arbitration (domestic and international) (domestic and international) ... the perspective of the...

ABA Section of Dispute Resolution Spring Conference

Preliminary Program Agenda

As of March 9, 2012

Arbitration (Domestic and International)

Myth Busting: Arbitration Perceptions, Realities and Ramifications

Promoting a National Dialogue on Resolving Consumer and Employment Disputes

Current Ethics Issues in Arbitration

Arbitration Case Law Update

Overcoming Cognitive Illusions to Provide Procedural and Substantive Justice in Arbitration

Truth, Tricks and Traps: the Language of International Arbitration Advocacy

Difficult Issues for Arbitrators: What Would You Do ?

Achieving Justice through 21st Century Arbitration

The Future of Domestic and International Arbitration

Damage Experts in Arbitration: A Candid Discussion About the Value of Damage Experts from

the Perspective of the Neutral, Advocate and Client

Communication/Neuroscience/Psychology

This is Your Brain on Mediation: Reflections on Neuroscience and Practical Implications for

Mediators as well as Negotiators

Deal or No Deal: Negotiating with the Brain

The Neurobiology of International and Inter‐Cultural Dispute Resolution

Taking the War Out of Our Words: How Non‐Defensive Communication Can Make Lawyers

More Effective and Powerful Advocates and Mediators

Beyond the Dichotomy of Styles‐ A Mediator's Cognitive Schema

Resolving 21 Century Disputes

The Embodied Brain in Peacemaking: It’s Not Just in Your Head.

Brain Based Listening: A Key to Successful Mediation

THE TRANSFORMATIVE MASTER PRACTITIONER: THE SOCIAL BRAIN ‐Conflict Transformation

and Trauma in Intractable Clients

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

ADR in Specialized Contexts

America’s Peacemakers: Mediating Civil Rights Community Conflicts in the current Economic

Climate

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

Climate

Dispute Resolution Boards as Project Facilitators – procedures that preserve relationships

Discovery in Construction Arbitration: When is Enough, Enough?

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

Getting In at the Ground Level: New Opportunities for Neutrals in the Economical Litigation

Agreement

Trends in ADR and Current Perspectives of Corporate Counsel

Deal Counsel: A New Frontier for Dispute Resolution Professionals

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

Competition Not Conflict: Understanding, Preventing and Resolving Conflict in Sports

A Look Back at Hurricane Katrina: Proposing A Radical New Role for Conflict Management

Professionals: Crisis Management

Dispute System Design in Comparative and Transnational Settings

Dispute Resolution Design 2.0 ‐ A Systems Engineering Framework for ADR Processes in

Complex Disputes

FINRA Arbitration: Inside Information for Neutrals and Advocates

Medical Malpractice, Mediation and Moral Hazard: The Virtues of Dodging the Data Bank

A Process for Conflict Resolution and Management in the Healthcare Setting

Emerging Opportunities to Resolve Disputes in Healthcare

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

Disputes

Court ADR

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

and Judges

Lessons Learned about Case Management from Court‐Mandated Mediation Program

Some Assembly Required (But Not Much): Model Materials and other Ideas for Program

Design and Evaluation

State Appellate Mediation‐‐A Status Report on Current Activities, Approaches, Successes and

Challenges

Diversity

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

Agreements

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

Ethics

Malpractice, Ethics and UPL Claims Against Mediators: How the Ethical Mediator Can Avoid

Them


Ring‐a‐ling: Ethics and Trust in Telephone Mediation

Confidentiality and Disclosure Issues for ADR Neutrals in Technology Disputes

Family Law

Family Enterprise Conflict: Tough Challenges and Great Opportunities

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

Death

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

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

Government and Public Policy

Civil Discourse and Public Conflict: The Next Generation

Civil Discourse and Collaborative Governance: Lessons and Opportunities from Abroad

ACUS, OGIS, NMB and ODR: Expanding Technology‐assisted Dispute Resolution in Federal

Agencies

Federal Alternative Dispute Resolution Programs: Successes and Challenges

Effectively Using Mediators for Legal Settlements and Facilitators for Agreements on Public

Policy: Are There Practice Differences?

International and Comparative ADR

From a few thousands to a million cases, annually: the Italian mediation explosion

Caseload Trends in China: A Look Into the Future of Asian Arbitration and Mediation of

International Commercial Disputes

International Perspectives on Judicial Dispute Resolution

Can Mediation Take Root in the Arab Spring?

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

Mediation

You Take the High Road; I Take the Low Road: Beyond Positional Bargaining

Dealing With Difficult People

The Use and Misuse of Apology in Mediation

Creating a Conflict Revolution: How Mediators Can Help Save the Planet

Gridlock on (or off) the Grid

Mediating Class Actions in the Wake of Dukes v. Walmart and Concepcion v. AT & T Mobility

Getting Past Impasse

How Counter “Spin” without Counter‐spinning: Ways to Deal with Aggressive Advocates and

Ill‐Counseled Clients

When They Want to Walk Out: How to Get Beyond the Recurring Impasses of Positional

Bargaining in the Settlement of Litigation.

Negotiation

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

Using Software to Measure and Maximize Negotiation Learning

Rethinking Negotiation Teaching

Necessary Games: The Evolution and Natural History of Negotiation

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

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

Information Technology

Practice Development and Management

Women in ADR

ABA's Got Talent...Building an ADR Practice

Representing Clients/Advocacy

Designing Dispute Resolution Processes according to the Needs of Clients.

The Well Wrought ADR Clause ‐ Worth It's Weight in Gold! How to Draft the Right Clause for

Your Client's Next Deal.

Incentives for Counsel to Use ADR More Aggressively

The Lawyer As Conflict Manager

Strategies for Getting Lawyers to Negotiate and Mediate Sooner and Better

Research

Mediation Research Mini Conference ‐‐ Session 1 of two consecutive sessions: Looking

Backward; Mediation Research as of 2011

Mediation Research Mini Conference ‐‐ Session 2: Looking Forward

Skills‐Development Programs

This is Your Brain on Mediation: Reflections on Neuroscience and Practical Implications for

Mediators as well as Negotiators


Taking the War Out of Our Words: How Non‐Defensive Communication Can Make Lawyers

More Effective and Powerful Advocates and Mediators


How Counter “Spin” without Counter‐spinning: Ways to Deal with Aggressive Advocates and

Ill‐Counseled Clients

Getting Engaged: Learning Conflict Theory and Practice through Kinesthetic Experience

When They Want to Walk Out: How to Get Beyond the Recurring Impasses of Positioonal

Bargaining in the Settlement of Litigation.

Technology

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

Beyond

Using ADR for Discovery Practice in a Digital Age

Mediating via Skype

Security on Steroids

Arbitration (Domestic and International)

Concurrent Series A ‐ 1

Myth Busting: Arbitration Perceptions, Realities and Ramifications

The program will review current perceptions of arbitration through a discussion of the many surveys that have

been conducted in recent years as to how users view arbitration and through a user’s perspective. The panel will

address the accuracy of those perceptions including offering institutional statistics with respect to such

perceptions as “arbitrator’s split the baby,” and the perception that there are increased delays and costs in

arbitration today making it less attractive. A focus will also be presented on the significant economic dollar and

cents costs caused by the misallocation of resources driven by delays in justice which can be avoided by using

arbitration. This analysis will be based on significant economic studies that have been done in connection with

the attempt by states to preserve judicial budgets and in connection with the ABA’s ongoing Task Force on the

Preservation of the Justice System.

Edna Sussman, SussmanADR LLC, Scarsdale, NY

Richard Naimark, American Arbitration Association, New York, NY

Roy Weinstein, Micronomics, Los Angeles, CA

Mark Morril, Viacom, New York, NY

Concurrent Series B ‐ 1

Promoting a National Dialogue on Resolving Consumer and Employment Disputes

Few issues have sparked more intense debate than those surrounding the enforceability of predispute

("mandatory") arbitration agreements in nonnegotiated contracts involving consumers and employees. The

Supreme Court has published several new decisions that appear to dramatically limit judicial oversight of such

agreements under state law, and Congress has enacted various laws limiting the use of arbitration provisions in

some settings and authorizing the Consumer Financial Protection Bureau and the Securities & Exchange

Commission to consider whether to outlaw arbitration in various consumer contract settings. In the wake of these

developments, a broad‐based group of scholars, advocates for various positions, agency officials and

representatives of provider organizations are coming together with the intent of engaging in a facilitated dialogue‐

‐a national roundtable‐‐to explore what we know and what we still need to know about the operation of public

and private processes for resolution of consumer and employment cases, and to seek mutually acceptable

approaches to these issues. The first meeting of the roundtable is designed to focus on consumer transactions

within the purview of the CFPB and the SEC. Members of the planning group for the National Roundtable will

describe the initiative and summarize its progress,

Nancy Welsh, Penn State University, State College, PA

Tom Stipanowich, Pepperdine School of Law / Straus Institute for Dispute Resolution, Malibu, CA

Lawrence Mills, Mills, Meyers, Swartling, Seattle, WA



Ethics issues in arbitration are increasingly becoming popular with counsel seeking to vacate an arbitration award.

This panel will review recent decisions and focus on the current issues most likely to cause traps for the

unprepared. Issues such as disclosure, the use of law clerks to draft awards, the use of social media by arbitrators,

googling for information outside the record and the various ethics rules for arbitrators will be explored through

actual examples of how problems have arisen and how to protect yourself, whether you are an arbitrator or an

advocate in arbitration, from falling victim to ethical pitfalls. Special attention will be paid to disclosure. Full

disclosure for arbitrators, international and domestic, is the new standard of care. Failure to tell all facts that might

raise questions as to impartiality and independence — or even the appearance of bias — has translated into

arbitration awards being vacated by various courts in the U.S. and abroad.

Barbara Reeves Neal, JAMS, Los Angeles, CA

Judith Meyer, JPMeyer, Comercial Dispute Solutions; Cornell University, Haverford, PA

Jay Folberg, University of San Francisco School of Law; JAMS, San Francisco, CA

Concurrent Series C‐1

Arbitration Case Law Update

This panel will discuss the most important arbitration issues of the past year since the last ABA Section of Dispute

Resolution Annual Meeting. This panel will discuss the United States Supreme Court rulings dealing with

arbitration issues, as well as notable federal and state court decisions. The panel will discuss the hottest issues in

the field of arbitration, including class action and arbitrability issues. The panel will also discuss pending legislation

that will have an effect on arbitration practice.

Kristen Blankley, University of Nebraska Law College, Lincoln, NE

Maureen Weston, Pepperdine University, School of Law, Malibu, CA

James Madison, Madison Mediation, Menlo Park, CA

Thomas Burch, University of Georgia School of Law, Athens, GA

Concurrent Series D ‐ 1

Overcoming Cognitive Illusions to Provide Procedural and Substantive Justice in Arbitration

In recent years a great deal of attention has been directed at revelations from the field of neuroscience. These

behavioral studies have developed significant data as to the impact cognitive illusions can have on litigated case

outcomes. The panel will identify the nature of these cognitive illusions and demonstrate their accuracy through

audience participation. Statistics arrived at through extensive work with judges will be reviewed along with their

relevance to arbitrators’ decision making. Differences between the judicial and arbitrator role in decision making

and the impact of those differences on the accuracy of decision making will be considered. Techniques for

recognizing and overcoming unconscious bias and cognitive illusions will be discussed and explored.

Charles Moxley, Kaplan Fox & Kilsheimer LLP, New York, NY

Lela Love, Cardozo Law School, New York, NY

Jeff Rachlinski, Cornell Law School, Ithaca, NY

Poster Presentation

Truth, Tricks and Traps: the Language of International Arbitration Advocacy

This “poster presentation” is planned to provide a strong, provocative and intense discussion of advocacy in

international dispute resolution. In particular, it will be designed to challenge the primarily English‐speaking

attendees to examine the advocacy adjustments and implications when they are dealing with languages other than

English and/or pleading to arbitrators or examining witnesses whose native language is not English. This said, a

number of comments and much discussion is likely to involve advocacy points that are not unique to international

settings. This will serve to highlight one of the subthemes of the presentation: what advocacy techniques remain

largely unchanged from the U.S. to the international setting, and what techniques should be moderated, altered or

abandoned. The presentation will take off from principles or points listed on the “Poster” in order to illustrate,

with the help of apposite annecdotes (“war stories”) practical points. The presenter's experience has shown that

many participants are inherently interested in, and opinionated about, advocacy issues and curious about

international arbitration. A successful presentation with significant interaction and repartee can be anticipated.

Nicolas Ulmer, Budin et Associés, Geneva, Switzerland

Concurrent Series E ‐ 1


An interactive program will address a series of hypothetical scenarios arising in arbitration before and during the

evidentiary hearinging , all of which require immediate action by the arbitrator. Some scenarios are not covered

by arbitration law or rules.The problems will challenge, engage and inform the audience and prepare arbitratorso

for difficult situations. The scenarios ae applicable to contractual arbitrataion in all areas of the law. The audience

will be asked to propose solutins before the panelists comment. Each scenario will be addressed briefly to permit

discussion of many diverse sitguationms . Time will be reserved ofr the audience to propose other scenarios. All

panelists are experienced commercial arbitrators.

