cpr honored by mediation organization

AlternativesTO THE HIGH COST OF LITIGATION

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 7 JULY/AUGUST 2008

AlternativesAlternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute forConflict Prevention & Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.

Editorial correspondence should be addressed to Alternatives, International Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York,NY 10022; E-mail: [email protected].

Copyright © 2008 International Institute for Conflict Prevention & Resolution. All rights reserved. Reproduction or translation of any part of this work beyond that per-mitted by Sections 7 or 8 of the 1976 United States Copyright Act without permission of the copyright owner is unlawful. Request for permission or further informationshould be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030-5774; tel: 201.748.6011, fax: 201.748.6008; orvisit www.wiley.com/go/permissions.

For reprint inquiries or to order reprints please call 201.748.8789 or E-mail [email protected].

The annual subscription price is $190.00 for individuals and $253.00 for institutions. International Institute for Conflict Prevention & Resolution members receive Alter-natives to the High Cost of Litigation as a benefit of membership. Members’ changes in address should be sent to Membership and Administration, International Institutefor Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York, NY 10022. Tel: 212.949.6490, fax: 212.949.8859; e-mail: [email protected]. To order,please contact Customer Service at the address below, tel: 888.378.2537, or fax: 888.481.2665; E-mail: [email protected]. POSTMASTER: Send address changes toAlternatives to the High Cost of Litigation, Jossey-Bass, 989 Market Street, 5th Floor, San Francisco, CA 94103-1741.

Visit the Jossey-Bass Web site at www.josseybass.com. Visit the International Institute for Conflict Prevention & Resolution Web site at www.cpradr.org.

TO THE HIGH COST OF LITIGATION

Publishers:Kathleen A. BryanInternational Institute for Conflict Prevention and Resolution

Susan E. Lewis John Wiley & Sons, Inc.

Editor: Russ BleemerJossey-Bass Editor: David FamianoProduction Editor: Ross Horowitz

130 AlternAtives vol. 26 no. 7 july/August 2008

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

AlternativesAlternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute for Conflict Prevention & Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.

Editorial correspondence should be addressed to Alternatives, International Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York, NY 10022; E-mail: [email protected].

Copyright © 2008 International Institute for Conflict Prevention & Resolution. All rights reserved. Reproduction or translation of any part of this work beyond that permitted by Sections 7 or 8 of the 1976 United States Copyright Act without permission of the copyright owner is unlawful. Request for permission or further information should be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030-5774; tel: 201.748.6011, fax: 201.748.6008; or visit www.wiley.com/go/permissions. Indexed by Current Abstracts (EBSCO).

For reprint inquiries or to order reprints please call 201.748.8789 or E-mail [email protected].

The annual subscription price is $190.00 for individuals and $253.00 for institutions. International Institute for Conflict Prevention & Resolution members receive Alternatives to the High Cost of Litigation as a benefit of membership. Members’ changes in address should be sent to Membership and Administration, International Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York, NY 10022. Tel: 212.949.6490, fax: 212.949.8859; e-mail: [email protected]. To order, please contact Customer Service at the address below, tel: 888.378.2537, or fax: 888.481.2665; E-mail: [email protected]. POSTMASTER: Send address changes to Alternatives to the High Cost of Litigation, Jossey-Bass, 989 Market Street, 5th Floor, San Francisco, CA 94103-1741.

Visit the Jossey-Bass Web site at www.josseybass.com. Visit the International Institute for Conflict Prevention & Resolution Web site at www.cpradr.org.

TO THE HIgH COST OF LITIgATION

Publishers:Kathleen A. Bryan International Institute for Conflict Prevention and Resolution

susan e. lewis John Wiley & Sons, Inc.

Editor: russ BleemerJossey-Bass Editor: David FamianoProduction Editor: ross Horowitz

KAtHleen A. BryAn Chair, Editorial Board CPR Institute New York

joHn j. BoumA Snell & Wilmer Phoenix

jAmie BroDer Paul, Hastings, Janofsky & Walker Los Angeles

A. stepHens ClAy Kilpatrick Stockton Atlanta

CAtHy A. CostAntino Federal Deposit Insurance Corp. Washington, D.C.

roBert A. Creo Impartial Dispute Resolution Services Pittsburgh

lAurA eFFel Jackson Lewis LLP Richmond, VA

lAwrenCe j. Fox Drinker, Biddle & Reath Philadelphia

mArC gAlAnter University of Wisconsin Law School Madison, Wis.

wHitmore grAy Fordham University School of Law/University of Michigan Law School New York

jeFF KiCHAven Jeff Kichaven, A Professional Corporation Los Angeles

jeFFrey Krivis First Mediation Corp. Los Angeles

HArry n. mAzADooriAn Quinnipiac Law School Hamden, Conn.

