endeavor are tasked daily plural, that were resolved using their mediation panel, even with being winners and avoiding being losers, and this transthough it includes such notables as Henry Kissinger (former lates to unnecessary transaction and organizational costs for US National Security Advisor and Secretary of State, Nobel the participants. You simply do not find athletes on the field Peace Prize winner, and power broker extraordinaire), Sepp of play seeking to find win-win solutions; they are looking Blatter (the head of the organization that runs the world’s to see who will be the winners. Period. To underscore this, most popular sport, soccer as we call it), a former ambassa- the sports psychology texts are replete with discussion of dor and member of the UN Security Council, a senior diplo- the “winner” mindset or mentality. Even Baron Pierre de mat with UNESCO, a member of the Kuwaiti Royal Family, Coubertin, founder of the modern Olympic movement, exJacques Rogge (President of the IOC), and distinguished law pressed it like this: professors and lawyers from around the globe. Despite all of “The importance of these Olympiads is not so much to this amassed gravitas and worldly experience as tribal elders win as to take part ... The important thing in life is not from broad walks of life, the mediation facility provided by the triumph but the struggle. The essential thing is not the Court of Arbitration for Sport risks atrophy from nonto have won but to have fought well.” use.

If you review the collective bargaining agreements of the major US professional sports, the concept of mediation is largely unmentioned—you find decisions that will be made by third parties or sometimes not so distant parties.

The same goes for the rules of the Olympic sports where nary do you find mention of mediation as a viable alternative to the head-to-head battle for a winner and a loser on any issue.

This stands in stark contrast to the accepted principles of commercial practice, lex mercatoria, and basic business relationships. The contracts that form those relationships often contain provisions directing the parties to mediation if they have a dispute before heading to arbitration or litigation. Of course, all litigants and their counsel in those cases assume or know that mediation will be a necessary part of the dispute process.

This formulation assumes that there is always a winner and a loser even if de Coubertin, the great post-Victorian advocate for the benefits of mass sports participation, wants us to believe there is something else to it as he attempts to console or convince the non-winner, however successfully.

This may be why arbitration is so widely used in sports. Arbitration is highly evaluative and distributive. Arbitrators declare winners and losers and make “awards” rather than facilitate creative “settlements.” In arbitration, like in speed skating, basketball, soccer, or track and field, there usually is a clear winner and a clear loser. And arbitration offers a single event, a field of play in the legal sense, on which disputing parties can compete in accordance with a defined set of rules and with clear metrics for success.

But imagine a non-profit sports governing body with an already over-taxed, lean executive team having to address

April 2012 | 5

board governance disputes between competing constituent interests or the amount of time that could be saved by resolving disciplinary complaints against athletes or others by not simply taking the party line or the hardcore rules line

the deep-seated reasons the dispute arose in the first place likely will still exist and give rise to further disputes, and expense. Mediation offers the prospect of solving issues like these at their core, once and for all.

There are some shining lights, however.

Since 1998, the US Olympic Committee, by Federal statute, has been required Sports is an inherently comparative inquiry: how to have on staff an Athlete Ombudsman whose statutory job description includes am I doing relative to someone else? ... Participants the obligation to assist in mediating disin the sporting endeavor are tasked daily with being putes involving athletes. But more needs winners and avoiding being losers ... You simply do not to be done, and more can be done. Sports find athletes on the field of play seeking to find win-win organizations should look at having an solutions; they are looking to see who will be the winners. ombudsperson on staff full time specific to their particular sport or league. Law schools can assist the sporting endeavor by offering students the chance to actively on punishment but by having a neutral third party explain resolve sports disputes while getting credits toward graduathe risks of continuing and bridging the trust, confidence, tion. And authors could help the entire industry by writing and evaluative problems that the parties too close to an is- about the process and their experiences. sue suffer from? Similarly, think about how most of our children participate in sports (this model of participation Nothing is more competitive than the dollars and sense is roughly similar throughout North America, Europe, and world of international business, yet every day companies Latin America), through local clubs and organizations often take their business disputes to mediators to try to resolve run by parents and volunteers, who hold a variety of views them less expensively and with more certainty and control on the proper ways things should be handled for the orga- over the process than is afforded parties in litigation or arbinization’s best interests, their own or their children’s best tration. It is high time the participants in the sports process interests, or a combination. An arbitral tribunal or the courts looked upon mediation as a viable way to resolve their own can always provide a final answer to these disputes, however highly competitive disputes and embrace mediation to make unsatisfactory to some or all of the participants; however, it unique to the industry. z

“

Jeff Benz

Jeff is a former world ranked athlete and served in senior legal and executive positions with various sports organizations including the United States Olympic Committee and the AVP Pro Beach Volleyball Tour, and he has promoted boxing professionally. Jeff is an arbitrator, mediator, and problem resolver with the Agency for Dispute Resolution, a leading ADR provider, based in Los Angeles. He serves as a member on various panels including, among others, the following organizations: American Arbitration Association, Hong Kong International Arbitration Center, Republic of China Arbitration Association, Beijing Arbitration Commission, London Court of International Arbitration, International Chamber of Commerce, and the Court of Arbitration for Sport. Jeff is also an adjunct professor of law at Pepperdine University. www.jeffreybenz.agencydr.com Read more articles by Jeff Benz at: www.adrtimes.com/articles/author/jeffbenz

6 | ADR Times Perspectives

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Settlement Counsel A New Trend in Litigation?

by Scott Van Soye

George nervously drummed his fingers on the desk. He was torn. On the one hand, he’d known this lawsuit ought to settle the moment Brad Givens retained him. The facts were weak, the law was unsettled, and Brad could make real money in partnership with the defendants, if they could stop shouting at each other.

But Brad was both rich and litigious. He liked his attorneys aggressive and bulldog stubborn. George had to act like a gladiator, or get fired. There was also a risk that seeking settlement now would project weakness to George’s opponents. He had a tough reputation and wanted to keep it that way. Finally, this case was worth a lot of money, but only if George worked the file; settle too soon, and his billable hours would suffer.

Litigation attorneys face a paradox. On one hand, they know that over 90% of their cases will settle, and that early settlement is generally better for their clients than the expense, risk, and pain of trial. But as George’s quandary shows, pushing for early settlement can negatively impact their reputations, their client’s opinion of them, and their bottom line. Further, in today’s deadline-driven litigation environment, finding time to properly address settlement may prove difficult when every minute seems absorbed by the demands of trial preparation.

One trend that can address these problems is the appointment of separate settlement counsel to work in conjunction with litigation attorneys. In April 2011, mediator Forrest “Woody” Mosten predicted that by 2030, settlement counsel would be the rule rather than the exception, and that law firms that failed to offer such services would be at a competitive disadvantage. [1]

By dividing advocacy and settlement functions, the settlement counsel model can eliminate the conflicts of interest exemplified above – the litigator’s financial and reputational interests would not tempt delay in settlement. There would also be no perception of weakness as a result of settlement efforts, since settlement counsel must by definition make

8 | ADR Times Perspectives

them. Though the idea seems somewhat alien to litigators who believe that they can negotiate on behalf of their clients, it is not without precedent. In the Collaborative Law model popular in family law, the parties focus exclusively on settlement, with counsel agreeing to withdraw from representation if negotiations fail, leaving litigation to other attorneys.

Further, in the British Commonwealth, settlement and other non-litigation functions are handled by solicitors, who oversee litigation specialists known as barristers. [2]

There are two models of the settlement counsel process. In the first, settlement is the initial stage, with counsel thoroughly exploring the possibilities, stepping back in favor of traditional litigators only when it becomes clear that resolution is not forthcoming. This model has the advantage of economy as there is no need to pay two lawyers at the same time. However, it ignores the reality that the litigation process generates incentives to settle – cost, inconvenience, invasion of privacy, anxiety, and so on. Cases often settle just as some significant stage in the case is reached, whether it is a motion for summary judgment, depositions, or trial.

To limit settlement efforts to the pre-litigation phase misses many settlement opportunities. A compromise is less likely early than after a certain amount of mutual pain has been inflicted.

In the second model of the process, settlement efforts and litigation move forward simultaneously. Settlement counsel and her litigation counterpart must work closely together. A reasonable settlement falls somewhere between the “worst alternative to a negotiated agreement” (WATNA) and the “best alternative to a negotiated agreement,” or BATNA. The WATNA can be many things – unemployment, bankruptcy, litigation, loss of a business, or foreclosure – but the BATNA is most often a “home run” in litigation. Knowing what has happened, what is planned, and what is likely to occur in court helps settlement counsel evaluate settlement alternatives, highlight risks, make persuasive proposals, and decide on appropriate timing. So having settlement counsel who has some litigation experience is highly desirable.