William Fitzgerald, American Arbitration Association, Los Angeles, CA

Richard Chernick, JAMS, Los Angeles, CA

Hon. Kathleen Roberts (ret.), JAMS, New York, NY

Concurrent Series F ‐ 1

Achieving Justice through 21st Century Arbitration

The increasing costs, prolonged delays and reduced funding for public courts that plague contemporary civil

litigation are denying parties their day‐in‐court and make the need for Private Justice more imperative than ever.

A well administered and managed arbitration with a neutral arbitrator and a prompt, efficient and fair hearing is

the parties, and perhaps the nation’s, best hope for the American legal system base hope for providing full, final

and binding civil justice. Nevertheless, the bad press and even demonization of ADR’s classic resolution process‐

commercial arbitration‐ have gone largely unchallenged in recent years. Too seldom is arbitration praised for being

the most cost efficient direct route to a just resolution of a dispute. This panel will examine and opine on this state

of affairs, discuss the proper role of “justice” in commercial arbitration proceedings, examine the role of private

justice in the origins of arbitration and offer contemporary definitions of “private justice”.The panel will also

discuss how best to achieve “private justice” while avoiding contravention of the US Supreme court admonition

against arbitrators “dispensing their own brand of industrial justice”.

Judith Hale Norris, Straus Institute of Dispute Resolution, Los Angeles, CA Stephen Rohde, Rohde & Victoroff, Los Angeles, CA Curtis von Kann, JAMS, Washington, DC Daniel Winslow, Proskauer, Boston, MA

Concurrent Series G ‐ 1

The Future of Domestic and International Arbitration

Is commercial arbitration in a death spiral from which it will not recover? Or has the crescendoing criticism of

American style arbitration lead to institutional and individual arbitrator responses which are revitalizing arbitration

for a bright, thriving and sustained future in the new millennium. Will arbitration continue along a path of arbi‐

litigation or has the vast propagation of cost conscious best practices protocols set the stage for arbitration to once

again be praised as the most cost efficient direct route to a just resolution of a dispute. This panel of world

renowned panel of experts, all of whom are position to profoundly shape the trajectory of public, government and

professional perceptions, use and practice of arbitration domestically and internationally, will share their insights

and prognostications of the future of domestic and international arbitration.

Lorraine M Brennan, JAMS International, London, United Kingdom

Reginald Holmes, The Holmes Law Firm, Pasadena, CA

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

Eric P. Tuchmann, American Arbitration Association, New York, NY

Concurrent Series H ‐ 1

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

Expert analysis and testimony concerning quantum damages is used to varying degrees in domestic arbitration

proceedings. In international arbitrations, the use of damage experts is beginning to become common place. This

panel will explore how the international arbitration model incorporates damage experts as the norm and how that

experience can benefit the domestic arbitration model. Not surprisingly, all parties involved in an arbitration have

different views concerning the appropriateness and value of damage experts. The panel will also explore from the

advocate, neutral and expert perspective a number of related issues including: the pros and cons of using quantum

experts, useful tools for determining whether an expert is necessary and/or helpful, how to control costs,

applicable laws and rules, the impact experts have on arbitral panels, the involvement of damage experts in

helping to improve the reasoning of damage awards.

Paul Marrow, Paul Bennett Marrow, Attorney and Arbitrator, Chappaqua, NY

Elizabeth J. Shampnoi, Esq., Navigant Consulting, Inc., New York, NY

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

Jean Kalicki, Arnold & Porter, Washington, D.C.

Communication/Neuroscience/Psychology


This is Your Brain on Mediation: Reflections on Neuroscience and Practical Implications for Mediators as well as Negotiators

This truly advanced workshop will apply recent discoveries in the field of neuroscience to the practice of mediation

and negotiation in a wide variety of case types with a particular emphasis on the early stages of mediation and

negotiation. There is no denying the fascination with what we are learning through neuroscience about the human

brain, how it guides our behaviors and how it impacts the way we make decisions. This workshop will be led by

two nationally recognized ADR leaders and experienced trainers. Participants will explore several key insights

derived from studies of the brain, as well as behavioral economics and cognitive behavioral psychology. This

workshop will connect several discoveries including those involving the limbic system, prefrontal cortex, mirror

neurons, and the functions of the left and right hemispheres of the brain as they impact cooperation, empathy and

problem solving. They will also explore how these discoveries can serve as a basis for the utility of specific

mediator skills including the delivery of opening statements, gathering information, reflective practice and agenda

development.

Daniel Weitz, NYS Unified Court System ‐ Office of ADR, New York, NY

Cathy Costantino, Federal Deposit Insurance Corporation, Arlington, VA


Deal or No Deal: Negotiating with the Brain

Why is making a decision so difficult? What both supports and distorts our decision making efforts? What keeps

us from coming to an agreement? Facilitating quality decision making can be challenging and stimulating. This

interactive workshop will explore the configuration of the mind, its relationship to the types of decisions we make

(including reactive, supportive and distorted, ethical and value based) and the effect decision making has on our

interactions in the negotiation environment. We will develop true understanding of the neuroscience behind

creating sustainable agreements. Understanding the brain’s ability and interest in the creation of value, resolution

of impasse and conflict are key components to negotiating and mediating effectively as attorneys and mediators.

Using brain sensitive strategies participants will leave this session with an understanding of reason, emotion,

irrationality, and the role of ethics in the facilitation of making decisions. This session is useful for those who are

looking for a constructive (and memorable) means of creating alliances, collaborative partnerships, and meaningful

and enduring agreements. With a more complete understanding of the brain and what it needs to make decisions,

we can as mediators and attorneys learn how to enable our clients and our colleagues move towards constructive

closure.

Jennifer Kresge, Mediation, Counseling & Training Services, St. Helena, CA

Merri Hansen, Peninsula Mediation & ADR, Williamsburg, VA

Concurrent Series C ‐ 2


What is the impact of culture on the brain, on our biological drivers and social behaviors? Is there a way to

discriminate what is cultural, individual, or contextual in our behaviors? How does this apply to dispute resolution?

This workshop will present culture in a new light and in a new context. The workshop is intended to help

participants develop an awareness of their own cultural preferences, and discover possible cultural influences that

may shape their preferred style of conflict resolution, or their behavior when acting as a neutral or as counsel in a

cross‐cultural dispute. This workshop will also present exciting new discoveries in neuroscience and cognitive

science, explaining key different pathways in emotional, cognitive and social neural assemblies. It will identify

differences and commonalities between cultures from a neurobiological perspective. A “neuro‐compass” will

finally be presented as a possible tool that may help ADR professionals to prepare for and plan their interventions

in inter‐cultural disputes. This workshop is intended to help all ADR professionals who have to deal with cultural

diversity to reflect upon their practice, develop new skills and improve their self‐awareness.

François Bogacz, Neuroawareness Consulting Services, San Diego, CA

Jeremy Lack, JAMS International, Geneva, Switzerland


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

Current research by scientists, including Dr. Joseph LeDeux, a neuroscientist at New York University, suggests that

the moment a person becomes defensive, the complex, problem‐solving part of the brain shuts down. In her book,

Taking the War Out of Our Words, Sharon Strand Ellison outlines how traditional communication methods

systemically create and accelerate conflict, consistently prompting defensive reactions. She then presents the

theory and practice for a new paradigm, powerful non‐defensive communication. The ability to diffuse

defensiveness can enhance the skills of dispute resolution professionals. In this session, participants will (a) learn

about the physiology of defensiveness, and (b) gain the ability to identify subtle ways that they may be asking

questions and making statements that prompt defensive reactions in clients, law students, and/or other

professionals in the field of law. Second, Ellison and Kaas will present non‐defensive skills, focusing on how to best

use the core elements of communication — questions, statements, and predictions — in ways that can prompt

people to instantly drop their defenses. Third, Ellison and Kaas will demonstrate how the process works, using

actual situations. Finally, Kaas will discuss her research into how lawyers and mediators are, and can, use non‐

defensive communication in their practices.

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

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

Poster Presentations

Beyond the Dichotomy of Styles‐ A Mediator's Cognitive Schema

Our research aims at improving researchers' and practitioners' understanding of the mediator's cognition.

Cognition is a key factor determining the way experts handle their challenges and decisions. Going beyond the

prevailing stylistic dichotomy which might conceal the diversity in mediation, we systematically examine the

following: The challenges of a Schema of Mediator's Practice‐ SOMP (explicit & implicit); the tensions which

emerge when a mediator's SOMP meets the complex conflict reality; and the way a mediator handles SOMP's

challenges and tensions. Our data is composed of 22 mediators, most of them highly experienced. They mediated

the same simulated conflict enacted by two female disputants. All sessions were observed, videotaped and then

assessed through multiple measures from 3 viewpoints: the mediators, the disputants, and three independent

observers. A special effort was made to capture the cognitive aspects of the mediators and compare them with

their behaviors when they encounter reality. This research addresses existing gaps in mediation research including

insufficient observational studies, the need to investigate the ways to accomplish mediators' and disputants' goals,

poor understanding of the mediator’s cognitive approach and discrepancies found between what mediators say in

self‐report studies and what they actually do as revealed in observational studies.

Tzofnat Peleg‐ Baker, Psychology Department, Rutgers University, Highland Park, NJ

Resolving 21 Century Disputes

A newly released book (December, 2011) attributes many of the "irrational" and dysfunctional behaviors that

generate and prolong disputes to the fact that our minds are seriously out of date. They evolved to resolve

disputes among inhabitants of simple, stable, and homogeneous communities. The complex, diverse, and dynamic

society we live in presents challenges for which our unconscious and conscious minds are ill prepared. We can

overcome these challenges by learning how to recognize when our minds are steering us in the wrong direction

and how to get ourselves back on track‐‐and help others do the same. The writing is straight‐forward and jargon‐

free. Key points are illustrated with practical examples and each chapter offers best practices relevant to any type

of dispute. The target audience is lawyers, managers, and dispute resolution professionals.

Geoff Drucker, The American Health Lawyers Association, Washington, DC

The Embodied Brain in Peacemaking: It’s Not Just in Your Head.

Neuroscience is a fascinating intellectual pursuit. There are hundreds of studies, reams of research to explore. But

what are the practical applications? In this poster, we will share current neuroscience research for

communication, social interactions, and conflict management. You will gain insight into the science of

neuroplasticity, mirror neurons, mindfulness, emotional regulation, cognitive biases, and creative problem‐solving

as you stock your toolbox with brain‐friendly conflict resolution strategies. This program will help you more

effectively: ‐ Communicate and think clearly under pressure. ‐ Regulate emotions. ‐ Overcome cognitive biases and

improve decision‐making. ‐ Unleash the creative potential in conflicts and facilitate insights and breakthroughs.

And we'll do all that in a fun way!

Gretchen Duhaime, Practicing on Purpose LLC, Amherst, MA

J. Kim Wright, Cutting Edge Law, Asheville, NC

Anastasia Pryanikova, E‐Studio, LLC, Stamford, CT


Brain Based Listening: A Key to Successful Mediation

Listening is more than hearing what the other person is saying. Listening is hard work and when we are listening

effectively our bodies are in a heightened state of arousal. Without specific training in listening our effectiveness

deteriorates over time. Investigators have found that from first grade through high school our effectiveness in

listening deteriorates from 90% accuracy to 28% accuracy. As adults engaged in the process of listening to clients,

we need to address our own capability to be an effective listener. In this workshop, you will learn about the

brain’s natural tendency to approach negotiations from the positional perspective and look at the listening skills

necessary to shift from the positional stance to the cooperative stance that will facilitate collaboration and

settlement of litigation. You will also learn and identify your emotional triggers, perceptual filters, attitudes and

biases that interfere with listening. The workshop will use a family case study to identify and analyze the concepts

from the presentation.

Ellen Kandell, Esq., Alternative Resolutions, LLC, Silver Spring, MD

Gloria Vanderhorst, Ph.D., Dr. Gloria Vanderhorst, Silver Spring, MD


THE TRANSFORMATIVE MASTER PRACTITIONER: THE SOCIAL BRAIN ‐Conflict Transformation and Trauma in Intractable Clients

This dynamic pair of trainers will provide an interactive presentation on the social brain and human dynamics in

conflict, trauma and conflict, the neurobiology of reactivity and how it informs the work that practitioners do in

conflict and peacebuilding. They will explore the social brain, trauma and conflict transformation. They will

facilitate and discuss simulations with traumatized clients and strategies for the practitioner to enhance their own

awareness at the table. Interventions for transformation will be explored. These facilitators are committed to

providing practical outcomes for practitioners.

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

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


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

Previous sessions on the science of lie detection and emotional truthfulness have had packed crowds at past

events. This new session builds on the past science but adds several important twists. First, it continues the use of

science based materials on both aspects of lie detection and emotional awareness true in all cultures along with

important cultural differences. Second, it adds a second new speaker with unique experience: a former high level

Secret Service agent with global experience in interviews and investigation. In addition, the new speaker is in the

top 1/3 of one percent of those tested for lie detection ‐ one of the "truth wizards" identified by leaders in the

field. Third, this session continues the use of material from testimony and simulated negotiations, but it adds new

material from actual mediations. Fourth, the session introduces new research that suggests mindfulness and other

types of meditation may improve lie detection abilities. The new session therefore addresses several audiences.

Those with no experience with lie detection or emotional awareness will get an introduction to the science. Those

with experience will learn both a new set of tools and perspectives and new examples.

Clark Freshman, University of California, Hastings College of Law, San Francisco, CA

Paul Kelly, Paul Ekman Group, San Francisco, CA

ADR in Specialized Contexts

Community and Peer Mediation


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

In this session, the U.S. Department of Justice’s Community Relations Service (CRS) will introduce participants to

the various services CRS offers to communities in conflict across the country to address tension associated with

alleged discrimination and to prevent hate crimes. The Main Concurrent Session will allow CRS conciliators, from

three of CRS’ ten Regions, to share case examples including how CRS diagnoses disputes, identifies issues to

address, and develops unique processes to support parties in addressing community conflicts. CRS is the Federal

Government's “Peacemaker” for community conflicts. CRS supplies local communities with alternative dispute

resolution services and training to equip these communities with viable problem solving techniques and

mechanisms that ultimately empower community members to sustain a system for resolving future conflicts in an

orderly and effective manner. CRS was created in 1964 to respond to civil disorder and tension in communities

rooted in racial and ethnic conflict. CRS also works with communities to employ strategies to prevent and respond

to alleged violent hate crimes committed on the basis of actual or perceived race, color, national origin, gender,

gender identity, sexual orientation, religion or disability.

Becky Monroe, U.S. Department of Justice Community Relations Service, Washington, DC

Justin Lock, U.S. Department of Justice Community Relations Service, Chicago, IL

Matthew Lattimer, U.S. Department of Justice Community Relations Service, New York, NY

Azekah Jennings, U.S. Department of Justice Community Relations Service, Boston, MA

Kathleen O'Quinn, U.S. Department of Justice Community Relations Service, Washington,, DC

Poster Presentation

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

CRS will present the Poster Presentation informing participants of the various services provided by the U.S.

Department of Justice Community Relations Service ("CRS") to address tension associated with alleged

discrimination and to prevent violent hate crimes. CRS is the Federal Government's “Peacemaker” for community

conflicts. CRS supplies local communities with alternative dispute resolution services and training to equip these

communities with viable problem solving techniques and mechanisms that ultimately empower community

members to sustain a system for resolving future conflicts in an orderly and effective manner. CRS was created in

1964 to respond to civil disorder and tension in communities rooted in racial and ethnic conflict. CRS also works

with communities to employ strategies to prevent and respond to alleged violent hate crimes committed on the

basis of actual or perceived race, color, national origin, gender, gender identity, sexual orientation, religion or

disability. This presentation would complement CRS' Main Conference Concurrent Session.

Kathleen O'Quinn, US Department of Justice, Community Relations Service, Washington, D.C.

Construction ADR (International and Domestic)


Dispute Resolution Boards as Project Facilitators – procedures that preserve relationships

If you think a Dispute Resolution Board is merely a preselected arbitration panel waiting on standby for a dispute

to arise, you have squandered the opportunity to let the DRB mitigate and avoid claims and disputes. The role of

DRBs has evolved since they first came into use in the 1970s. Properly implemented, a DRB acts to encourage and

enhance cooperation among the project participants to the betterment of the project. Experience, both

international and domestic, shows that the vast majority of projects with DRBs never need to convene formal

hearings to resolve disputes. This program offers practical advice for implementing a DRB and will provide

participants with recommended features to create an effective protocol for DRBs. Learn how a “modern” DRB can

dramatically reduce the process cost associated with a project, as compared to other ADR options, and even

enhance the relationships among the project participants.

Kerry Lawrence, Herrig & Vogt LLP, Seattle, WA

Kathleen Barnes, Watt, Tieder, Hoffar & Fitzgerald, LLP, Washington, DC

Deborah Mastin, Miami‐Dade County Attorney, Miami, FL

Serena Lee, solo practitioner, Seattle, WA

Concurrent Series H‐ 7

Discovery in Construction Arbitration: When is Enough, Enough?

Arbitration was not supposed to be litigation in a private forum. Over time the conventions of traditional litigation

have crept in and some say discovery in arbitration is out of control. It doesn’t have to be that way. Our panel,

consisting of three highly experienced construction counsel who are all also construction arbitrators, knows what

works and what just adds excess time and cost. Using a hypothetical and panel debate, they will demonstrate how

to use the flexible nature of arbitration to get what you need and still control the costs. Specifically, the panel

will cover document production, requests for electronically stored information, interrogatories, depositions, site

visits as well as the use of motions to further streamline the process. They will also address what makes a request

or objection persuasive versus what arbitrators find to be less‐than‐helpful. By examining the balancing tests

arbitrators use to make discovery decisions, attendees will gain knowledge about how to better structure their

discovery plans. Finally, the panel will provide tips for practitioners making discovery arguments before a single,

non‐attorney arbitrator.

Kenneth Walton, Donovan Hatem LLP, Boston, MA

Barbara Werther, Ober Kaler, Washington, D.C.

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

Michael Marra, American Arbitration Association, Philadelphia, PA

Corporate/ Business/Commercial


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

Following the May 2011 deadline for the implementation of the EU Directive on cross‐border mediation and the

June 2011 UN Resolution strengthening the role mediation in settlement of disputes, ADR is fast climbing the

international agenda. While sound in principle, mediating between parties from different legal systems speaking

different languages with different expectations of ADR all pose difficulties. With no uniform approach to

enforcement of settlements and confidentiality, what does the future hold for cross‐border mediation? To shed

some light on these issues, we bring together some of the world’s leading mediators from the United States, Italy,

Romania and Belgium, moderated by the managing director of cross‐border ADR provider, JAMS International.

Constantin Adi Gavrilă, Craiova Mediation Center, Craiova, Romania

Sabine König, Mediationszentrum Hamburg, Germany

Felix Merks, Result ADR Group, Amsterdam, the Netherlands

Poster Presentation

Getting In at the Ground Level: New Opportunities for Neutrals in the Economical Litigation Agreement

This presentation will highlight the features of the Economical Litigation Agreement (“ELA”), particularly those

which will require the services of a neutral. The ELA is an agreement voluntarily entered into between parties to a

commercial contract. It has been dubbed the “Civil Litigation Prenup” since it sets forth the rules of engagement

before a dispute arises in lieu of court rules of procedure. It is a protocol for pretrial discovery to avoid runaway

costs and provides that disputes will be decided by a judge, not a jury. The focus will be on those parts of the ELA

which require intervention by way of mediation and/or adjudication of discovery disputes by an “ELA arbitrator”.

The ELA arbitrator has the authority to administer and enforce pretrial discovery procedures set forth in the ELA.

This authority includes awarding damages and sanctions. The ELA is a groundbreaking document intended to

reduce civil litigation costs, already endorsed and adopted by the International Institute of Conflict Prevention and

Resolution for use by its members. The creator of the ELA, Daniel Winslow, assisted by Judge Nancy Holtz, will

lead a discussion about the ELA and the opportunities it presents for neutrals.

Nancy Holtz, Trial Court of the Commonwealth of Massachusetts, Boston, MA

Daniel Winslow, Proskauer, Boston, MA


Trends in ADR and Current Perspectives of Corporate Counsel

Increasingly, all disciplines are seeking to make decisions based on empirical evidence and ADR is no different. This

panel focuses on recent research and survey results regarding corporate legal practice and ADR. The principle

focus of the panel will be the recently completed Cornell/CPR/Pepperdine survey of the Fortune 1000 regarding

ADR practices and usage. This 2011 survey is an update to the highly regarded 1998 Cornell survey, The

Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S. Corporations, but

covers new territory as well. The panelists will include sponsors of the survey, corporate counsel and a leading

neutral and the discussion will address the findings of the 2011 survey, changes since 1998, perceptions of the

issues, and emerging trends. The session is designed to provide participants with the most up‐to‐date of the

different factors influencing decisions in commercial and employment arbitration, mediation various hybrid

approaches and the growing use of systemic approaches to conflict management.

Beth Trent, International Institute of Conflict Prevention and Resolution, New York, NY

Lisa Martinez Wolmart, Merck & Co, Inc., Summit, NJ

L. Tyrone "Ty" Holt, The Holt Group LLC, Denver, CO


Deal Counsel: A New Frontier for Dispute Resolution Professionals

ADR professionals have the skills, the understanding of cognitive and behavioral psychology, sociology, behavioral

economics, cultivated self‐awareness, even neuroscience to be great deal lawyers. Yet they have not moved

smoothly into the world of the deal. Concepts and roles like that of “Settlement Counsel” or “Negotiation

Counsel” and fields such as “Collaborative Law” have extended the negotiation skills of mediation, but the context

remains one of resolving disputes under the shadow of litigation. Concepts that have been espoused, roles that

have been defined, and structures previously identified to provide ADR professionals easy access to transactions

have not been widely adopted. This session explores these issues and from it, attendees will appreciate: the skills a

deal lawyer uses to structure, negotiate and close a business transaction; how ADR professionals can develop and

apply those skills and what else it will take to move into the realm of the deal; how concepts like BATNA or the

impact of the shadow of the law differ when litigation is remote; the institutional structures and principles of

mediation that best can be applied in transactions; and ultimately how to “mediate a deal” and how to position

oneself in the marketplace.

Donald W. Douglas, Leveraged Negotiations, LLC, Lake Oswego, OR

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

Scott Peppet, The University of Colorado Law School, Boulder, CO


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

In most disputes, each party has an interest and is either aligned with or against the other parties. But mediators

face a special problem trying to reach a global settlement among a policyholder and multiple insurers in complex

cases, including payment and issue‐dependent realignment of party interests. On one issue, the policyholder may

be against all insurers. But on the next issue, the primary and policyholder are the same side, against the umbrella

and excess insurers, or policyholder and umbrella/ excess insurer interests might align against the primary

insurers. And the number of issues to be resolved in a complex global settlement can be stifling. Using examples

and hypotheticals, this distinguished and diverse panel will discuss strategies and tips for bringing all the players

under a single tent despite their divergent and ever‐changing interests, as well as litigator “wish lists” for effective

mediation sessions.

Mary Craig Calkins, Jenner & Block; Co‐Chair, ABA Section of Litigation Insurance Coverage Litigation Committee,

Los Angeles, CA

Ronald Kammer, Hinshaw & Culbertson LLP; Co‐Chair, ABA Section of Litigation Insurance Coverage Litigation

Committee, Miami, FL

Hon. Enrique Romero (*request pending), ADR Services, Inc., Los Angeles, CA

Diana Marshall, Marshall & Lewis LLP, Houston, TX

Jodi Spencer,Thacker Martinsek LPA; Co‐Chair of the Programming Subcommittee of the ABA Section of Litigation

Insurance Coverage Litigation Committee, Cleveland, OH

Dispute System Design

Poster Presentation

Competition Not Conflict: Understanding, Preventing and Resolving Conflict in Sports

Competition Not Conflict (CNC) is a program focused on understanding, preventing, and resolving destructive

conflict in sports while promoting competition. CNC operates under the umbrella of the University of Oregon

School of Law’s Appropriate Dispute Resolution Center. The ADR Center is home to a wide range of programs that

focus upon a common goal: understanding and practicing proven methods to reduce destructive conflict and

facilitate lasting results for individuals, communities, organizations, and nations. The Center houses a number of

programs that engage students, scholars, and community members from around the world, and it consistently

ranks among the nation’s top ten programs of its kind. This poster presentation will discuss sport as a unique

context for conflict analysis and skills development. Sport‐‐with its established rules and goals, clearly defined

winners and losers, and ease of observation‐‐provides a uniquely ripe context in which to research and document

conflict, analyze its origins, develop dispute systems for its effective management, and impart valuable life skills for

understanding, preventing, and resolving conflict both on and off the field. The presenttion will discuss

applications and lessons learned working with groups of all ages and skill levels, from youth sports to professional

athletics.

Joshua Gordon, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR

Jane Gordon, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR

Laura Johnson, University of Oregon School of Law Appropriate Dispute Resolution Center, Eugene, OR

Poster Presentation:

A Look Back at Hurricane Katrina: Proposing A Radical New Role for Conflict Management Professionals: Crisis Management

Using Hurricane Katrina as a model, this speaker will discuss the phenomenology of disasters in America. Various

systems can quickly become dysfunctional; the factors that impede effective emergency response can be forecast

with relative certainty. My research identifies areas where things routinely break down. These areas/factors can

be better managed when one person is placed in a role to oversee and manage the crisis phase of a disaster. A

Conflict Management Professional, i.e., Ombuds can unify the ad hoc crisis management team and ensure its

accountability and engagement. Therefore an Ombuds should be a mandatory participant with top officials during

the crisis phase of a disaster for better coordinated emergency response. Provision of a structural solution of this

nature would signify a needed commitment by our government to mitigate human misery in disasters. The various

relevant functions and traits that an Ombuds is ideally suited to perform and that could stabilize the process will

be outlined. Disasters produce distinct but predictable psychological barriers, and I analyze ways the Ombuds can

counter act them. This model can be extrapolated for use in any large crisis. I suggest examples that have had a

significant impact on large portions of the population.