But settlement counsel isn’t just second to a litigator. He or she is an advocate for settlement. Litigation is naturally antagonistic and competitive. Aggression is expected, even prized in trial attorneys. At times, counsel develop antipathy toward one another. Such feelings could be a bar to settlement. [3] Pretrial posturing, rather than reasonable negotiation, is the order of the day.

Trial counsel will naturally see trial as the favored resolution. It’s what they know and what they do best –they will of course be confident of success. In fact, psychological studies have shown both that lawyers in general over-predict their chances of winning at trial, and that they evaluate available evidence to support their perspective. [4]

What this means is that trial counsel will often lobby for going to trial and discount the need for settlement. In contrast, settlement counsel will look at the same facts and see reasons and opportunities to settle a case, and advocate for that outcome. By having diverse opinions in the room, clients with separate settlement counsel reach decisions that take the full range of evidence and alternatives into account.

Working with the feedback of others improves the quality of our present and future decisions. [5]

In addition to understanding litigation and advocating for settlement, ideal settlement counsel is an ADR process expert. She is a sophisticated practitioner of negotiation, and knows, for example, that the pace and size of concessions can send important unspoken messages about how far the offering party is willing to go (a slow series of very small concessions generally signals the offeror is nearly at his final position). She negotiates mindfully, intentionally, as attentive to her surroundings as a professional poker player looking for the twitches or “tells” that signal her opponent is bluffing. She actively searches for opportunities to create value for all, knowing that mutual benefit is the best incentive to settle.

Scott Van Soye

As Don Philbin points out, ADR is no longer a one-sizefits-all proposition. [6] Beyond the big three -- negotiation, arbitration and mediation -- there are less prevalent but still useful techniques like early neutral evaluation, mini-trials, med-arb, and arb-med. Each process has its benefits, drawbacks, and costs. Each can be customized to fit the needs of the parties for cost, speed, self-determination, and so on.

Competent settlement counsel can explain these alternatives and advise on their use.

The main drawback of settlement counsel is the cost of a second professional. But this cost is only realized if the strategy is totally ineffective – if the case settles no more advantageously with separate counsel than without. To the extent that settlement counsel shortens the litigation process, increases recovery for plaintiffs (or decreases recovery for defendants), helps design a better resolution process, or even creates value, this cost is offset. So it seems likely that the use of settlement counsel is appropriate in more cases than it first appears, and should be considered routinely by those facing litigation. z

Focus

[1] Mosten, F. S., The Future of Collaborative Practice: A Vision for 2030, 49 FAMILY COURT REVIEW 282, 286 (2011).

[2] Coyne, W. F., The Case for Settlement Counsel, 14 OHIO ST. J. ON DISP. RESOL. 367, 367 (1999).

[3] Herr. D. F., Annotated Manual for Complex Litigation, section 13:13 (updated May 2011).

[4] Richard Birke and Craig Fox, Psychological Principles in Negotiating Civil Settlements, 4 HARV. NEG. L. R. 1 (1999).

[5] Klein, G. and Kahneman, D, Strategic decisions: When can you trust your gut? MCKINSEY QUARTERLY (2010).

[6] Philbin, D., Litigators Needed to Advise Transaction Lawyers on Litigation Prenups 56 THE ADVOCATES (TEXAS) 36, 47 (2011).

Scott Van Soye is a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721.

Website: www.scottvansoye.agencydr.com Read more articles by Scott Van Soye at: www.adrtimes.com/articles/author/scottvansoye

April 2012 | 9

We Are the Champions

Dispute Resolution Systems Design and Implementation in a Corporate Setting

by Kristofer S. Michaud

Increasingly, corporations recognize the value of a Program for managing workplace conflict that precludes litigation.

These systems are designed by trained ADR consultants retained by the company on a contract basis. In order to implement such a Program, there must first be broad “buyin” from all segments of labor and management. Design consultants must therefore identify stakeholders. For a typical company, these will include management, the union, human resources, accounting, marketing, the in-house and outside legal teams, and the Board of Directors. A permanent Ombudsperson with perceived neutrality will act as Program director after the consultants leave.

Assembling the Team

The first stage is assembling the team. Each stakeholder group appoints a “Champion” to join the team along with the Ombudsperson. Management requires stakeholder groups to give full support to their Champion, who will be trusted to be forthcoming with opinions (without threat of retaliation) and to devote time and energy to the needs assessment and Program development portions of the process.

Needs Assessment

At the second stage, needs assessment, Champions will meet daily for four weeks to review past and present conflicts and how they’re resolved under the current system, list the outcome of conflicts and their effects on the company, and estimate the monetary cost in terms of lost work or opportunities, legal fees, and settlement fees.

Guided by the consultants, Champions should brainstorm to determine the underlying structural problem, the desired outcome for each conflict type, what is preventing that outcome, and the criteria for determining Program success or failure.

Champions should prepare a general questionnaire (available on paper and online) and ask 10-20 members of their stakeholder group to complete it. The questionnaire should obtain stakeholders’ opinions about the company’s current system and what they would like to see in a future process. The consultants should have already obtained and pre-customized software for collecting and interpreting the data.

Content Generation

The third stage, content generation, takes about five weeks. The consultants spend the first week analyzing and interpreting the data gleaned from the questionnaire and Champions’ costs and problems assessment. The consultants should then take two weeks to prepare a report, including a budget and timeline, process structure and flow map, party responsibilities, core values (including non-retaliation, third-

party neutrality and confidentiality) and draft literature and legal forms (paper and digital) for facilitation, mediation, arbitration and evaluating the outcome of each stage. The final two weeks will be used to obtain stakeholder approval of the conditional plan – each Champion will be responsible for vetting the process plan with their group and reporting recommended changes. The design team will incorporate realistic changes, defend important elements, and resubmit the process plan for stakeholder approval.

Focus

The Board and management are given no priority in the vetting process – they are just as important as any other stakeholder body. If one stakeholder group is holding up approval and their Champion and the consultants can’t work out the problem, the consultants will schedule a meeting with all interested members of the stakeholder group and attempt to fix the problem.

The Pilot Program

To limit hesitation at this stage, all stakeholder groups should understand that the conditional Program plan will first be “rolled out” in a Pilot Program limited to two branches of the company. To ensure that the full range of conflicts are represented, the two branches should be chosen because they have a level of conflict which is representative of the company as a whole.

The Pilot Program should be “rolled out” for ninety days.

Members of the two branches chosen for the Pilot Program who want immediate relief during the Pilot Program must sign, as a condition of participation, contracts by which they agree to be bound by any voluntary agreements they enter into, or by the results of binding arbitration if the case reaches that level. If they are not prepared to be “guinea pigs” for the Pilot, they should withhold their grievance until the general rollout.

At the conclusion of every stage in the Pilot, participants will fill out a stage-specific survey to gauge their level of satisfaction with the process and the results. The data produced by the survey will be analyzed by the Ombudsperson and the consultants, who will also be present at every stage of the Pilot (including Mediation and Arbitration) as silent observers to ensure that it is running smoothly.

At the conclusion of the Pilot, the Ombudsperson and the consultants will compare notes and prepare a report for the Champions including areas of concern and recommendations for modifications. The Champions will review the report and make recommendations for changes before it is edited April 2012 | 11

and presented to stakeholders. Stakeholders will be asked to review the report and its recommended changes and communicate their opinions to their Champion. Champions will meet privately with the Ombudsperson and consultants and voice the concerns of their constituency. The committee will prepare a third draft of the report and recommendations and ask the stakeholders to vote on implementation.

If the vote passes, the consultants will leave, leaving implementation to the Ombudsperson. If the vote does not pass, the consultants may hold a meeting with each stakeholder group and attempt to address each group’s concerns in a fourth draft before leaving. If the Program plan does not pass at this point, it will be up to management

access: the employee books an appointment using the company intranet or a paper form, in which he or she states the grievance in one paragraph and lists no fewer than three possible solutions. The employee may elect to speak with his or her supervisor directly, or ask HR or the Ombudsperson to hear the employee’s story and intervene. In other words, it’s either a single meeting between the employee and his or her supervisor, or a series of meetings with the Ombudsperson or the HR representative acting as a go-between.

Regardless of the format, the employee and the supervisor should be allowed every opportunity to vent their emotions to each other or to the go-between. This practice conserves resources in the long run, while reducing workplace stress.

Regardless of the format, the employee and the supervisor should be allowed every opportunity to vent their emotions to each other or to the go-between. This practice conserves resources in the long run, while reducing workplace stress. The parties are instructed to focus on their interests, not their rights or their power ...

whether they want to make the necessary changes themselves or hire a new team of consultants to develop (or replace) the Program. From the time the Pilot is complete to the time the consultants leave will be between three and four weeks, depending on the number of drafts they are asked to prepare.