Cynthia Mazur, Federal Emergency Management Agency/Dept Homeland Security, Washington, DC


Dispute System Design in Comparative and Transnational Settings

The field of dispute system design (DSD) has developed significantly over the last 20 years. Most literature on DSD

refers to systems for preventing, managing, and resolving conflict in organizations. DSD applies equally to systems

for governance, both within a nation‐state and across countries. It includes efforts to design national constitutions,

conflict resolution structures that cross national boundaries, and international initiatives aimed at reforming

corrupt or failed states. This session will focus on DSD in the international arena, including both transnational

systems and systems within a developing nation‐state. Lisa Blomgren Bingham will discuss definitions of the rule of

law, current approaches to governance, and rule of law initiatives as examples of DSD in governance. Janet

Martinez will highlight system design features for: (1) online dispute resolution provisions being developed by the

UNCITRAL Working Group III for low value, high volume cross‐border e‐commerce disputes, and (2) European

national mediation provisions adopted pursuant to the EU Directive on mediation in civil and commercial matters.

Stephanie Smith will address application of DSD principles to international efforts to assist countries emerging

from war or authoritarian regimes. Topics will include integrating local and international knowledge, "top‐down"

and "bottom‐up" strategies, and formal and informal justice mechanisms.

Lisa Blomgren Bingham, University of Nevada Las Vegas William S. Boyd School of Law, Las Vegas, NV

Janet K. Martinez, Stanford Law School, Stanford, CA

Stephanie E. Smith, Stanford Law School, Stanford, CA


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

Globalisation is causing increasing numbers of cross‐border disputes. Families are more frequently multi cultural

as are large and small businesses. Call centres in one country take enquiries and complaints about a service

provider in a different continent. Medical tourism sometimes goes wrong. The resolution of disputes occurs

across national borders and legal jurisdictions. Systems Engineering is a management technique which has been

used in large complex engineering projects to improve the cost effectiveness, efficiency, risk and holistic nature of

their construction and operation. Systems Engineering can also be applied to the design and conduct of

interdisciplinary ADR processes for intercultural disputes. The Systems Engineering management framework is a

means of dealing with complexity in a systematic, multidisciplinary way. At its heart it relies upon: a concise

consensual goal; identified stakeholders; established roles, interests and issues of the stakeholders and their

lines of communication; agreed requirements for the system to achieve its goal; documented less complex

components of people processes and things collaborating to achieve the system goal verified against

requirements; combining components to achieve the goal.

Lorraine Lopich, Mediate Today, Sydney, New South Wales, Australia

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

Manon Schonewille, ACB Foundation, Toolkit Company, Amsterdam

Employment and Labor


FINRA Arbitration: Inside Information for Neutrals and Advocates

The Financial Industry Regulatory Authority administers the largest employment arbitration forum in the securities

industry, covering all disputes between securities firms and their registered employees. Attorneys who handle

FINRA employment cases and a FINRA arbitrator will address how the FINRA forum differs from others, and how

to join the FINRA panel of arbitrators.

Susan Grody Ruben, Arbitrator & Mediator, Cleveland, OH

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

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

Abigail Pessen, Arbitrator & Mediator, New York, NY

Cliff Fonstein, Sidley Austin, New York, NY

Health Care


Medical Malpractice, Mediation and Moral Hazard: The Virtues of Dodging the Data Bank

Litigation is sometimes essential for achieving justice after adverse medical events. However, its admonition to

"be more careful!" rarely improves quality of care. Although errors do involve personal slips, they commonly

result from complex system‐level failures requiring system‐level fixes. Litigation chills the communication that is

essential to learn what—really—happened, to amend systems and avoid future errors. Hospitals increasingly

recognize that early dispute resolution can be faster, cheaper, fairer and far better suited to enhance quality.

Unfortunately, physicians are largely left on the sidelines. Medical malpractice payments, even when small or

unjustified, must be reported to the National Practitioner Data Bank where they become a permanent professional

blemish. Weighing the high odds of winning if they defend in litigation, versus a guaranteed black mark if they

settle early, physicians rarely participate in early mediation. After discussing the advantages of early mediation,

this presentation explores a variety of ways in which physicians can lawfully avoid the data bank and thereby freely

participate. The presenter will then address the "moral hazard" question, arguing that avoiding Data Bank medical

malpractice reports is genuinely desirable, in part because the original justification for these reports has long since

become archaic and their implementation has been chaotic.

Haavi Morreim, College of Medicine, Univ. of Tennessee Health Science Center, Cordova, TN

A Process for Conflict Resolution and Management in the Healthcare Setting

The healthcare setting whether it be a hospital, clinic, or office is one in which good communications, effective

relationships and strong teamwork are key. Development and implementation of an effective conflict resolution

strategy can provide this for staff members, both direct caregivers and others. Training in conflict resolution

techniques, strategic determination of goals and objectives and skills development are all important components.

Additionally, utilizing the professional expertise of conflict resolution professionals both in the program

development and in the actual process of dispute resolution are critical. Developing the skills necessary to

maximize the success of a conflict management program in the healthcare setting will include building expertise in

multi‐party and complex mediations; possessing an ability to develop measurements for program success and and

demonstrating an understanding of the relationships and power balances unique to the healthcare environment.

Elaine Dickhoner, The Conflict Management Group, Cincinnati, OH


Emerging Opportunities to Resolve Disputes in Healthcare

Top professionals in both healthcare law and mediation will share their experiences in today’s fast‐growing

healthcare sector which has become highly politicized with not only legal, but moral, and family/ethical/religious

issues. Topics will include: facilitating resolution of end‐of‐life decision‐making in the family/healthcare

provider/religious advisor context; dealing with advance directives before and in the ICU; staffing issues (chief

medical officer vis‐á‐vis vice‐president of human relations); physician credentialing; bioethics issues in clinical trials

and use of institutional patient data; family intervention issues regarding addictions and other anti‐social

behaviors; and allocation of scarce resources in an era of limited funds/providers/organs. In addition, the panel

will discuss developing an institutional process to deal with these emerging questions and, further, recent

developments in healthcare that create career development opportunities for mediators and health administration

professionals.

John Phillips, Husch Blackwell LLP, Kansas City, MO

Larry Bridgesmith, Institute for Conflict Management, Lipscomb University, Nashville, TN

Charity Scott, College of Law and Robinson College of Business, Atlanta, GA

Ellen Waldman, Thomas Jefferson School of Law, San Diego, CA

Kathy Perkins, Kathy Perkins LLC, Lawrence, KS

Patrick Nichols, Patrick R. Nichols, Chtd., Lawrence, KS


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

Mediation of significant disputes in healthcare field. Discussion of needs and concerns of healthcare disputants,

eg, patient privacy; business confidentiality; elimination of disputes that threaten businesses; management of

relationships with investors, lenders, vendors, other staff, etc.; avoidance of public controversy especially by

educational and charitable organizations in healthcare. Ways to address those particularized needs especailly in

context of false claims cases brought by federal and state governments and in context of physician disputes with

practice groups and hospitals. This program is derived from Section's new initiative to collaborate with health law

section of ABA.

Wayne Thorpe, JAMS, Atlanta, GA

David Douglass, Shook Hardy Bacon, Washington, DC

A. Thomas Morris, US Dept of Justice, Washington, DC

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

Court ADR

Concurrent Series B‐3

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

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

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


Lessons Learned about Case Management from Court‐Mandated Mediation Program

In court‐mandated mediation, preparation and case management are vitally important. Lawyers, parties and

mediators must implement proper steps before and during the mediation to ensure all participants realize the full

benefits of the process. Panelists have significant experience with New Jersey’s mandatory civil mediation

program. They will first describe its key elements (e.g., types of cases referred to mediation and when; how court

appoints mediators and notifies participants; how parties may select their own mediator; mediator’s initiation and

staging of the process, handling of case management issues and setting critical dates; how mediators get persons

with settlement authority to attend the mediation; billing issues). This panel of experienced mediators and

lawyers will appraise case management tools applicable to court‐ordered mediation programs, presenting proven

strategies to stage pre‐mediation preparation. Attendees will learn how to (a) streamline the exchange of key

information and manage the parties' unrealistic expectations; (b) manage multiple parties in complex mediations

and (c) insure participation of the 'right' people with necessary settlement authority. This interactive, topical

program is an integrated, meaningful combination of direct discussion, PowerPoint presentation, vigorous Q and A

and relevant, “real life” anecdotes, designed for ADR practitioners and attorneys at the intermediate or advanced

level.

Bonnie Blume Goldsamt, Law & Mediation Offices of Bonnie Blume Goldsamt, Verona, NJ

Suzanne M. McSorley, Stevens & Lee, Lawrenceville, NJ

Richard Steen, Richard H. Steen, LLC, Attorneys at Law, Princeton, NJ

Marvin Schuldiner, Sanns ADR Services, Franklin Park, NJ

Concurrent Series E‐4

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

This session will provide participants with top‐shelf, peer‐reviewed materials to support program design and

evaluation. Presenters will deliver concise introductions to tested and proven resources freely available from

national organizations including the ABA and CADRE, as well as findings from ongoing court ADR research funded

through NSF and the ABA. Illustrations of rigorous and relevant evaluation projects will demonstrate how data may

be applied to improve practice in mediation services ranging in size from solo practitioners to large managed

rosters.

Timothy Hedeen, Kennesaw State University, Kennesaw, GA

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

Philip Moses, Consortium for Appropriate Dispute Resolution in Special Education, Eugene, OR

Jennifer Shack, Resolution Systems Institute, Chicago, IL


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

State appellate courts in approximately thirty‐three states now offer ADR services in civil appellate cases. The

Maryland Court of Special Appeals Office of Medation has recently completed a survey of state appellate

mediation programs to gather comprehensive data on the operations of such programs, including types of cases

mediated, settlement rates, selection and qualifications of mediators, program management, mediation costs,

modes of mediation and other ADR services, noteworthy successes, and continuing challenges. The survey

information gathering and distribution and follow‐up discussions, including this workshop, are intended to assist in

the continuing development of appellate mediation within existing programs, to promote increasing dialogue

between state appellate mediation providers, to help support the creation of new state appellate mediation

services, and to compare state appellate mediation with other state and federal court‐based mediation activities.

The facilitators/presenters will provide an overview of the information received, and have invited state appellate

mediation leaders from around the country to participate in the presentations and discussions.

Tara Lehner, Office of Mediation, Maryland Court of Special Appeals, Annapolis, Maryland

Mala Malhotra‐Ortiz, Office of Mediation, Maryland Court of Special Appeals, Annapolis, MD

Diversity


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

Western negotiators highly value a written contract as a binding and enforceable agreement, however the

contract may be not be seen as "final" in the eyes of some other cultures. Across the world, cultures view fairness,

truth, and durability quite differently. Since cultures have different communication styles (high and low context), it

is often difficult to understand the other party's intent and to know when a deal is actually a deal. For example,

"yes" does not always mean "I agree." In addition, how people see their ability to impact the future (the concept

of internal and external locus of control) and their level of comfort with risk and uncertainty (high and low

uncertainty avoidance) impacts how cultures view the level of detail and enforceability clauses needed in written

agreements. This workshop will focus on understanding the above theoretical concepts, and will provide practical

tips and techniques in working with other cultures. The presenter has been presenting cross cultural workshops

and trainings for over fifteen years both nationally and internationally.

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


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

Mediators can improve the quality of their work by using peer supervision in small groups to reflect on their

mediation experiences, in order to distill lessons and create a developmental path to integrate those lessons. The

ability to reflect on our experience and mistakes, to learn and to translate this learning into action is essential to a

vital personal and professional life. As dispute resolvers, we are adept at theoretical, cognitive and skill‐based

learning, but we have not with equal commitment sought the tools of a reflective practice. Reflective practitioners

gain awareness of their unique style and approach to mediation, along with nonjudgmental awareness of their

inner world and insight into attitudes and beliefs they actually bring to participants in the mediation. Therapy is a

common approach to awareness of our personal inner world. Reflective practice trains awareness of our

professional inner world. Such groups also have the added advantage of creating opportunities for increasing the

diversity of the ADR field by our inclusiveness in these groups and greater personal understanding of our

differences. The presenters have been involved in such a group for almost a decade and will offer their ideas on

how to form and sustain such groups.

Daniel Bowling, ADR Program, US District Court for Northern CA, San Francisco, CA

David Hoffman, Boston Law Collaborative, LLC, Boston, MA

Marvin Johnson, JAMS ‐ the Resolution Experts, Silver Spring, MD

Homer La Rue, Howard University School of Law, Columbia, MD

Ethics


Malpractice, Ethics and UPL Claims Against Mediators: How the Ethical Mediator Can Avoid Them

This workshop will describe the types of malpractice claims a party could file against a mediator, including intentional torts, negligence, strict liability, breach of contract, or breach of fiduciary duty. It will next provide an overview of the ethics grievances filed against mediators in five states with state‐run grievance programs. It will also identify the sanctions a mediator could face in these proceedings, which apply the mandatory ethics code of the state. Next, the workshop will explore the nature of UPL claims against mediators and describe the sanctions state regulatory bodies have imposed. Then, it will consider proceedings filed against mediators that seek the disclosure of confidential mediation communications. Lastly, it will explore state statutes conferring partial or absolute immunity on certain mediators. The program will examine relevant provisions of the Model Standards of Conduct for Mediators and several state mandatory ethics codes. Paula Young, J.D., LL.M., Appalachian School of Law, Grundy, VA

Concurrent Series


Ethics issues in arbitration are increasingly becoming popular with counsel seeking to vacate an arbitration award.

This panel will review recent decisions and focus on the current issues most likely to cause traps for the

unprepared. Issues such as disclosure, the use of law clerks to draft awards, the use of social media by arbitrators,

googling for information outside the record and the various ethics rules for arbitrators will be explored through

actual examples of how problems have arisen and how to protect yourself, whether you are an arbitrator or an

advocate in arbitration, from falling victim to ethical pitfalls. Special attention will be paid to disclosure. Full

disclosure for arbitrators, international and domestic, is the new standard of care. Failure to tell all facts that might

raise questions as to impartiality and independence — or even the appearance of bias — has translated into

arbitration awards being vacated by various courts in the U.S. and abroad.

Barbara Reeves Neal, JAMS, Los Angeles, CA

Judith Meyer, JPMeyer, Comercial Dispute Solutions; Cornell University, Haverford, PA

Jay Folberg, University of San Francisco School of Law; JAMS, San Francisco, CA

John A. Sherrill, Seyfarth Shaw LLP, Atlanta, GA


Ring‐a‐ling: Ethics and Trust in Telephone Mediation

As mediators increasingly rely on technology for all or part of their mediation, they must be cognizant of the best

ways to maximize technology’s effectiveness to foster productive communication despite the lack of contextual

cues such as eye contact, proximity, personal space, and demeanor. Mediators’ central role is to facilitate

communication; therefore, one of their primary responsibilities is to engender trust, which in turn helps to

enhance candid communication and good faith participation. In this highly interactive session, the presenters will

demonstrate ethical concerns involved in a telephonic mediation and highlight new research that poses Six

Principles of Trust. Although the Principles may apply to a face‐to‐face mediation, they also demonstrate the extra

attention that an online mediator must give to the participants in order to gain and maintain their trust.

Jessica Carter, Department of Building and Housing, New Zealand, Auckland, New Zealand

Susan Exon, University of La Verne College of Law, Ontario, CA

Juliet Whinston, Consultant, McKinney, TX


Confidentiality and Disclosure Issues for ADR Neutrals in Technology Disputes

The program will discuss different ethical issues that may arise during technology related Arbitrations or

Mediations. Particular emphasis will be on on the level of disclosure required by the ADR professional. Topics will

include conflicts of interest, technology related conflicts, confidentiality and obligations imposed by ADR provider

organizations. In addition, issues under the ABA Model Rules, the ABA guidelines for mediators and the various

court advisory committees will be addressed. Also, we will cover post ADR confidentility issues.

J William Frank, FrankADR, Racine, WI

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

Suzanne Nusbaum, Impartia, Los Gatos, CA

Sandra Sellers, Technology Mediation Services, LLC, McLean, VA

Family Law


Family Law

Family Enterprise Conflict: Tough Challenges and Great Opportunities

Helping a family deal with protracted conflict in its family enterprise presents outside professionals with tough

challenges as well as great opportunities. Such enterprises – including family‐owned business, joint investments,

real estate inheritance, vacation property, shared art, philanthropy – generate complex conflicts that mix

emotional dimensions of family with legal complexities of shared interests and ownership. The panel – composed

of a family systems consultant, attorney, and mediator – will explore the multidisciplinary challenges of helping

families deal constructively with such conflicts. They draw lessons from their practices, including having jointly

assisted siblings and cousins untangle a protracted dispute and make decisions charting a productive way forward.

In this interactive presentation, panelists will provide attendees the opportunity to address in small groups some

of the toughest challenges in family enterprise conflict resolution, informed by the panelists’ experiences that

family enterprises can be helped to make difficult decisions, reach agreements on urgent and immediate disputes,

and begin to change the way they deal with each other on an ongoing basis – even in the face of continuing

discomfort over long‐standing and seemingly irresolvable differences. Making structural changes can over time

create an opportunity, but not a guarantee, to improve long‐term relationships.

John Wofford, John G. Wofford, Esq., Cambridge, MA

Richard Alper, Richard S. Alper, Esq, Washington, DC

Kathy Wiseman, Working Systems, Inc, Washington, DC


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

Mediation of decisions and disputes related to elders is a growing area of Dispute Resolution practice. This

workshop will explore how families can avoid and address a range of issues and legal problems through ADR while

an elder is living and after an elders death. An elder mediation trainer and author, an estate distribution mediator,

and a probate arbitrator will address the challenges and opportunities of mediating and arbitrating these cases.

Dana Curtis, Elder Mediation Group, Sausilito, CA

Stephen Yusem, Morris and Clemm, P.C., Philadelphia, PA

Thomas Reese, Thomas Reese, ADR Office, Palo Alto, CA


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

Parenting coordination is a relatively new hybrid ADR process that combines mediation, arbitration/decision‐

making, coaching, case management and parent education with the goal of helping high‐conflict parents

implement and clarify their parenting plans and court orders. The PC role can be an ethical and practice minefield

for the unwary practitioner and also for the referring professional, such as a lawyer, mediator, and the court.

Challenges include the reaction of a party who is on the “losing side” of a recommendation or decision, burnout of

the professional who is assigned to the parents and is constantly being pulled by demanding, unreasonable people,

and the problem of the PC being paid for his or her services. From the referring vantage point, there are difficulties

in finding professionals who can remain neutral when faced with difficult personalities and have the skills to bring

parties to agreement, but who can also make decisions when necessary within the legal framework of the role.

Four experienced ADR professionals, including a parenting coordinator, a referring mediator, a family court judge,

and a court administrator, will discuss the challenging practice issues from their different perspectives and, in

interaction with the participants, offer solutions and opinions on the role’s effectiveness.

Christine Coates, J.D., Christine A. Coates, JD, Dispute Resolution Professional, Boulder, CO

Linda Fieldstone, M.Ed., Family Court Services, 11th Judicial Circuit in Florida, Miami, FL

Hon. Denise Herman McColley, Henry County Family Court, Napoleon, OH

Zena Zumeta, J.D., Mediation Training & Consultation Institute, Ann Arbor, MI


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

Since its inception in the mid‐70’s, family mediation has been an interdisciplinary endeavor. Although mental

health professionals and other non‐attorneys were heavily involved in family mediation since its beginning, there

has been an increasing dominance of lawyers in the private mediation arena. This session will explore the

interdisciplinary beginnings and current trends of family mediation in the courts and in private practice. Panelists

will discuss trends generally and in their respective states (Florida, Illinois, and Texas) and the underlying reasons

for these trends. Changes in public and private family mediators’ styles will also be discussed.

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

Susan Yates, Resolutions Systems Institute, Chicago, IL

Bruce Wettman, Wettman Dispute Resolution, Houston, TX

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

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

Government and Public Policy


Civil Discourse and Public Conflict: The Next Generation

As governments at all levels become less responsive to citizen needs, and as people get further turned off with by

the increasing level of acrimony on political issues, community leaders are increasingly turning to more

collaborative governance processes to address public issues. This innovative program introduces us to those

processes, explains what they are and how they are both similar and different than traditional dispute resolution

processes, and the role that dispute resolution practitioners and law can play in them. The format is highly

interactive, with audience members generating their own questions for a Panel of Experts interspersed within the

audience, after a brief introduction by panel co‐chairs drawn from both the dispute resolution and civil discourse

communities.

Matt Leighninger, Deliberative Democracy Consortium, Hamilton, ON

Susan Podziba, Susan Podziba & Associates, Brookline, MA

Mary Jacksteit, Law Offices of Mary E. Jacksteit, Takoma Park, MD

Sandy Heierbacher, National Coalition for Dialogue and Deliberation, Boiling Springs, PA

Susan Carpenter, Mediator, Riverside, CA

Anne Gosline, Gosline & Reitman Dispute Resolution Services, Litchfield, ME

Richard Reuben, University of Missouri School of Law, Columbia, MO


Civil Discourse and Collaborative Governance: Lessons and Opportunities from Abroad

Political, policy and public problems of great complexity and importance desperately need solutions and traditional

methods don’t work anymore. This conversation will explore how we can introduce radical new thinking and

objectives into dialogue, civil discourse, collaborative governance, and dispute resolution and adapt a range of

creative and interactive processes to the most difficult issues we face on the planet. Panelists from India, Scotland,

and Hong Kong will discuss initiatives underway in their countries, and discuss the barriers to success and how they

could be overcome, and they and US panelists experienced in international conflict resolution will discuss

challenges and innovative thinking, approaches and new paradigms in transnational efforts, such as those by

Mediators Beyond Borders, International. Audience input, ideas, questions and discussion will be elicited

throughout the program.

John Sturrock, Core Solutions, Edinburgh, Scotland United Kingdom (Great Britain)

Ashok Panikkar, Meta‐culture, Bangalore, India

Anna Spain, University of Colorado, Boulder, CO

Charles Crumpton, Crumpton & Hansen, LLLC, Honolulu, HI

Shahla Ali, The University of Hong Kong


ACUS, OGIS, NMB and ODR: Expanding Technology‐assisted Dispute Resolution in Federal Agencies

The Administrative Conference of the United States (ACUS) was largely responsible for passage of the

Administrative Dispute Resolution Act of 1990 and for establishing the current ADR framework in the federal

government. In 1994, however, its funding was terminated and it ceased operation. Sixteen years later, in 2010, it

was revived with the goal of improving the fairness and effectiveness of agencies and dispute resolution is again

likely to be a major area of activity. Many of the original reasons for passing the ADR Act of 1990 are now relevant

to ODR. In 2007 Congress ushered in a new era in the Freedom of Information Act (FOIA) world when it amended

FOIA to create the Office of Government Information Services (OGIS) to provide mediation services to resolve

disputes between FOIA requesters and all 97 Executive Branch departments and agencies. Increased use of ODR is

likely as the OGIS caseload increases. The National Mediation Board has been a pioneer in ODR, using technology

in various ways in its work with airlines and railroads. This panel will discuss the potential for ODR, significant

challenges and actual accomplishments.

Ethan Katsh, National Center for Technology and Dispute Resolution, Needham, MA

Scott Rafferty, former Senior Counsel, Administrative Conference of the United States, Washington, DC

Daniel Rainey, National Mediation Board, Washington, DC

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


Federal Alternative Dispute Resolution Programs: Successes and Challenges

There are many success stories in the federal Alternative Dispute Resolution community. Yet ADR remains

underutilized in the federal government. The panelists will look at the priorities and needs of the agency ADR

programs, highlight ADR success stories and identify emerging areas for ADR in the federal government. The

program will inform both the federal ADR practitioners and the larger ADR community about how ADR is being

implemented by agencies and about the potential for ADR in the government, including areas in which the

government can improve agency effectiveness and save scarce resources. Three of the four panelists are

members of the Steering Committee of the Interagency Alternative Dispute Resolution Working Group (IADRWG),

established by Presidential Memorandum of May 1, 1998, to assist federal agencies in developing and operating

ADR programs. www.adr.gov/interagency‐working‐group.html The group is the central forum and resource for

information about the federal government's use of ADR. In the winter of 2011, the IADRWG expects to be a co‐

sponsor with the Administrative Conference of the United States (ACUS) and the U.S. Department of Justice in

presenting a workshop devoted to these issues. This program is an opportunity to report and build on the

outcome of that workshop.

Howard Gadlin, National Institutes of Health, Bethesda, MD

Shawne McGibbon, Administrative Conference of the United States (ACUS), Washington, DC

Miriam Nisbet, Office of Government Information Services (OGIS), National Archives and Records Administration,

College Park, MD

Deirdre Gallagher, Dispute Resolution Service Organization, Federal Energy Regulatory Commission (FERC),

Washington, DC


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

It has always been a premise for many that mediation is a process that is applicable to a wide variety of situations

and that a good mediator can serve parties successfully across a spectrum of disputes. As the practice of

mediation is more fully integrated into the resolution of disputes and development of public policy agreements,

parties are becoming ever more sophisticated in how they select and utilize ADR professionals. This panel will

examine the evolution of two primary areas of ADR practice, mediating the negotiation of legal agreements and

facilitating agreements on public policy, as it explores the reality of mediation practice. This session will describe

how the mediation practices in these two contexts may differ, and how the outcomes, procedures, and

qualifications for mediators may be similar or different.