The Final Program

The Final Program usually consists of a general-purpose anonymous hotline (to be gradually phased out as employees lose their fear of reprisal) and four main stages: Open Door, Facilitation, Mediation, and Arbitration. The early, low-cost stages focus on interests while the later, higher-cost stages focus on rights and power. Participants will fill out an exit survey concerning satisfaction with the process and the outcome at the conclusion of all stages (including the hot line stage – by touch tone), with the data being inputted into the specialty software and analyzed by the consultants during the pilot Program and by the Ombudsperson thereafter.

Open Door will have multiple entry points for maximum

12 | ADR Times Perspectives

The parties are instructed to focus on their interests, not their rights or their power, during this stage. At the conclusion of Open Door, both sides will fill out a stage-specific survey related to their satisfaction with both process and result. The data is forwarded to the consultants (during the Pilot) or the Ombudsperson (after the rollout).

If the problem is solved to the employee’s satisfaction by the supervisor (either alone or in consultation with HR or the Ombudsperson), the process is complete. If not, it moves on to a Facilitated Negotiation between the parties affected (employee-employee or employee-management).

The Ombudsperson is the Facilitator, with the focus still on interests and not rights. During the Pilot, the Ombudsperson is shadowed by a consultant and they meet privately and analyze the outcome together.

Prior to commencement of Facilitated Negotiation, however, the Ombudsperson must determine if Open Door has been tried properly, and determine why it failed. If this stage was incorrectly or unfairly implemented, the Ombudsperson may counsel parties to “loop back” and try again, incorporating

recommended changes before returning to facilitated negotiation. Then, if the problem is resolved to their satisfaction, the process is completed. If not, the process moves on to an outside Mediator within 40 days from the day the employee files the appropriate paperwork with the Ombudsperson.

The mediator is a third-party neutral chosen by the employee from a list maintained by the employer. Half the costs of mediation are provided to the employee by the employer, so the employee may write a personal check to the mediator and appear to be paying half the bill, thus obviating any concerns about mediator neutrality. The other half is to be paid by the company directly. The employee is allowed to bring a lawyer if they wish, but must bear the cost themselves. The employer will agree not to bring a lawyer to the mediation unless the employee brings theirs, but reserves the right to consult with counsel and upper management regarding settlement parameters before mediation. The company representative must have settlement authority, as must the employee. Both parties and their attorneys must agree that the emphasis should be on interests. References to legal rights are permitted in order to predict outcomes at arbitration, but threats or references to power are strictly forbidden.

At the conclusion of mediation, the company’s representative and the employee fill out an exit survey. If a voluntary settlement is reached, the process is over. If a settlement is not reached, the participants may, if both sides approve, ask the mediator to give his or her reasoned opinion as to what the likely result of binding arbitration would be. The parties may then decide whether to extend the mediation for another hour at the company’s expense. If a voluntary settlement is reached, the process is over. If not, the parties “loop back” and have private meetings with the Ombudsperson to discuss the outcome and the perceived barriers to a settlement. The Ombudsperson will again attempt a facilitated negotiation.

Regardless of outcome, the parties fill out a stage-appropriate survey upon completion.

Kristofer Michaud

If mediation is unsuccessful, the Ombudsperson refers the matter to a third-party neutral arbitrator for mandatory binding arbitration. The arbitrator must be available within two months of the employee’s filing of the paperwork. Both parties must have legal representation for this stage, and the form (paper or intranet) will require the name of the employee’s chosen attorney. Provided he or she has followed the process exactly, company will pay the employee’s legal fees up to $2,000.

The arbitrator is chosen from an American Arbitration Association (AAA) list of retired Judges or professional neutrals. The names are struck off the list, one at a time, with each party alternating with the other until a final arbitrator remains. Half the costs of arbitration are provided to the employee by the employer, so the employee may write a personal check to the AAA and appear to be paying half the bill, thus obviating concerns of mediator neutrality. The other half is to be paid by the company directly.

Focus

Both sides understand that the arbitrator’s decision is final and binding, and will be determined with reference to the legal rights of each. Evidence, depositions, and witnesses may be used in accordance with the rule of the AAA. This is the final, most costly, and least interest-based stage in the Program and is to be used only as a last resort when all other lower-cost, interest-based vehicles have been exhausted.

Workplace conflict is inevitable. Acknowledging this simple truth by investing in a comprehensive Conflict Management Program, employers will conserve resources that would otherwise be squandered on litigation, and preserve control of the problem. More importantly, they will also maintain a positive PR climate and increase employee satisfaction and productivity. z

Kristofer is a practicing attorney, professional neutral, and writer on mediation and international law. He maintains a private practice in criminal and family law in upstate New York, while working toward his Masters in Dispute Resolution at Pepperdine School of Law in Malibu, California. Kristofer graduated from the B.C.L./LL.B combined program at the Law School of McGill University in Montreal, Canada.

Read more articles by Kristofer Michaud at: www.adrtimes.com/articles/author/kristofermichaud

April 2012 | 13

Mediation Confidentiality Threatened

New Proposed Amendment to California Evidence Code Might Create Exception to Mediation Confidentiality

by Mikita Weaver

Confidentiality has been a hot topic lately. Under existing hearing on the bill for April 17, 2012, but the committee postCalifornia law, when a person participates in mediation for the poned the hearing date. purpose of settling a civil dispute, anything said in the course Particularly, the bill would be amended as follows: of mediation or in the consultation for mediation services is not admissible in evidence in any other action SECTION 1. Section 1120 of the Evidence Code is amended to read: or proceeding. Last year, in Cassel Evidence Code § 1120. v. Superior Court (2011) 51 Cal. 4th (a) Evidence otherwise admissible or subject to discovery outside of a mediation 113, the Court was unwilling to make or a mediation consultation shall not be or become inadmissible or protected from an exception to the broad sweeping disclosure solely by reason of its introduction or use in a mediation or a mediation policy of confidentiality in mediation. consultation.

The California Supreme Court in Cas(b) This chapter does not limit any of the following: sel did not allow a party to introduce attorney-client communications which (1) The admissibility of an agreement to mediate a dispute. occurred during a mediation in support (2) The effect of an agreement not to take a default or an agreement to extend the time of the client’s potential claims against within which to act or refrain from acting in a pending civil action. his attorney for malpractice. Likewise, (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or in Provost v. Regents of the University was contacted about serving as a mediator in a dispute. of California (2011) 201 Cal. App. 4th (4) The admissibility in an action for legal malpractice, an action for breach of 1289, the court also refused to make fiduciary duty, or both, or in a State Bar disciplinary action, of communications directly an exception for allegations of duress between the client and his or her attorney during mediation if professional negligence or coercion. Both decisions said that or misconduct forms the basis of the client’s allegations against the attorney. amending the statute to allow the use of such evidence was solely up to the legislature.

This spring, assembly-member Wagner introduced California Assembly Bill AB 2025 to amend Section 1120 of the California Evidence Code to add a new exception to the general rule of inadmissibility. The bill as proposed provides the following: Communications between a client and his or her attorney during mediation are admissible in an action for legal malpractice or breach of fiduciary duty, or both, and in a State Bar disciplinary action, if the attorneys professional negligence or misconduct forms the basis of the clients allegations against the attorney. The Assembly Judiciary Committee had set the

14 | ADR Times Perspectives

The purpose of mediation is to create a “safe place” to allow parties to operate freely in the hopes of reaching a settlement without the shackles of judicial oversight. Nothing is on the record. The parties can talk freely with the mediator. The litigants can actually have a candid conversation. And based on the number of settlements reached in mediation, this atmosphere works! Mediation frequently leads to settlement. If this exception passes, there is certainly a fear that one exception to confidentiality will lead to other exceptions. Is it a slippery slope? It’s certainly up for debate! If you open up the broad

protection afforded mediation even just a little, there are legitimate concerns that the entire premise of mediation may be undermined.

One mediator, Phyllis G. Pollack, wonders if this bill will really solve the problem. Pollack cites Cassel and Provost as cases where the mediations got out of hand. In Cassel, the Plaintiff “accepted” the settlement agreement after 14 hours of mediation where the parties were inevitably tired and hungry and unable to consult with their family given the late hour. In Provost, the Plaintiff was threatened with criminal actions if he did not sign the settlement that night. Pollack states that the mediations in Cassel and Provost were “extreme” mediations under Standard VI “Quality of Process” of the Model Standards for Conduct for Mediators (ABA 2005). Under these model rules, a mediator must ensure the mediation process is procedurally fair and that the entire process is voluntary and uncoerced.

Pollack notes that the proposed amendment creating an exception to mediation confidentiality for fraud, duress, coercion, undue influence, and mistake may be the solution. However, Pollack also says the following: Perhaps the real solution lies with the mediators and how they conduct the mediation. While Standard I of the Model Rules does call for self-determination by the parties of both the process and the outcome, certainly the mediator does have some responsibility here; he/she should control the process to ensure that it is procedurally fair from start to finish. He/ she does have the responsibility to make sure that the parties have an opportunity to make informed choices, even if it means terminating the mediation to get a good night’s sleep ... I am not sure that [AB 2025] really solves the problem of what to do about mediations that have “gone off the rails.”

Perhaps the proponents of this bill need to take a fresh look at mediations as a whole and revise the proposal to address the “real” issues. Read more from Phyllis G. Pollack at: www. adrtimes.com/articles/2012/4/11/mediation-confidentialityrevisited.html

Mikita Weaver

Another Southern California mediator and practitioner, Joe Markowitz, also worries if AB 2025 will really solve the problem. Markowitz believes the source of the problem is the lack of enforceable standards in the mediation profession. He cites the following: At least in California, mediation has no governing body, weak professional associations, and no licensing or educational requirements other than those that may be enforced by various court panels. Mediation has evolving ideas of best practices, but still mainly relies on trust that the mediator will live up to them. Attorneys, by contrast, must abide by rules of professional conduct, and face discipline as well as malpractice claims, if they fail to do so. The exception to mediation confidentiality under discussion can be seen as a way to make sure attorneys adhere to those guidelines whether in a courtroom, or in a secret conference room. They should gain no cloak of immunity from professional standards when they usher their client to a mediation. Read more from Joe Markowitz at www.adrtimes.com/ articles/2012/4/12/confidentiality-exceptions.html

Focus

In reality, cases like Cassel tell us that there is a problem.

Whether or not this bill will solve that problem is unclear.

Markowitz and Pollack seem to think that the best way to maintain the public’s trust in the mediation process is to develop standards for mediators to ensure mediations are conducted fairly, as well as mechanisms to ensure adherence with the standards. Any ethical standards of conduct imposed on mediators must also be balanced with the importance of maintaining confidentiality in mediation. After all, the broad protection afforded in mediation is part of what makes mediation so successful. z

Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter APLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic.

Meet Mikita— www.adrtimes.com/editor-in-chief

The 2012 ICC Rule Changes Efficiency and Flexibility

by Eric van Ginkel and Jeff Dasteel

After over two years of study, the ICC Commission on Arbitration approved a revised set of rules for ICC Arbitrations. The revised rules include major changes for multiparty and multicontract arbitrations, emergency arbitration procedures, case management guidelines and appointment of the arbitrators.

The ICC is well known for its high quality, high cost, timeconsuming arbitration process, including its hallmark “scrutiny” of arbitration awards. ICC arbitrations also have been known in the past for their general lack of flexibility in dealing with third party claims and multiple contracts, lack of transparency in the arbitrator disqualification process, and inability to deal with emergency requests prior to the formal appointment of the arbitral tribunal. The revised arbitration rules attempt to keep those things that have made ICC arbitrations successful in the marketplace of international arbitration while attempting to fix those areas where ICC arbitrations have been properly criticized.

The long deliberative process to consider and adopt changes to the ICC Rules of Arbitration resulted in a well-considered set of rules that should solve some of the problems in the old rules without making fundamental changes to what the international

16 | ADR Times Perspectives

arbitration community has come to expect from ICC arbitrations. That is, while there is an increased push for efficiency, practitioners should expect to see the same high-quality arbitration process. Notwithstanding the push for more efficiency, practitioners should not expect to see a fundamentally speedier or less expensive process in the near future. This is not because the rule changes do not foster greater efficiency; rather, it is because it will take a while for tribunals and practitioners to create a new “normal.” The tribunals’ ability to penalize inefficiency when allocating costs should help overcome the existing inertia.

The rationale for the disqualification decisions of the ICC Court will remain secret and the formation of tribunals will likely remain a relatively slow process, albeit with some of the worst kinks ironed out. Unless otherwise agreed, the emergency arbitration procedures will be available only where the arbitration agreement was entered into after January 1, and the award scrutiny process will continue to delay delivery of arbitration awards to the parties (though making the final product of higher quality). That being said, the revised rules do provide increased flexibility that makes them competitive with other international arbitration rules sets.

Focus

1. The New Emergency Arbitrator Rules

One of the most important innovations in the new ICC Rules of Arbitration is the provision for Emergency Arbitrators in new Article 29. The 1998 ICC Rules did not contain a provision that afforded a party the opportunity to seek emergency relief in arbitration. The only way to obtain such relief was through the court system (See Article 23(2) old; Article 28(2) new).

Of course, it was always possible to obtain conservatory and interim measures, first pursuant to the inherent powers of the ICC Arbitrator, and since 1998 pursuant to Article 23(1) of the 1998 Rules, once the arbitral tribunal had been constituted.

This provision has been preserved unchanged, renumbered as Article 28(1). However, it is customary for it to take months to constitute an ICC arbitral tribunal.

The significance of new Article 29 is that it is now possible to obtain “urgent interim or conservatory measures” from an Emergency Arbitrator before the arbitral tribunal has been constituted. Article 29 basically follows similar procedures under the rules of such institutions as the Stockholm Chamber of Commerce, the Singapore International Arbitration Centre, and the Netherlands Arbitration Institute.

The procedure for seeking “Emergency Measures” is set forth in Article 29 and Appendix V. Article 29(1) defines Emergency Measures as “urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal.” For example, the claimant may need a preliminary injunction to prevent a respondent from doing something or to require it to do something to maintain the status quo under the agreement.

Appendix V provides that a party seeking Emergency Measures file a detailed application with the ICC Secretariat.

The application must be filed before the file is transmitted to the arbitral tribunal in accordance with Article 16 of the New Rules. On the other hand, the application may be filed even before the claimant has filed a Request for Arbitration. But a party must file the Request for Arbitration within 10 days of the application for Emergency Measures If and to the extent that the President of the ICC Court decides that the application meets the requirements of Art. 29(5) and (6), he appoints an emergency arbitrator, usually within 2 days. The Secretariat sends a copy of the application to the responding party.

April 2012 | 17

Normally, the Emergency Arbitrator has 15 days to issue an order. Although Article 29(2) provides that the parties “undertake to comply with any order made by the emergency arbitrator,” the order is not an award, unlike for example the comparable provisions of the NAI Rules, which provide that the emergency arbitrator issues an award. As a result, there are potential enforceability issues under the New York Convention. In practice, this may not be a serious shortcoming, as it is generally not recommended that a party disobeys an order issued by an arbitrator, as the tribunal once constituted may be expected to look unfavorably on such a default.

contracts on a construction project, there could be multiple arbitrations arising out of the same set of facts involving the project owner, the prime contractor and various subcontractors leading to possibly inconsistent results from different arbitral tribunals.

It has been noted that the new ICC Rules do not import the requirements of Article 17F of the UNCITRAL Model Law, which require the applicant on a continuing basis to make full disclosure of all circumstances likely to be relevant to the request for urgent relief, as well as to disclose any material change in such circumstances.

3. A More Efficient and Cost-Effective Process

Generally, the combined administrative and arbitrator fee for an application for Emergency Measures is $40,000 irrespective of the amount of the claim, so that a party should not take the decision to file such an application lightly.

It is important to note that, unlike the rest of the New Rules, Article 29 and Appendix V apply only to arbitrations commenced under an arbitration agreement entered into after January 1, 2012. Additionally, such arbitration agreement must not include the application of another pre-arbitral procedure relating to interim measures. Finally, the parties may expressly agree to opt out of the Emergency Measures provisions.

It is prudent to not opt out of the Emergency Measures provisions, in spite of the high cost associated with the procedure. As interim relief procedures remain available from any national court under Article 28(2), the ICC Emergency Measures procedure can function as a back up, - for example when interim relief is not available from a specific jurisdiction, or when the applicant doubts the neutrality of the court in that jurisdiction.