Suzanne Orenstein, Udall Foundation/US Institute for Environmental Conflict Resolution, Washington, DC

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

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

Deborah Osborne, Federal Energy Regulatory Commission, Washington, DC

John Bickerman, Bickerman Dispute Resolution, Washington, DC

International and Comparative ADR


From a few thousands to a million cases, annually: the Italian mediation explosion

The session will focus on the particular situation of Italy where, after the implementation of the new Mediation

Law (Legislative Decree 28/2010) the number of mediations is rising exponentially and is expected to reach one

million per year. In fact, in implementing the 2008 European Directive on cross‐border mediation the Italian

lawmakers decided to go beyond voluntary mediation and made mediation, in a variety of civil and commercial

cases, a condition precedent to trial. The law aims to reduce the incredible backlog of civil cases pending in Italy

(more than 5.6 million) and to shorten the average eight‐year duration of civil case. No such reform can occur

without opposition. Indeed, while the mediation industry has gone from 20 accredited mediation organizations to

over 450 in less than 12 months, Italian lawyers have gone on strike several times already and filed a case with the

Italian Constitutional court to quash mandatory mediation. The session will present the key regulatory features of

the Italian system and numerous data. The ensuing discussion will cover also ongoing legislative initiatives in other

EU countries to follow the Italian model.

Giuseppe De Palo, ADR Center, Rome, Italy


Caseload Trends in China: A Look Into the Future of Asian Arbitration and Mediation of International Commercial Disputes

In the world's second largest economy many significant international commercial disputes are arbitrated and

mediation is receiving greater attention as a means to resolve these disputes. Some of the world's leading experts

in Chinese‐foreign dispute resolution including the Secretary‐General of CIETAC (China International Economic and

Trade Arbitration Commission), both the Secretary‐General and the Past Chairman of HKIAC (Hong Kong

International Arbitration Centre), the Dean of the Shanghai University School of Law, and the Executive Director of

JAMS Arbitration Practice, an arbitrator with significant experience in both CIETAC and HKIAC cases, will address:

What kinds and numbers of international or foreign‐related cases are being arbitrated in China, both Mainland

China and Hong Kong? Can foreign parties receive fair hearings and enforceable awards in China? Do they

perceive that they can? What is the record of award enforcement in China? What recent legal developments in

China have affected arbitration and mediation? Is mediation of commercial disputes more likely in China in the

future? Is Mainland China or Hong Kong more suitable for arbitrating particular cases due to legal requirements or

procedural differences?

Joan Grafstein, JAMS, Atlanta, GA

Yu Jianlong, CIETAC, Beijing, China

Chiann Bao, Hong Kong International Arbitration Centre, Hong Kong

Shen Sibao, School of Law, Shanghai University, Shanghai, China

Neil Kaplan, Mallesons Stephen Jaques, Hong Kong

Robert Davidson, JAMS, New York, NY

Concurrent Series D – 6

International Perspectives on Judicial Dispute Resolution

This session will discuss and update the work of an International Research Collaborative (IRC) in Comparative

Judicial Dispute Resolution (the work undertaken by Judges to encourage, direct, or engage in settlement

processes for civil litigation, including judicial conciliation and mediation). This IRC has been recognized and

approved by the Law and Society Association and includes more than twenty five scholars, judges and practitioners

from many countries. Some countries have a long history of judicial involvement in settlements and facilitated

discussions and this is viewed as an accepted and important part of the judicial role. In other jurisdictions, there is

more discomfort with judicial dispute resolution and the role of a judge may be perceived as more appropriately

limited to adjudication. The participants In the IRC are drawn from Asia, North America, Europe, and South Africa.

The session will be highly interactive, consisting of a facilitated discussion among the participants and outreach to

the audience. It will cover judicial dispute resolution in a number of countries, including the important question of

what sort of responsibility judges have to oversee the work of their delegates, such as magistrate judges, special

masters, staff mediators, roster mediators.

Archie Zariski, Athabasca University, Athbasca, AB Canada

Donna Stienstra, Federal Judicial Center, Washington, DC

Bobbi McAdoo, Hamline University School of Law, St Paul, MN

Machteld Pel, Pel Mediation, Arnhem Netherlands


Can Mediation Take Root in the Arab Spring?

In 2011, three brutal dictatorships were removed, two by unarmed civil resistance and one by NATO‐assisted

armed rebellion. Other civilian uprisings continue in the region. Four panelists, three of whom are from Arab

states now in a post or potentially pre‐conflict periods, will discuss their views on how mediation is a powerful

instrument for strengthening the rule of law and for civil society peace‐building. The first presenter will examine

the status and potential of court‐related mediation as rule of law tool in the region. Through the lens of their

cultures and diversities, the other three presenters, all acknowledged leaders of mediation in their respective

countries. will examine the current and potential growth of mediation in three religiously and ethnically diverse

Arab nations. The discussions will include how various mediation techniques and applications working in these

countries may useful if applied to other nations in turmoil.

Lynn Cole, President and Founding Member of Mediators beyond Boarders, International and President, Cole

Academy for International Mediation Training, Tampa, FL

Deniz Kite, Founder and Director of L’accadémia Areté, and Founder and President for the Mediators Association in

Turkey, Beyoğlu, Istanbul Turkey

Orouba Qarain, Sharif Zubi Law firm, Amman, Jordan

Alia Ismail, Alem & Associates, Beirut, Lebanon


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

Intractable conflicts are often fueled by cultural differences that cannot be addressed because of the competing

histories anchoring those cultures. How can complex competing narratives be transformed? A team of conflict

professionals from George Mason University's Center for Narrative Studies, Gishurim (an Israeli organization that

provides support and guidance for Community Mediation and Dialogue Centers CMDCs), Mediators Beyond

Borders, and Neve Shalom Wahat Al Salaam (a 30‐year‐old Israeli peace village of 1/2 Jewish and 1/2 Arab families)

is working on a project addressing this question. The team is helping CMDCs in Acre, Lod and Ramla (four Israeli

"mixed cities" with high Arab and immigrant populations) to document the exciting cross cultural work they are

doing and build their conflict engagement capabilities in a sustainable manner. In the workshop, team members

will discuss the narrative trainings held in Israel and the on‐going capacity building work with the individual

CMDCs. Come participate in interactive demonstrations of cross cultural narrative techniques, led by Sara Cobb,

an international expert in the narrative approach, and have a lively discussion with attendees about the project

and cross cultural lessons learned.

Rachel Wohl, MBB, Annapolis, MD

Sara Cobb, ICAR, Arlington, VA

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

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

Mediation


You Take the High Road; I Take the Low Road: Beyond Positional Bargaining

Most mediations begin with “traditional” Distributive/Competitive/Positional Bargaining ‐‐ a neutral using the bids

as talking or listening points and the "negative motors" of one competitive party wanting more and another

wanting to give less. How do you move parties out of this model? Lawyers seem to know no other way. As

Professor Robert Mnookin reminds us in his Bargaining WithThe Devil, a zero‐sum mind set, can be a negative trap

that thwarts the goal of objective analysis and resolution. A zero sum mind set provides undue opportunity for

negative competition with disputants looking for wins and losses instead of resolution. This interactive panel will

provide a fresh look at positional bidding, exploring other more positive formats and how to transform the zero

sum bargaining to a more informative negotiation. All panel members are Distinguished Fellows in the

International Academy of Mediators (IAM), Super Lawyers and Best Lawyers. They have lectured and presented

extensively on a regional and national level and have previously made well‐received ABA presentations. They

represent pre‐eminent mediation practices from four distinct regions of the country and diverse and novel

approaches to creating “new dialogue” between disputants in this fundamental area where flawed habit emerges

as the rule.

Jerome Weiss, Mediation Inc, Cleveland, OH

Eric Galton, Lakeside Mediation Center, Austin, TX

Susan Hammer, Dispute Resolution Services, Portland, OR

Karin Hobbs, Hobbs Mediation, Salt Lake City, UT


Dealing With Difficult People

We all know difficult people but it is when we have to deal with them in a mediation that our professional skills are

put to test. How do you effectively interact with people whose behavior can negatively impact the road to

settlement? This panel, comprised of a mediator, advocate, in‐house counsel and professor will provide some

guidelines for success in dealing with difficult people. Using an interactive format, the panel will define difficult

people by describing their general characteristics, identify the causes of their irrationality; explore mediator and

advocate responses that work best; and present appropriate and inappropriate strategies to deal with the decision

making process of difficult people.

Ruth Glick, Burlingame, CA

Deborah Masucci, Chartis Insurance, New York, NY

Richard Birke, Salem, OR

Pamela Enslen, Miller Canfield, Grand Rapids, MI


The Use and Misuse of Apology in Mediation

This session will explore numerous issues for mediators and mediation advocates arising out of the variety of

possible meanings and purposes of an apology. Mediation advocates will be challenged to consider numerous

possible goals of an apology and the corresponding content of an apology. Mediators will compare the techniques

they use to encourage apologies and consider ethical quandries for mediators who encourage apologies.

Peter Robinson, Straus Institute for Dispute Resolution, Malibu, Ca

Lee Taft, Taft Solutions, Dallas, TX


Creating a Conflict Revolution: How Mediators Can Help Save the Planet

What is our responsibility as dispute resolvers for the environmental, social, economic and political conflicts that

are occurring around us? Can we apply conflict resolution principles to the inequalities, inequities, and

dysfunctions that fuel chronic political, economic and social conflicts? Are we not implicitly responsible for learning

to address and resolve global conflicts beyond our borders, helping to eliminate their chronic sources, and

contributing to the redesign of conflict generating structures, processes, institutions and practices, so as to prevent

their recurrence? How can mediators and dispute resolution practitioners contribute? And how do we bring these

changes about without recreating the very problems we seek to solve? This presentation will analyze the role

mediators can play in helping to resolve chronic complex global conflicts, and identify ways of acting locally and

internationally to build conflict resolution capacity around the world and help create a "conflict revolution."

Kenneth Cloke, Center for Dispute Resolution, Santa Monica, CA

Poster Presentation

Gridlock on (or off) the Grid

Here's your chance to create gridlock . . . then offer a solution: On one side of a provided "thought bubble" card,

write a message that may cause gridlock. Identify whether you are posing as a party, advocate, expert witness, or

mediator. Flip the card over and reply to or reframe that message with a new message that may help unlock the

parties (again identify whether, this time, you are posing as a party, advocate, expert witness, or mediator). On

the poster, decide where to pin your messages on (or off) the Riskin grid.

Margaret Huff, Margaret Huff Mediation, Nashville, TN


Mediating Class Actions in the Wake of Dukes v. Walmart and Concepcion v. AT & T Mobility

The Supreme Court in April and June of 2011 appears to have upended the requirements for bringing class actions

in either federal courts or in arbitration. What will be the effect of the changes in the law on the mediation of

these complex employment, wage and hour, and consumer disputes? The panel will review developments in lower

courts in the months since the decisions came down and consider the potential effect of the decisions and their

interpretations on mediation practice. Moderated by an experienced mediator of class actions, the panel will

feature four nationally known litigators who have been at the forefront of bringing and defending class actions in

court and in mediating successful resolutions. Two (including the lawyer who argued Walmart before the Supreme

Court) represent plaintiffs and two defendants.

Linda Singer, JAMS, Washington, DC

Barbara Brown, Paul Hastings LLP, Washington, DC

Cyrus Mehri, Mehri & Skalet, PLLC, Washington, DC

Grace E. Speights, Morgan, Lewis & Bockius, Washington, DC

Joseph M Sellers, Cohen, Milstein, Sellers & Toll, Washington, DC


Getting Past Impasse

This interactive panel, which will include audience participation, demonstrations, and a short video excerpt, will

focus on avoiding, employing, and addressing apparent impasse in varied and novel ways to reach resolution.

Each of the panelists has contributed a chapter in the recently published "Definitive Creative Impasse‐Breaking

Techniques in Mediation: When All Else Fails" (Molly Klapper , Ed, New York State Bar Association 2011) and

relevant chapters will form the written materials for the presentation. The panel will explore the role of venting

emotions on impasse; the rules for a mediator to live by to avoid impasse;the cognitive impediments that

together constitute “Client Think” and impede accurate case valuation, but can be overcome; and the particular

problems created when multiple defendants engage in fingerpointing and seek to avoid shouldering an

appropriate risk‐based share of a settlement. This presentation is suitable for sophisticated advocates in mediation

and for mediators who wish to get beyond initial trainings.

Terri Reicher, Terri Roth Reicher, Esq, Pompton Lakes, NJ

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

Laura Kaster, Appropriate Dispute Solutions, Princeton, NJ

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


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

Of late, advocates more consciously and aggressively try to use mediators to gain advantage over the other side.

There seems to be more puffing, posturing, outrageous offers, stonewalling, threatening, and playing the mediator

than ever before. Lawyers have learned to bargain hard or just plain manipulate to “win” the negotiation. They

ask that partisan proposals be presented as the mediator’s, bluff and bully to show toughness, and pry for

confidential information while revealing none. Some lawyers fail to counsel their clients on the legal realities,

leaving that job to the mediator, while pretending this sow’s ear of a case is a silk purse. Through demonstration

and/or video, this session will address how mediators can deal with the advocate’s tricks. We’ll examine ways to

counter the spin without counter‐spinning and tame unproductive tactics. Drawing upon recent research, we’ll

also focus on how mediators can deliver bad news without alienating clients or lawyers or sacrificing neutrality.