2. Multiple Parties, Multiple Contracts and Consolidation

Under the 1998 ICC Rules of Arbitration, absent the agreement of the parties, it was difficult, if not impossible, to deal with the relatively common situation where there are multiple parties, multiple contracts, and multiple claims arising out of the same set of facts even when the various parties are bound to nearly identical arbitration agreements. The 1998 ICC Rules simply had no provisions that could be used to consolidate related claims or to bring in third parties in a cross-claim. Even when arbitration agreements were nearly identical and the disputes arose out of the same set of operative facts, the ICC Rules did not provide for consolidation of the claims. For example, when dealing with a chain of 18 | ADR Times Perspectives

The 2012 ICC Rules of Arbitration have removed the procedural impediments to dealing with multiple parties, multiple contracts, and consolidation of claims. Articles 6 through 10 comprise the procedural innovations that permit ICC arbitrations among multiple parties involving multiple claims to be conducted efficiently. For a comprehensive overview of additional changes to the ICC Rules, read more at www. adrtimes.com/articles/2012/4/22/the-2012-icc-rule-changes-efficiency-and-flexibility.html.

New Article 22 (Conduct of the Proceedings) encourages the parties and the arbitral tribunal to conduct proceedings in an efficient and expeditious manner. It works with Article 24 (Case Management), Appendix IV (Case Management Techniques) and the tribunal’s ability to allocate costs based on the parties’ conduct to change the culture of ICC arbitrations to make them more efficient and less time consuming.

The changes made in the 2012 Rules that deal with case management and the procedural timetable, reflect both the experience of the thirteen years that have passed since the adoption of the 1998 Rules and the sense of urgency to make international commercial arbitration a more cost-effective and efficient process. As a result, the 2012 Rules now place upon the arbitral tribunal and the parties the express duty to use their best efforts to conduct the arbitration process in an expeditious and cost-effective manner (Article 22(1)).

Other changes focusing on a more efficient, cost effective process include the following:

(a) Consistent with existing practice, Article 3(2) now makes explicit reference to the use of email by the Secretariat and the arbitral tribunals in connection with notifications or communications to the parties. References to facsimile transmissions, telex and telegram were deleted. (b) Articles 4(3) and 5(5) require claimant and respondent to include more information in their respective Request for Arbitration and any counterclaim submitted with the Answer. For example, they now need to include the (legal) basis for the claim or counterclaim. In addition, rather than requiring “to the extent possible, an indication of any amount(s) claimed” (Article 4(3)(c) 1998 Rules), Article 4(3)(d) of the 2012 Rules now requires that the Request for Arbitration specify “the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims.”

(c) Article 6(3) allows a party to make objections to the existence, validity or scope of the arbitration agreement to be referred directly to the arbitral tribunal rather than first to the ICC Court as the 1998 Rules provided. This should result in a significant timesaving.

(d) Consistent with standard ICC practice, Article 24(1) provides explicitly that arbitral tribunals convene as soon as possible after drawing up the Terms of Reference a case management conference to consult the parties on procedural measures in accordance with Article 22(2) to ensure effective case management. Article 24(3) encourages the tribunal to hold further case management conferences and adopt further procedural measures or to modify the procedural timetable in order to ensure continued effective case management. (e) Article 27 reworded the language dealing with the closing of the proceedings of Article 22 of the 1998 Rules, by emphasizing that the tribunal shall declare the proceedings closed as soon as possible after the last hearing or the filing of the last submissions. Article 27 also deleted the reference to the “approximate” date as well as any postponement of the date, by which the tribunal expects to submit its draft award to the Court for approval.

An addition no doubt welcomed by the parties and their counsel is that the tribunal’s notification as to when it expects to submit its draft award to the Court is to be made not only to the Secretariat, but also to the parties.

(f) New Article 37(5) is an important addition to consideration of allocation of costs. In the past, the general rule has been that costs follow the event so that the loser generally pays. Because arbitral tribunals have the general authority to allocate costs among the parties, some tribunals considered how the proceedings were conducted by the parties in addition to who won or lost the merits of the dispute. New Article 37(5) makes explicit that the arbitral tribunal may consider in the allocation of costs how efficiently each party conducted the proceedings:

Eric van Ginkel

In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.

This provision adds teeth to the other provisions of the ICC Rules discussed in this Section that are intended to increase the efficiency and lower the cost of arbitration. (g) Article 2(2) of Appendix III was reworded so that the Court when setting the fees of the arbitrators, shall take into consideration not only the diligence of the arbitrators and the time spent, but also their “efficiency” and the “timeliness of the submission of the draft award”.

Focus

4. Other Rule Changes

In addition to the major rule changes discussed above, there were minor changes, explanations and clarifications made to most of the other rules. z For a comprehensive overview of additional changes to the ICC Rules, Read more at www.adrtimes.com/articles/2012/4/22/ the-2012-icc-rule-changes-efficiency-and-flexibility.html Find more Scholarly Articles at www.adrtimes.com/articles/category/scholarly-articles

Disclaimer: The opinions expressed in this paper are those of the authors alone and do not represent the views of the ICC Court, the ICC Commission on Arbitration or the ICC Secretariat.

Eric van Ginkel is an international arbitrator and mediator, and an Adjunct Professor of Law in Dispute Resolution at the Straus Institute of Pepperdine University Law School. In addition to intellectual property matters, he handles a large variety of matters, including complex business and commercial real estate disputes. Eric was the co-editor of the IBA Mediation Newsletter until December of 2010. He serves as arbitrator and/or mediator for several US and international dispute resolution institutions. www.ericvanginkel.agencydr.com Read more articles by Eric van Ginkel at: www.adrtimes.com/ericvanginkel

April 2012 | 19

Law Updates on Arbitrability

by Suzanne Nusbaum

The federal courts frequently make decisions on arbitration, particularly issues relating to arbitrability. Outlined below, are a few relevant decisions from the first few months of 2012 discussing various aspects of arbitrability: COMPUCREDIT CORP. v. GREENWOOD, 132 S.Ct. 65 (2012) (1/10/12) Credit Repair Organizations Act (CROA), 15 U. S. C. §1679 et seq., does not preclude enforcement of an arbitration agreement.

PEABODY HOLDING COMPANY, LLC v. UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION, No. 10-2134 (4th Circuit 2012) (1/11/12) Those who wish to let an arbitrator decide which issues are arbitrable need only state that ‘all disputes concerning the arbitrability of particular disputes under this contract are hereby committed to arbitration,’ or words to that clear effect. Agreement lacked the requisite “clear and unmistakable” language evincing an intent to arbitrate arbitrability, so court, not arbitrator determined arbitrability. Arbitrability disputes often necessitate a two-step inquiry.

First, the court determines who decides whether a particular dispute is arbitrable: the arbitrator or the court. Sec¬ond, if the

20 | ADR Times Perspectives

court concludes that it is the proper forum in which to adjudicate arbitrability, the court then decides whether the dispute is, in fact, arbitrable. When interpreting a contract containing an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assur¬ance that the arbitration clause is not susceptible of an inter¬pretation that covers the asserted dispute.

TOWNSEND v. PINNACLE ENTERTAINMENT, INC., No. 11-1711 (3rd Circuit 2012) (not precedential) (1/11/12) Employment contract provided that: “This agreement to arbitrate shall survive the expiration of this Agreement and shall cover all issues relevant to the employment of the Executive by Company.” Original written employment contract expired and employee was terminated before a new written agreement (which contained a similar arbitration clause) was signed. Court held that the agreement to arbitrate the employment dispute was valid at the time of the termination, without regard to which employment agreement, if any, was otherwise in effect.

Focus

DITTENHAFER v. CITIGROUP, No. 10-16909 (9th Cir. 2012) (not for publication) (1/15/12) The district court properly compelled arbitration of Dittenhafer’s claims under the Federal Arbitration Act (the “FAA”) and California law because the arbitration policy in defendant’s employee handbook covered Dittenhafer’s statutory employment discrimination claims and was not substantively unconscionable.

GORDON v. BRANCH BANKING AND TRUST, No. 09-15399 (11th Cir. 2012) (1/31/12) Case remanded for reconsideration in light of AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), which held that the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., preempted California’s state law rule “classifying most collective-arbitration waivers in consumer contracts as unconscionable.”

SALEEMI v. GOSH ENTERPRISES, INC., No. 11-35027 (9th Cir. 2012) (not for publication) (2/3/12) The presumption that dispute resolution provisions survive termination of a contract is rebuttable. Email said that the franchise agreement was “fully terminated” and that “no contractual obligations exist anymore.” Case remanded to determine the import of the email.

The pleadings need not be accepted as true, and facts outside the pleadings properly may be considered.

HEINEN v. NORTHROP GRUMMAN CORPORATION, No. 10-3408 (7th Cir. 2012) (2/7/12) Heinen accepted an offer of employment that was contingent on his agreement to Northrop’s “Dispute Resolution Process.” He signed a document accepting that process. He also apparently signed an employment contract, which is not in the record. There was a third contract, captioned “Supplementary Employee Relocation Agreement.” The “Dispute Resolution Process” provides for arbitration of employment-related disputes; the employment and relocation agreements do not contain separate arbitration clauses. The “Dispute Resolution Process” requires arbitration of “[a]ny employment-related claim against the company.”

Relocation benefits are “employment-related”. The “Dispute Resolution Process” covers disputes about relocation benefits.

SOLYMAR INVESTMENTS, LTD., ET AL. v. BANCO SANTANDER S.A., No. 11-12515 (11th Cir. 2012) (2/28/12) A district court, having found that a valid contract containing an arbitration clause exists, is not required to consider a fur-

April 2012 | 21

ther challenge to that contract’s place within a broader, unexecuted agreement. Courts are the proper forum to evaluate a challenge to the validity of an arbitration clause, but where the entire agreement of which an arbitration clause is but a part is challenged, such evaluation is properly left to the arbitrator.

Challenges to the validity of an agreement containing an arbitration clause are reserved for an arbitrator. Issues concerning contract formation are generally reserved for the courts to decide. The court will engage in a two-step process to determine arbitrability: 1) resolution of any formation challenge to the contract containing the arbitration clause; and 2) determination of whether any subsequent challenges are to the entire agreement or to the arbitration clause specifically. Where the Agreement, both through its integration clause and through its lack of reference to other contracts, facially contained the entire agreement between the parties notwithstanding contentions to the contrary, the district court properly refused to consider parol testimony on considering the nature of the Agreement. Prima Paint requires reference to an arbitrator for a general challenge to a contract on the grounds of fraud in the inducement.

ARBITRABILITY: ILLUSORY ARBITRATION AGREEMENT EEC, INC. v. BAKER HUGHES OILFIELD OPERATIONS, INC., No. 11-6121 (10th Circuit 2012) (1/3/12) Performance constituted acceptance of the contracts that included an arbitration provisions. The arbitration clauses were not illusory. Both arbitration clauses contained virtually identical language providing for a broad scope of arbitration and a limitation on amendment. The requirement that both parties agree to any amendment was sufficient to avoid rendering the parties’ agreements to arbitrate illusory. The differences in the arbitration clauses do not render them unenforceable. Motion to compel arbitration granted.

CAREY v. 24 HOUR FITNESS, USA, INC., No. 10-20845 (5th Cir. 2012) (1/25/12) The binding arbitration provision relied upon by 24 Hour Fitness is illusory because 24 Hour Fitness “retain[ed] the unilateral right to modify or terminate the arbitration provision” at any time. Employer had the right to unilaterally change the Employee handbook, which provided for arbitration. Under Texas law, an arbitration clause is illusory

Suzanne Nusbaum

if one party can “avoid its promise to arbitrate by amending the provision or terminating it altogether.” Notice and acceptance are not sufficient to render an arbitration provision nonillusory.

ARBITRABILITY: SCOPE OF THE ARBITRATION CLAUSE; PROCEDURAL UNCONSCIONABILITY GORE v. ALLTEL COMMUNICATIONS, LLC, No. 11-2089 (7th Circuit 2012) (1/19/12) The parties entered into two agreements—though only one contains an arbitration clause, and the plaintiff brings a cause of action based, at least in part, on conduct contrary to the agreement that does not have the arbitration clause. The issue was whether the clause itself is broad enough to encompass the dispute. The arbitration clause in this case provides that “[a]ny dispute arising out of this agreement or relating to the services and equipment must be settled by arbitration.” “Service(s)” means “any services [Gore has] asked [Alltel] to provide [Gore] through this agreement”; and “Equipment” refers to “any communication equipment or accessories [Gore] purchase[s] or lease[s] from [Alltel] or use[s] in any manner in connection with [Gore’s] Services.”

The language is unambiguous: any dispute “arising out of” the Alltel Agreement or “relating to the services and equipment” that Gore asked for under that agreement must be arbitrated.

“Arising out of” reaches all disputes having their origin or genesis in the contract, whether or not they implicate interpretation or performance of the contract per se. The Arbitrator must decide if the agreement is unconscionable because Gore attacks as unconscionable the entire Alltel Agreement, not just the arbitration clause itself. Claims of fraud in the inducement of the contract generally must be decided by the arbitrator.

ARBITRABILITY: CLASS ACTION WAIVERS IN RE AMERICAN EXPRESS MERCHANTS LITIGATION, No. 06-1871-cv (2d Cir. 2012) (2/1/12) A class-action arbitration waiver clause is not enforceable where the plaintiffs are able to demonstrate that the practical effect of enforcement would be to preclude their ability to vindicate their federal statutory rights. This arbitration clause is unenforceable. We remand to the district court with the instruction to deny the defendant’s motion to compel arbitration. z

Suzanne K. Nusbaum brings 25 years of dispute resolution experience to her fulltime neutral ADR practice. A Fellow of the Chartered Institute of Arbitrators and a former judge, she has specialized expertise in resolving employment, entertainment, health care, and intellectual property disputes. She also serves on various ADR panels and volunteers internationally to teach students basic dispute resolution skills. www.suzannenusbaum.agencydr.com Read more articles by Suzanne Nusbaum at: www.adrtimes.com/suzannenusbaum

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April 2012 | 23

DISCOVER

Q&A

An Interview with International Arbitrator & Mediator Eric van Ginkel

by Zach Ulrich

Our ADR Times Contributing Editor, Zach Ulrich, had the opportunity to sit down with expert international mediator and arbitrator Eric van Ginkel, and discuss topics including the role of culture and language in international disputes, differences between international and intranational conflicts, and Mr. van Ginkel’s career as a neutral. A consummate commercial attorney, mediator, and arbitrator, Mr. van Ginkel has a 40-year-plus career in corporate, entertainment, and law firm environments. He is a skilled negotiator with extensive experience in arbitration and litigation management, and in negotiating complex international business transactions, distributorships and licensing, commercial real estate, financial transactions, and biotech co-development deals. Mr. van Ginkel’s expertise in intellectual property law includes a specialty in high-tech cases. He is fluent in English, Dutch, French, and German. Below is a transcript of the interview.

Eric, thank you for joining us today. You have dedicated your life to helping clients resolve disputes.

How do you see your role as a dispute resolver?

I am at a stage in my life that I want to be of maximum service. As a peacemaker, or dispute resolver as you call it, I can truly make a difference in the lives of the parties involved in a dispute with integrity and sensitivity - especially as a mediator, but also as a fair and neutral arbitrator.

What are your top priorities as you approach a conflict resolution process? How are your priorities different as an arbitrator versus as a mediator?

I must leave my ego at home. I strongly believe that 24 | ADR Times Perspectives

mediation is an intuitive, spiritual process. I meditate before I mediate, so that I am in touch with my intuitive self. From that place, I know which steps to take on a moment-by-moment basis. When I leave my ego at home, I can be a better listener because I don’t have to worry about selfish things such as how I look or sound. I can be completely focused on what happens around me.

In both mediation and arbitration, I try first of all to establish a peaceful and optimistic climate that encourages the parties to feel at ease and to believe in a right outcome.

In both mediation and arbitration my top priority is to be a good listener and to let the people know they have been heard.

Obviously, in an arbitration hearing my role is more passive, as I allow the attorneys to present their cases. But I will not shy away from asking witnesses and experts questions that I feel will help me understand the factual and legal details of the dispute. In mediations, it is an interplay of “active listening” and asking questions.

Are there any kinds of disputes you’ve found tend to be handled more effectively in mediation versus arbitration?

All disputes benefit from mediation and other attempts at early settlement. Who would not prefer to put the emotional and financial burdens behind them, so they can go back to focusing on making money and being creative in business and in their personal life? Therefore, I always encourage the parties in an arbitration to seek mediation, preferably not by me, for the obvious reason that I may know too much by mediating in the event the matter does

not settle. On the other hand, I can conduct settlement conferences with both parties in the room at all times, which at times leads to a satisfactory result.

You have acted as a sole arbitrator for the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), and on more than 60 other cases for the American Arbitration Association.

Does any single case stand out in your mind?

Of course, each case has its own characteristics. Just as is true for cases pending before the courts, relatively few arbitrations go to a full evidentiary hearing and an award.

One of the cases that stands out is an arbitration I did for the ICC as sole arbitrator between a manufacturer of computer hardware in one country and its distributor in another. The case was governed by the laws of the country where the distributor had its office. There were extensive briefings on several legal issues that were challenging for the attorneys on each side, and both supported their arguments by having experts testify who were known scholars in the laws relevant to distributorships and termination. The matter required an extraordinary amount of work. I held two evidentiary hearings and issued a wide range of procedural orders. I requested briefing on additional legal issues that I found had not been sufficiently addressed, and issued a partial award and a final award totaling more than 120 pages.