Interactive discussion will follow, focusing on complex practice and ethical issues.

Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH

Dwight Golann, Suffolk University Law School, Boston, MA


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

The impasses of civil litigation are as numerous as they are predictable: the parties threaten to walk out, send the

mediator back in to the other side's room to get a "realistic number", or make low/high ball proposals in retaliation

for the other party's miniscule concession. We will present demonstrations of how mediators can deal with

"insulting offers" and "bad faith proposals" using classical, problem solving methods, instead of the directive

techniques that have become associated with the mediation of civil litigation. This session will be a practical skills

seminar about the mediation of positional bargaining using presentations, demonstrations, and interactive

discussions with the audience.

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

Negotiation


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

Negotiators and mediators have hunches about the cadence of the negotiation dance. Listening for music in what

often looks like the noise of negotiation, we have collected both dollar concessions and the elapsed time between

offers in thousands of cases. Using neural networks, we are isolating trends that can be used to plan a dance, or

anticipate the moves of our negotiating partner. In this program, we will explore trends in successful negotiations

as well as those that end in impasse. You will get to guess which it will be based on early dance moves.

Don Philbin, ADRtoolbox.com; Picture It Settled, LLC, San Antonio, TX

Louis Solomon, Cadwalader, New York, NY

Cari Wint, Debevoise & Plimpton, New York, NY


Using Software to Measure and Maximize Negotiation Learning

This poster will summarize the research conducted in collaboration with Thunderbird School of Global

Management professor Karen Walch, PhD that found negotiation simulation planning and management software

allows us to measure and significantly improve student negotiation behavior and demonstrate better results on

their simulation exercises. Analysis of the outcomes from the same negotiation exercise conducted by 250

students in two global, graduate school programs, with and without simulation planning software, indicates that

those with a higher software utilization rate: a) achieved up to 17.5% better results on their negotiation

simulations, and b) improved the mutual gains for both parties by over 10%. These results show that using

software to plan and manage the simulation exercises increases the likelihood that negotiators will plan more

thoroughly and execute their plans more successfully in their negotiations. This leads to the conclusion that

utilizing negotiation planning software in educational and professional environments is a best practice to ensure

effective negotiation.

Marty Latz, ExpertNegotiator Planning & Management Software and Adjunct Prof, Arizona State University College

of Law, Scottsdale, AZ

Rethinking Negotiation Teaching

This poster presentation, conducted by founding editors of the newly launched 谈判 Tán Pàn: The Chinese‐English

Journal on Negotiation (the first academic journal in mainland China dedicated to vigorous, interdisciplinary

examination of the negotiation field in China), describes the results of the Rethinking Negotiation Teaching project,

a major multi‐year initiative to revamp the teaching of negotiation world‐wide, particularly intensive “executive”

courses. Since its inception in 2008, the project has brought together more than 60 of the world’s leading

negotiation scholars and practitioners in a series of collaborative international conferences ‐‐ Rome (May 2008);

Istanbul (October 2009); and Beijing (May 2011) ‐‐ to revise how we think about teaching negotiation both content

and methods. Results to date, with financial support of the JAMS Foundation, include the newly launched Chinese

negotiation journal, two books published by DRI Press at Hamline University School of Law (Rethinking Negotiation

Teaching ‐‐ 2009; and Venturing Beyond the Classroom ‐‐ 2010), as well as a special issue section of Harvard's

Negotiation Journal (April 2009). A third book is expected in early 2012.

James Coben, Hamline University School of Law, Saint Paul, MN

Christopher Honeyman, Convenor Conflict Management, Washington, DC

Necessary Games: The Evolution and Natural History of Negotiation

Games people commonly play in negotiations and in mediation, such as ultimatums, posturing, theatrics,

positional bargaining, and deceptions, are typically thought to be largely unnecessary, disconcerting, and

anachronistic throwbacks to more primitive styles of negotiation best cured by appeals to reason and logic. Game

playing is taken as an affront to more “reasoned” modern approaches prevalently taught and practiced, but

continues because they still serve an essential evolutionary purpose. Likewise, the modern “reasoned” approach

to negotiation is being questioned in the wake of recent studies in neuroscience and cognitive psychology, with

greater awareness of the “predictably irrational” factor that gives rise to game playing and is present in peoples’

decision making. This compels a critical review of the working assumptions of the sufficiency of the rational

interest based models of negotiation. Understanding of the natural history of behaviors, rituals, strategies,

techniques and skills that have evolved to manage conflict through the centuries is essential. This workshop will

integrate theory and practice by proposing a conceptual frame for the understanding of that natural history and

the strategic application of skills and techniques borrowed from each approach to enhance practice effectiveness

in every dispute and issue context.

Robert D. Benjamin, Mediation & Conflict Management Svcs, Portland, OR


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

President Obama's mediation training and negotiation skills have not succeeded in creating the centrist coalition

that he sought, or even a reliable process leading to negotiated agreements on major legislative proposals. Can a

political leader simultaneously act as a good‐faith neutral facilitator? What are the negotiation skills needed if one

or both parties refuse integrative solutions, or have as a central interest frustration of the process itself? Is the

Office of the President one of Negotiator‐in‐Chief? In the current political environment, are the interests of a

critical stakeholder ‐‐ the American public ‐‐ being effectively represented? What lessons are learned from

negotiation efforts that seek to create consensus, yet that seem to have resulted in increased polarization, lack of

trust, and erosion of respect among the negotiators?

F. Peter Phillips, Business Conflict Management LLP, Montclair, NJ

Lawrence Susskind, Consensus Building Institute, Cambridge, MA

Peter Adler, Keystone Center, Keystone, CO

Margaret Shaw, JAMS, New York, NY


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

This provocative presentation focuses on several new and highly innovative approaches to understanding,

managing, and resolving conflict. Particular attention is given to some simple game‐theoretic systems that can be

used to manage and resolve a wide variety of disputes and difficult negotiations, and that provide insight into

some of the basic inefficiencies associated with traditional ADR. Consideration is also given to a system grounded

in decision theory that uses interactive visualization and social production techniques to support coordinated

deliberation among stakeholders in a decision. All of these various systems can be accessed online, creating

opportunities as well as challenges for ADR practitioners and legal professionals. A diverse panel of experts

considers the significance of these sorts of systems from an academic, legal, and information‐technology

perspective.

Steven J. Brams, New York University Department of Politics, New York, NY

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

Marc Lauritsen, Capstone Practice Systems, Harvard, MA

Practice Development and Management


Women in ADR

The Women in ADR panel will discuss recent research on the number of women selected as arbitrators and mediators and the types of cases they are appointed to handle. The panel will discuss activities of the major ADR providers to increase the number of women appointed to cases filed at their organizations. The panel will discuss why women are selected and suggest ways women can improve the likelihood of selection. Finally, the panel will be a Forum for women to express their views about the direction of the Section’s efforts to increase the appointment of women as mediators and arbitrators. Sandra Partridge, American Arbitration Association, New York, NY

Harrie Samaras, ADR & Law Offices of Harrie Samara LLC, West Chester, PA

Kimberly Taylor, JAMS, New York, NY


ABA's Got Talent...Building an ADR Practice

Join us for an energizing game show format where we feature talent from the ABA‐ADR section that will inform

and entertain the audience with ways to grow an ADR practice. During this session we will bring ideas and proven

techniques which address specific topics related to growing an ADR practice, including: How niche marketing has

helped to grow your practice; speaking/educational engagements that yield results; how tv/radio and Social Media

can positively impact a practice; using ADR service providers and the ABA‐ADR Section to grow your practice;

Getting selected (Corporate Counsel & Insurance Company Representatives); collaborating with businesses and HR

departments (Corporate Counsel & Mediator). Our panel will include experienced mediators, arbitrators, as well

as corporate counsel, insurance representatives and a legal marketing professional, who are diverse in their

organizational perspectives, experience, gender, race, ethnicity and geography. The goal of this session is to equip

the audience members with ideas they can take back to their practice and immediately implement, while at the

same time promoting the value of ADR process. The session will wrap up with the audience selecting the best

talent who provided the most creative ideas to grow an ADR practice.

Peggy Foley Jones, Giffen & Kaminski, LLC, Cleveland, OH

Judith Bodenhamer, Revenue Resources, Independence, OH

Max Factor III, Factor ADR, Los Angeles, CA

Peter Michaelson, Michaelson ADR Chambers, LLC, New York, NY

David Taylor, Bradley Arant Boult Cummings LLP, Nashville, TN

Daniel Yamshon, Daniel Yamshon Arbitration and Mediation, Sacramento, CA

Mari Frank, Mari J. Frank, Esq. & Associates, Laguna Niguel, CA

Jeff Kichaven, Jeff Kichaven Mediation, Los Angeles, CA

harles Denton, Barnes & Thornburg LLP, Grand Rapids, MI

Althea Garvey, Chartis Insurance, Los Angeles, CA

Amy Hearns, Grange Insurance, Columbus, OH

Harold Coleman, Jr., Harold Coleman Jr. Ltd., San Diego, CA

Deborah Rothman, Deborah Rothman, Esq., Los Angeles, CA

Representing Clients/Advocacy


Designing Dispute Resolution Processes according to the Needs of Clients.

The presentation will include a panel discussion and interactive discussion centered around the attached chart:

"Designing for Resolution." The following topics will be covered: gathering information to determine the

appropriate dispute resolution procedure for a client, designing the process to fit the dispute, obtaining informed

consent of the client to employ a particular form of dispute resolution, and using interest based negotiation skills

in an adversarial climate.

Lawrence R. Maxwell, Jr., Attorney‐Mediator‐Arbitrator, Dallas, TX

Sherrie R. Abney, Law Offices of Sherrie R. Abney, Carrollton, TX

Norman Solovay, McLaughlin & Stern, LLP, New York, NY


The Well Wrought ADR Clause ‐ Worth It's Weight in Gold! How to Draft the Right Clause for Your Client's Next Deal.

An ADR clause is essentially a contract within a contract that creates a dispute resolution mechanism the parties

intend to use in the event a serious problem arises between or among them. In a positive sense, an ADR clause

can harness the enormous efficiencies available from the full panoply of ADR processes, and in a negative sense,

an ADR clause can create unfortunate surprises for you and your client. For these reasons, an ADR clause can be

more important to your client’s ultimate satisfaction with a contract, and your drafting work, than any other

provision in the contract. This program will review and discuss: recent cases interpreting ADR clauses in terms of

what has worked, what has not, and the law of unintended consequences; drivers in the drafting process; and

several common ADR clauses. Additionally, the presenters will discuss what could be done on behalf of a client in

the context of several hypotheticals.

Kendall Reed, Alternative Resolution Centers, Redondo Beach, CA

Rebecca Callahan, Calahan Dispute Resolution, Newport Beach, CA

Paul Dubow, Arbitration and Mediation Offices of Paul Dubow, San Francisco, CA

Eric van Ginkel, Arbitration and Mediation Offices of Eric van Ginkel, Los Angeles, CA


Incentives for Counsel to Use ADR More Aggressively

A panel of current and former in‐house attorneys will discuss incentives for outside firms to use ADR more

aggressively. Studies suggest that the use of mediation earlier in the life of a claim results in significant cost and

time savings. This panel will provide concrete examples of how to provide incentives for the early use of ADR to

everyone’s benefit. The panel will first review reasons for utilizing ADR tools early on in the life of a claim. This

discussion will be followed by a conversation about the best methods for resolving claims earlier – whether

through the use of multi‐step ADR clauses, alternative fee agreements, settlement counsel, or other tools.

Erin Gleason Alvarez, Chartis, Brooklyn, NY

David H. Burt, E.I. du Pont de Nemours and Company, Wilmington, DE

B. Rose Miller, ADR Solutions, LLC, Atlanta, GA


The Lawyer As Conflict Manager

This presentation will demonstrate the immense practical value an understanding of interpersonal conflict

management principles and skills have in the practice of law in working with other lawyers, colleagues, and clients.

In particular, this presentation will explore the role conflict escalation cycles and face‐saving play when dealing

with one’s counterparts in litigation. This presentation examines case studies involving organizations that have

dramatically reduced legal costs, among other benefits, by abandoning a solely legalistic approach to conflict and

embracing conflict management principles. This presentation will also address the role of interpersonal conflict

skills in working with clients. In this program, the presenters will discuss how this course, based on transformative

conflict management principles, equips attorneys for improved interaction with their clients and a more effective

representation experience.

Michael Colatrella Jr., University of the Pacific, McGeorge School of Law, Sacramento, CA

Jody Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY

Peter Miller, Mediation Center of Dutchess County, Inc., Poughkeepsie, NY


Strategies for Getting Lawyers to Negotiate and Mediate Sooner and Better

The Section’s new Task Force for Early Dispute Resolution (EDR) will present its work to encourage lawyers to

engage in negotiation and mediation at the earliest appropriate time. Too often, lawyers delay serious efforts to

resolve disputes, often because they are trapped in a “prison of fear” about suggesting negotiation or mediation.