This arbitration stands out because of how much I learned from it and the enormous amount of experience I gained by doing it. I must also say that I was fortunate that this was an ICC arbitration, as the administrators in Paris are

all lawyers experienced in arbitration, and they helped me along the way by answering procedural questions that came up and by providing a sounding board whenever I needed one.

You have spent much of your professional life working as a lawyer on international cases. But since 2006, you have focused predominantly on dispute resolution, serving as a mediator and arbitrator. What motivated your shift in your career path? Do you have a “favorite” role – attorney, mediator, or arbitrator?

I had the privilege of working for an international law firm that has an important ADR practice group. Among other cases, this gave me the chance to serve as counsel in a substantial ICC international arbitration, which took several years from beginning to end. That experience encouraged me to become a neutral. I called the American Arbitration Association and asked what I needed to do to become an arbitrator. Their answer was clear: Go to the Straus Institute for Dispute Resolution at Pepperdine Law School, and get a degree there. I discussed the idea with several friends who thought I had the right temperament to be both an excellent arbitrator and mediator. So I took the challenge and went to the Straus Institute. I obtained an LL.M. degree in Dispute Resolution in 2003, the very first year that it was possible to obtain that degree at Pepperdine.

I love my job as a neutral, both as mediator and as arbitrator. I sincerely believe that everything I did and learned has contributed to my career as a neutral, helping me to be the best mediator and arbitrator that I can be.

My understanding of, and sensitivity to cross-cultural

April 2012 | 25

problems, my dual education in both civil and common law, my knowledge of languages, my broad experience as a practicing attorney, both as a negotiator of transactions and as a litigator, and my schooling and teaching at the Straus Institute have all contributed to honing my skills. Today I believe I am a good listener and know how to ask the right questions. This serves me well both as an arbitrator and as a mediator, even though those skills are literally at opposite ends of the spectrum of dispute resolution.

From your experience, have you encountered distinctions between domestic and international arbitration?

Eric van Ginkel is an international arbitrator and mediator, and an Adjunct Professor of Law in Dispute Resolution at the Straus Institute of Pepperdine University Law School.

In addition to intellectual property matters, he handles a large variety of matters, including complex business and commercial real estate disputes. Eric was the co-editor of the IBA Mediation Newsletter until December of 2010. He serves as arbitrator and/or mediator for several US and international dispute resolution institutions. www.ericvanginkel.agencydr.com

Yes, international arbitration differs from domestic arbitration because besides applying to international agreements it involves different rules and practices. It requires arbitration clauses that are different from domestic ones, as they naturally need to be clear on the language the arbitration is going to be conducted in and where the arbitration is going to be held, among other specifiers. In addition, one might say that the community of arbitrators and attorneys specializing in international arbitration differs from the ones who practice domestic arbitration, although there is of course a substantial overlap consisting of people such as I who sit as an arbitrator in both domestic and international cases.

There are also arbitral institutions that specialize in international arbitration. Among the oldest and largest is the International Chamber of Commerce headquartered in Paris. In addition, international arbitrations are administered by such organizations as the International Center for Dispute Resolution (ICDR, a branch of the American Arbitration Association), the London Court of International Arbitration and the Singapore International Arbitration Centre, just to name the most prominent of these institutions. Ad hoc arbitrations are less common, but they are most often subject to the UNCITRAL Arbitration Rules.

Nowadays, the Rules on the Taking of Evidence in International Commercial Arbitration promulgated by the International Bar Association and revised in 2010 play an ever-increasing role. The IBA Rules form a voluntary system for limited discovery and the hearing of witnesses and experts in international arbitration, artfully blending the rules prevailing in most civil and common law systems relating to the taking of evidence.

Last but not least is the 1958 New York Convention, ratified by more than 140 countries, which provides for

26 | ADR Times Perspectives

the recognition and enforceability of foreign arbitration agreements as well as foreign arbitral awards in all these countries, subject to limited exceptions. The Convention provides for a simple procedure that ensures that a foreign award for all practical purposes obtains the status of a domestic judgment.

Of course, none of these elements are present in domestic arbitration.

You are fluent in several languages, including English, Dutch, French, German, and you are proficient in Italian. How does your cultural background and your fluency play a role in your ADR practice?

I have found that an international background can be of enormous help in understanding and being sensitive to cultural differences among the parties. This is of vital importance both in mediation and in arbitration, and both in international and domestic dispute resolution. It is not so much that you need to know the cultural differences.

Instead, you have to develop a sensitivity towards them.

I am of the opinion that no one can fully know what makes one people different from another. Of course, the studies that have been done in this regard, including the pivotal study by Geert Hofstede as published in the bestselling book, Culture’s Consequences, have done great service to the field of international social sciences and social psychology. But not even Hofstede pretends to understand all cultural differences, and concedes that his categorizations are really just generalizations.

Consequently, they [cultural generalizations] are of little use in a practical situation. This is not to say that it doesn’t make a difference to know differences. But we also need to be aware that these general observations made in social studies change over time, vary from place to place and vary even among members of the same tribe.

Knowledge of one or more languages certainly helps, especially of course when one speaks, reads and/or writes the language of the persons present in the dispute resolution room. For instance, many Dutch, Belgian and German clients have shared their gratitude that they would be able to share something with me outside the room in their own language, as they had to conduct the negotiations in English, which was of course not their native tongue. Similarly, it has helped me in caucus in a difficult mediation to share a word of empathy in a person’s own language. As you well know, it makes an enormous

difference for a party to know that the neutral has heard them. If you can share that in a person’s own language, it becomes even more meaningful. In arbitration it has been useful as well. I have been able to conduct evidentiary hearings in two sometimes three languages, which for very similar reasons helps me to connect with the witness or expert in more relevant ways. Of course, the use of a foreign language in a hearing requires prior approval by all parties present.

Discover

You have practiced in a variety of fields, including complex international business transactions, distributorships and licensing, commercial real estate, financial transactions, and biotech co-development arrangements. Do you have a topic-area that you find particularly enjoyable?

In both arbitration and mediation I enjoy the challenge of a complex dispute, no matter what area of law it is. If it were simple, they would not need the expertise of a neutral.

Most of the time, an arbitration will not run its full course unless the legal issues are so close that both sides are convinced there is a good chance they will win. If one side expects to lose, the case usually settles. I like close cases because they challenge me to find the legally correct and fair outcome.

Similarly, in mediation I welcome the challenge of a complicated dispute, whether legally or factually or both. In addition, I don’t shy away from finding out the emotional aspects of the dispute and exploring the real needs and interests of each party. I am aware that even for a corporate officer (as opposed to an individual person) the emotional burden of a dispute can be substantial, and when I sense this is the case, I will share my empathy with that person.

The most enjoyable cases are those where I can really make a difference by helping the parties find a creative solution to their dispute they had not previously thought of.

Thank you for your time, Eric.

It was a pleasure.

April 2012 | 27

On the Edge

Mediation Happens When You Least Expect It

by Alec Wisner

Because many of you reading this newsletter are professionals in the ADR field, professionals who utilize ADR, and/or people who have a personal interest in mediation, it becomes habitual to think of mediation as a process by which a trained professional sits down with two disputing parties, typically in the framework of litigation, a divorce, or some sort of legal-based conflict, and tries to move the two sides to resolution without recourse to the lengthy, expensive, and often anguishing process of litigation.

I propose that mediation is a far more basic process than that.

The simplest level of mediation lies within ourselves. Each of us has our own competing interests. For a high

28 | ADR Times Perspectives

school student, for example, the conflict may be between getting homework done comfortably ahead of a deadline or going partying with friends. For an adult, it could be between staying up late working on that project or spending quality time with your spouse and kids.

Each of these interests creates its own baggage. “What will happen to my grade if I wait until the last minute?”

“Will my friends think I’m a geek if I don’t go out with them?” Will my job be in jeopardy if I don’t produce the goods?” “What kind of parent and spouse doesn’t give undivided attention to his/her family?” And each of these conflicts requires a mediation within one’s self in order to move forward.

Nobody said that taking a step forward is always automatic.

Even on this simple level of mediation within one’s self, there is often a need for an external mediator. Sometimes that mediator takes the form of a parent, a spouse, a clergyman, a coworker, a therapist, or one of countless other people whom one is willing to confide in and listen to. And, of course, these problems haven’t a thing to do with a court of law or any other public forum. They have to do with sorting out our own values and applying them to the simple day-to-day decisions that we all have to make.

Sometimes we seek help in groups.

There are spiritual groups, 12-step groups, and all kinds of other groups

that people join in order to discuss things of mutual interest with other people. This is also a form of mediated discussion in which each person operates under clearly understood rules of conduct. And, again, each person is free to take any advice offered and apply it to his or her own internal conflicts.

So you see, mediation and conflict resolution can be a far broader topic than just the mediation of divorces and litigated cases.

Also available at www. wisnerdisputeresolution.com/blog/ Main/Mediation-Happens-When-YouLeast-Expect-It z

Alec Wisner formed Wisner Dispute Resolution Services in 2003 and has been using his unique and diverse background to assist hundreds of clients successfully resolve their disputes.

Thoroughly trained in all aspects of mediation, especially in the areas of divorce and family mediation as well as commercial mediation, Alec provides both an understanding of the underlying issues and an ability to facilitate positive communication.

Have an article, story, comment, or topic suggestion you would like to share with ADR Times?

Email editor@adrtimes.com or contribute online at: www.adrtimes.com/contribute

April 2012 | 29

Commentary

The Zen-Resolution Revolution What Companies (and Families) Can Learn

from

Mindfulness

by Zachary Ulrich

E

ver have one of those moments where you were just so frustrated that you couldn’t think straight?

Where all you could think about was the problem or source of your anxiety or anger? Where you couldn’t stop thinking about it – milling about it – no matter how hard you tried? Of course you have, and if you haven’t then congratulations because you’re either a Zen master or you’ve had a very serene life, indeed!

Well, those moments are one end of the psychoemotional spectrum, and some psychologists would argue that the other end of the spectrum is when you are truly “mindful,” or completely at peace both internally and with the world around you. One of the newest waves of psychological research and practice involves this concept of “mindfulness,” and how it affects everything in our lives from relationships to bodily health. More practically for professional dispute resolution professionals, learning basic mindfulness techniques can help us guide parties through tense situations, and can help us be more receptive to and instinctually aware of the dynamics surrounding us as we work.

Mindfulness is the idea of being fully “present” in a

30 | ADR Times Perspectives

moment – being able to calmly and lucidly focus on the stimuli around us, to fully “take in” moments as they occur, and to be able to train our brains to perceive and process situations more fluidly. Based originally on many Eastern traditions of meditation, the concept has evolved into highly organized programs for stress reduction, even the treatment of disorders such as bipolar disorder, obsessivecompulsive disorder, and ADHD, among others. Many clinical psychologists currently use mindfulness techniques to help patients more ably cope with stressful life-situations and problems. In fact, neuroscientists have found that the brains of individuals who regularly practice mindfulness refocusing techniques actually gain tissue mass in the areas of the brain responsible for our abilities to relate to others and feel empathy. Study participants have even found that practicing mindfulness techniques have revolutionized clients’ personal relationships, helped them become more assertive, and helped them become more “in tune” with the day-to-day experience of their everyday lives.

Sounds overtly Buddhist, doesn’t it? In many ways, it is. But think about this – study participants’ brains literally transform to help them relate to others, to become more empathetic . . .

lives and are constantly surrounded by numerous stimuli competing for their attention, both internal and external. In our “developed” world, working professionals are valued for their ability to multitask while loaded with caffeine to avoid the “inefficiencies” of their circadian rhythms. By the time we get home, our spouses and children require mental and emotional faculties of a completely different sort, and then there’s daily errands, chores, bills, the list goes on. It’s no wonder that by the time most people actually sit down on their couches they are exhausted.

It’s also no wonder that people often communicate poorly both at work and at home. With all of the mental and emotional energy required to live with even a basic work-life balance, there’s no energy left for being receptive to subtle communication cues from others. There’s no energy left for being patient. There’s no energy left for being open to suggestions or for being considerate of others’ needs. It’s no wonder that people often get into conflicts – our own society trains us to focus on only ourselves and only our needs.

relationships are revolutionized, and individuals become more assertive about their interests and expectations. I don’t know about you, but this sounds like a recipe for potential benefit as we help clients learn how to deal with conflict on a daily basis.

One of the central tenants of mindfulness is being able to purposefully pay attention to one particular thing at a time, without hesitation. This is harder than you may think. Have you ever laid awake at night and not been able to control your racing thoughts? Yeah, I thought so. Or, have you ever tried to sit quietly in a room, void of any distractions, and clear your mind for more than thirty seconds? If you haven’t, try it some time. If you’re an average person you will quickly find it almost impossible to “quiet” the fleeting thoughts that inevitably flow through your mind. I call it my mental “conveyor belt” of ideas. It is this ability to quiet our thoughts and thus become more fully aware of the nuances in our minds and bodies that can help us become more receptive to the thoughts and feelings of others – whether they be coworkers or our loved ones.

But our lives are rarely quiet, unless we purposefully seek solitude. Most people rush through almost every day of their

Is this to say that no one has the ability to balance the demands of daily living and still have gas in the mentalemotional tank for others? Of course not. Most of us are taught at a young age to treat others politely no matter our mental state, and most professionals are at least pretty good at interpersonal communication most of the time. The key words here are “most of the time.” It’s those “other times” when communications fail, when conflicts develop, and when those conflicts cost corporations millions of dollars and families unnecessary stress. Fortunately, in many conflicts some basic “mindfulness” tools can help both conflict resolution professionals and parties work together to not only resolve the conflict, but also to prevent conflicts in the future.

For instance, mindfulness breathing and relaxation training is designed to help us clear our minds while listening, and thereby increases our ability to absorb and process the environment around us. For conflict resolution professionals, this means being able to wholly focus on all of the communication we perceive throughout the mediation process – whether it is a verbal indication from a client that they are willing to offer $325,000, a non-verbal cue from the lawyer that indicates we might need to step out of the room for a moment, or anything else within the vast layers

April 2012 | 31

of communication always flowing our direction as we work. This also means parties can learn to quiet their minds and become more naturally receptive to what other parties are communicating — creating an entirely new, rich structure of dynamic communication that may have not been there before.

Psychologists call these our “attentional capacities,” or our ability to focus on multiple stimuli at a time without distraction.

Practicing some simple mindfulness thought exercises can actually build brain capacity to become more empathetic. In this way, mindfulness helps us build rapport with our clients as they feel better heard and appreciated, and gives us more “tools” in our tool bags to teach clients so as to prevent conflicts going forward.

Mindfulness techniques not only allow us to pay better attention to others, they empower us to more-readily convey genuine empathy toward others. It makes sense that if we are betterable to fully comprehend what others are communicating, we have a much greater chance of understanding and empathizing with them. As I mentioned before, practicing some simple mindfulness thought exercises can actually build brain capacity to become more empathetic. In this way, mindfulness helps us build rapport with our clients as they feel better heard and appreciated, and gives us more “tools” in our bags to help clients prevent conflicts going forward.

I realize that I’ve only spoken abstractly about “mindfulness” techniques as vague principles, but rest assured that most mindfulness exercises are simple and can be taught at the work place or at home, either with a written guide or instructional CD. For instance, simply meditating every so often (or better yet, once a day) for a few minutes each session, has shown to drastically increase the ability of participants to focus

Zachary Ulrich

more effectively.

their attention when required. As conflict resolution professionals, this means increasing our ability to focus on what clients are saying – even if the mediation has lasted 10 hours, even if we are low on sleep, even if our minds would otherwise be distracted by the unproductive caucus we just had with plaintiff.

As corporate advisers and trainers, empowering participants with basic mindfulness tools and homework can be a simple, powerful tool in helping employees learn to communicate and resolve conflict

While mindfulness techniques are often used in therapeutic environments, the methods and ideas are widely applicable in occupational-training and other skills-enhancement settings.

For more information on mindfulness, try researching some of John Kabat-Zinn’s numerous works on the topic. Dr. KabatZinn is a former neuroscientist who has dedicated his life to helping people quiet their minds and learn to communicate more effectively through mindfulness training. He is one of the pioneers of the field, and has written many books and articles on the subject. I encourage you to pick up a book on the topic and take a glance. See if it piques your interest.

After all, for many of us every task, meeting, phone call, and meal simply precedes the next. Some people can’t even turn off their phones while lying on the beach. It’s no wonder that with many of us living such “conveyor belt” lifestyles our minds have become (loud) conveyor belts, too. z

Zachary Ulrich is a Contributing Editor at ADR Times and professional neutral and writer on mediation, psychology, and business practices. He is currently working towards his Juris Doctorate, Masters in Dispute Resolution, and Masters in Clinical Psychology from Pepperdine University. Zachary is a graduate of the two-year General Electric Financial Management Program, where he held several financial analysis positions and studied business operations and strategies from executives within the organization. He is a graduate of American University in Washington, D.C., where he obtained his BS in Finance and his BA in both Economics and International Studies.

Read more articles by Zachary Ulrich at: www.adrtimes.com/articles/author/zacharyulrich

32 | ADR Times Perspectives

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