This program will describe why lawyers feel trapped even when they know that it would be in their clients’

interests to negotiate and that the case will probably settle eventually. It will describe how they can break out of

this prison and it will provide materials to help interested lawyers, parties, and mediators do so. The program will

describe early case assessment, a critical initial step, as well as efficient exchange of information, engagement of

neutrals as appropriate, and other steps needed to enable productive negotiation. Panelists will describe their

successful efforts to use EDR procedures. The program will present hypothetical situations and invite the audience

to discuss ideas to use EDR. It will also invite audience members to describe real problems from their own

experiences and brainstorm ideas to solve these problems.

John Lande, University of Missouri School of Law, Columbia, MO

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

Joan Stearns Johnsen, Albany Law School, Albany, NY

Research


Mediation Research Mini Conference ‐‐ Session 1 of two consecutive sessions: Looking Backward; Mediation Research as of 2011

We all have a lot of ideas and beliefs about how mediation ought to be done but how much of what we teach and do in practice is evidence based? Are some of the things we believe good mediators do proven to be wrong? What do we really know about what “works?” A full morning of two consecutive sessions devoted entirely to empirical research on mediation will start with “LOOKING BACKWARD,” in which well known researchers will give attendees a concise introduction to the history of mediation research and overview of current research.

Gary Weiner, Moderator, Court of Appeal, First Appellate District, San Francisco, CA

Ken Kressel, Professor, Rutgers University, Psychology Department, Newark, NJ

Dean Pruitt, SUNY Buffalo Distinguished Professor Emeritus, Institute for Conflict Analysis and Resolution, George

Mason University, Arlington, VA

James Wall., UM Curators' Distinguished Teaching Professor of Management, Trulaske College of Business,

University of Missouri, Columbia, MO

Craig A. McEwen, Daniel B. Fayerweather Professor of Political Economy and Sociology and Senior Faculty Fellow in

the Center for the Common Good, Bowdoin College, Brunswick, ME


Mediation Research Mini Conference ‐‐ Session 2: Looking Forward

LOOKING FORWARD, the second of two consecutive sessions, will be a facilitated discussion on the future of mediation research designed to pave the way forward. How best can empirical research help mediators become more effective at what they do? What types of questions should we ask? How do we disseminate it: an annual conference, a dedicated journal? The panelists, a group of leading interdisciplinary researchers, practitioners and academics all, hope this session will serve as the beginning of a new era in mediation research that moves us from reliance on theory and belief to a practice built on a solid foundation of reliable, empirical research on mediator interventions that have been proven to help handle conflict. Phillip Glenn, Emerson College, Professor of Communication Studies, Boston, MA Carolyn Penny, International Law Programs at University of California, Davis, Davis, CA Tania Sourdin, Foundation Chair and Director of the Australian Centre for Court and Justice System Innovation (ACCJSI) at Monash University, Melbourne Area, Australia Roselle Wissler, Arizona State U. O'Connor College of Law, Tempe, AZ Nancy Yeend, Silicon Valley Mediation Group, Los Altos, CA

Skills‐Development Programs


This is Your Brain on Mediation: Reflections on Neuroscience and Practical Implications for Mediators as well as Negotiators

This truly advanced workshop will apply recent discoveries in the field of neuroscience to the practice of mediation

and negotiation in a wide variety of case types with a particular emphasis on the early stages of mediation and

negotiation. There is no denying the fascination with what we are learning through neuroscience about the human

brain, how it guides our behaviors and how it impacts the way we make decisions. This workshop will be led by

two nationally recognized ADR leaders and experienced trainers. Participants will explore several key insights

derived from studies of the brain, as well as behavioral economics and cognitive behavioral psychology. This

workshop will connect several discoveries including those involving the limbic system, prefrontal cortex, mirror

neurons, and the functions of the left and right hemispheres of the brain as they impact cooperation, empathy and

problem solving. They will also explore how these discoveries can serve as a basis for the utility of specific

mediator skills including the delivery of opening statements, gathering information, reflective practice and agenda

development.

Daniel Weitz, NYS Unified Court System ‐ Office of ADR, New York, NY

Cathy Costantino, Federal Deposit Insurance Corporation, Arlington, VA



What is the impact of culture on the brain, on our biological drivers and social behaviors? Is there a way to

discriminate what is cultural, individual, or contextual in our behaviors? How does this apply to dispute resolution?

This workshop will present culture in a new light and in a new context. The workshop is intended to help

participants develop an awareness of their own cultural preferences, and discover possible cultural influences that

may shape their preferred style of conflict resolution, or their behavior when acting as a neutral or as counsel in a

cross‐cultural dispute. This workshop will also present exciting new discoveries in neuroscience and cognitive

science, explaining key different pathways in emotional, cognitive and social neural assemblies. It will identify

differences and commonalities between cultures from a neurobiological perspective. A “neuro‐compass” will

finally be presented as a possible tool that may help ADR professionals to prepare for and plan their interventions

in inter‐cultural disputes. This workshop is intended to help all ADR professionals who have to deal with cultural

diversity to reflect upon their practice, develop new skills and improve their self‐awareness.

François Bogacz, Neuroawareness Consulting Services, San Diego, CA

Jeremy Lack, JAMS International, Geneva, GE Switzerland


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

Current research by scientists, including Dr. Joseph LeDeux, a neuroscientist at New York University, suggests that

the moment a person becomes defensive, the complex, problem‐solving part of the brain shuts down. In her book,

Taking the War Out of Our Words, Sharon Strand Ellison outlines how traditional communication methods

systemically create and accelerate conflict, consistently prompting defensive reactions. She then presents the

theory and practice for a new paradigm, Powerful Non‐Defensive Communication. The ability to diffuse

defensiveness can enhance the skills of dispute resolution professionals. In this session, participants will (a) learn

about the physiology of defensiveness, and (b) gain the ability to identify subtle ways that they may be asking

questions and making statements that prompt defensive reactions in clients, law students, and/or other

professionals in the field of law. Second, Ellison and Kaas will present non‐defensive skills, focusing on how to best

use the core elements of communication — questions, statements, and predictions — in ways that can prompt

people to instantly drop their defenses. Third, Ellison and Kaas will demonstrate how the process works, using

actual situations. Finally, Kaas will discuss her research into how lawyers and mediators are, and can, use non‐

defensive communication in their practices.

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

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



An interactive program will address a series of hypothetical scenarios arising in arbitration before and during the

evidentiary hearinging , all of which require immediate action by the arbitrator. Some scenarios are not covered

by arbitration law or rules.The problems will challenge, engage and inform the audience and prepare arbitratorso

for difficult situations. The scenarios ae applicable to contractual arbitrataion in all areas of the law. The audience

will be asked to propose solutins before the panelists comment. Each scenario will be addressed briefly to permit

discussion of many diverse situations. Time will be reserved ofr the audience to propose other scenarios. All

panelists are experienced commercial arbitrators.

William Fitzgerald, American Arbitration Association, Los Angeles, CA

Richard Chernick, JAMS, Los Angeles, CA

Hon. Kathleen Roberts (ret.), JAMS, New York, NY


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

Of late, advocates more consciously and aggressively try to use mediators to gain advantage over the other side.

There seems to be more puffing, posturing, outrageous offers, stonewalling, threatening, and playing the mediator

than ever before. Lawyers have learned to bargain hard or just plain manipulate to “win” the negotiation. They

ask that partisan proposals be presented as the mediator’s, bluff and bully to show toughness, and pry for

confidential information while revealing none. Some lawyers fail to counsel their clients on the legal realities,

leaving that job to the mediator, while pretending this sow’s ear of a case is a silk purse. Through demonstration

and/or video, this session will address how mediators can deal with the advocate’s tricks. We’ll examine ways to

counter the spin without counter‐spinning and tame unproductive tactics. Drawing upon recent research, we’ll

also focus on how mediators can deliver bad news without alienating clients or lawyers or sacrificing neutrality.

Interactive discussion will follow, focusing on complex practice and ethical issues.

Marjorie Aaron, University of Cincinnati College of Law, Cincinnati, OH

Dwight Golann, Suffolk University Law School, Boston, MA


Getting Engaged: Learning Conflict Theory and Practice through Kinesthetic Experience

This session will feature work from the forthcoming ABA book Dancing at the Crossroads on physical/movement‐

based approaches for teaching conflict theory and practice. Kinesthetic or physical strategies foster awareness,

flexibility and creativity. They shift negative perceptions and intractability. Because they tap a human universal ‐‐

physical experience, these strategies are helpful in informing work across cultures. Disputes always have physical

dimensions, yet many approaches to intervention and pedagogy focus primarily on mental, analytic dynamics.

When the body is understood as the site of disputing, neuroscientific findings directly inform intervention. For

example, using movement‐based language in intervention can be helpful because mirror‐neurons build capacities

for new behaviors even in observers. The session draws on seven years of research/practice exploration.

Participants in the session will learn how mediators and negotiators from multiple countries and areas of practice

have implemented a range of tools to enhance their teaching and practice. They will experience ways that

physical/expressive approaches can deepen understandings of complex disputes, enhance third party

effectiveness, and catalyze positive turning points. Four experienced legal educators/dialogue practitioners will

give examples of how this work has deepened theoretical understandings of conflict and enhanced their practices.

Michelle LeBaron, University of British Columbia Faculty of Law, Vancouver, British Columbia Canada

Andrea Schneider, Marquette University Law School, Milwaukee, WI

Andrew Acland, Andrew Acland & Associates, Wotton‐under‐Edge, Gloucestershire United Kingdom (Great Britain)

Kenneth (Ken) Fox, Hamline University, St Paul, MN

Sharon Press, Hamline University‐‐Dispute Resolution Institute, St Paul, MN


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

The impasses of civil litigation are as numerous as they are predictable: the parties threaten to walk out, send the

mediator back in to the other side's room to get a "realistic number", or make low/high ball proposals in retaliation

for the other party's miniscule concession. We will present demonstrations of how mediators can deal with

"insulting offers" and "bad faith proposals" using classical, problem solving methods, instead of the directive

techniques that have become associated with the mediation of civil litigation. This session will be a practical skills

seminar about the mediation of positional bargaining using presentations, demonstrations, and interactive

discussions with the audience.

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

Technology


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

Today’s technology is enabling billions to people to interact with each other around the world. Just like the face‐to‐

face world, disputes arise in these interactions, and they must be resolved in a low‐cost, efficient manner. eBay

and PayPal, for example, currently handle 60 million low‐value, high‐volume disputes each year, and each needs to

be resolved quickly and fairly to enable continued growth in the marketplace. In response to this need, the United

Nations Commission on International Trade Law (UNCITRAL) has created a Working Group to develop

recommendations for a fair, low‐cost, cross‐jurisdictional online dispute resolution (ODR) system for the resolution

of disputes. This system has the potential to bring justice to many millions of online users who cannot get fair

redress through currently available judicial channels because legal and court costs make the enforcement of such

low‐value, high‐volume claims impractical. This new ODR system may also may serve as the foundation for other

global redress systems, for matters ranging from privacy to intellectual property to even global peacemaking.

Colin Rule, Modria.com, San Jose, CA

Vikki Rogers, Institute for International Commercial Law, White Plains, NY


Using ADR for Discovery Practice in a Digital Age

Electronic discovery and judicial budget cuts are driving forces behind the need for litigants and courts to use ADR

to resolve discovery disputes, particularly disputes involving "electronically stored information (ESI)." Mediators,

special masters, arbitrators, discovery referees or liaisons who are trained and experienced in the law and

technology involving ESI are referred to as "e‐neutrals." This presentation is designed to introduce the concept of

e‐neutrals, the growing national trend to use e‐neutrals and how to become an e‐neutral. The benefits of

becoming an e‐neutral include an innovative method for expanding an ADR practice, enhancement of an existing

ADR practice routinely addressing ESI issues, and/or developing a court program to offer these services. This

cutting edge application of ADR promotes temporal and economic efficiencies for case management, which in

turns, promotes access to justice.

Allison Skinner, Sirote & Permutt PC, Birmingham, AL

Peter Vogel, Gardere, Wynne & Sewell, Dallas, TX

John DeGroote, John DeGroote Services, LLC, Dallas, TX

Mediating via Skype

You can conduct a mediation session using Skype. Doing so provides several advantages: 1) cost savings with

respect to travel; 2) the parties and counsel can remain in their respective offices, which is both familiar territory

and allows them to conduct other productive work during caucuses (this point may be counter‐intuitive, but is a

significant plus); 3) eliminating any sense of "home court" advantage with respect to location; and 4) opening one's

practice to a wider audience. This presentation is based on the presenter's experience using Skype to conduct a

ten hour mediation session among four sites across the country.

Kendall Reed, Alternative Resolution Centers, Redondo Beach, CA


Security on Steroids

This session will discuss a wide range of issues concerning the security of data held by your law firm or company or

submitted by any party to an arbitration or mediation, a danger which has become much more complicated over

the last several years: (i) You have to secure confidential data on your firm’s network, at your home, in the cloud,

on your smartphone, and on the road; (2) As data breaches proliferate, understanding the essentials of security is

critical; (3) You will be shocked with real‐life stories of data breaches (yes, in law firms too); and (4) You will learn

how to build multiple redundant defenses to protect your data through technology, policies and training.

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

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

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