CArrie menKel-meADow Georgetown University Law Center Washington, D.C.

roBert H. mnooKin Harvard Law School Cambridge, Mass.

pAul j. moDe jr. Citigroup New York

gerAlD F. pHillips Los Angeles

jAmes m. ringer Clifford Chance New York

A. jAmes roBertson ii Superior Court of California San Francisco

nAnCy rogers Ohio State University College of Law Columbus, Ohio

DAviD l. sAnDBorg City University of Hong Kong Hong Kong

FrAnK e.A. sAnDer Harvard Law School Cambridge, Mass.

irene C. wArsHAuer Office of Irene C. Warshauer New York

roBert s. wHitmAn Seyfarth Shaw LLP New York

gerAlD r. williAms J. Reuben Clark Law School Brigham Young University Provo, Utah

editorial Board

Cpr HonoreD By meDiAtion orgAnizAtion

The International Institute for Conflict Prevention and Resolution is receiving the American College of Civil Trial Me-diators’ 2008 Institutional Achievement Award. The award will be presented at a July 21 awards ceremony in Camden, Maine.

CPR President Kathy Bryan will ac-cept the award on CPR’s behalf, which will be held during the civil trial mediator group’s annual retreat.

The Orlando, Fla., professional group has presented awards in several categories annually since 1996. The previous insti-tutional achievement award winner was presented to the Association for Conflict Resolution in 2003. Other institutional winners have been the U.S. Postal Ser-vice’s National Redress Task Force, and the American Bar Association’s Section of Dispute Resolution.

In addition to the institutional award, Frank E.A. Sander, Bussey Professor of Law Emeritus at Harvard Law School’s Program on Negotiation will be present-ed with a lifetime achievement award.

Sander first developed the so-called multidoor courthouse—the concept that courts can adapt themselves to address disputes with a variety of resolution

mechanisms. Sander was recognized by the CPR Institute, which publishes Al-ternatives, with a special award for distin-guished contributions to ADR in 1989; he also was a co-recipient of a book award in 1985. Sander is a member of Alterna-tives’ editorial board.

Prior to Sander, the college last year presented its lifetime achievement award to Fordham Law School dean John D. Feerick, and, in 2006, to JAMS’ Washington, D.C., neutral Marvin E. Johnson. Q

summer online: Cpr trAining At westlegAleDCenter.Com

The CPR Institute has archives of four January 2008 Annual Meeting sessions, and a May webcast, available on demand for continuing legal education credit at WestLegalEdcenter.com, where CPR is a content partner in providing live and on-demand CLE training.

Individuals at CPR members receive a 25% discount off the listed prices auto-matically when they register with West to take an online course.

The four seminars recorded at CPR’s

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Cpr news • Cpr news • Cpr news


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vol. 26 no. 7 july/August 2008 AlternAtives 139


Annual Meeting in New York debuted online in March. In addition, an ar-chive version of CPR’s first live web-cast, “Is Manifest Disregard Dead Af-ter Hall Street Associates?” held on May 7, was added in the same on-demand format. New courses are on the way.

All the sessions are available through the Training page at www.cpradr.org, or directly from http://westlegaledcen-ter.com by searching on CPR Institute.

In addition, West also is an autho-rized provider of International Dispute Negotiation, CPR’s free podcast series hosted by Michael McIlwrath. See item below.

West’s CPR offerings are a new CPR member benefit. The West Le-galEdcenter provides access for individ-uals at CPR’s members who are unable to travel to a CPR meeting or training event. Individuals at CPR members should register at the West site, and add the CPR Institute to their West profile to receive special pricing.

The online course offerings provide full CLE credit in various jurisdictions, up to about two dozen states per course. More are being added.

The webcast focused on a hot top-ic, whether the U.S Supreme Court’s March Hall Street Associates L.L.C. v. Mattel Inc. decision barring contract-ing for judicial review under the Fed-eral Arbitration Act cut off challenges to arbitration awards based on the longstanding judicial standard, mani-fest disregard of the law. The issue is debated by Jeffrey Barist, a New York partner at Milbank, Tweed, Hadley & McCloy LLP, and the former chair of the firm’s National Litigation Depart-ment; Timothy G. Nelson, a New York litigation partner at Skadden, Arps, Slate, Meagher & Flom LLP, and Hans Smit, Stanley H. Fuld Profes-sor of Law, Columbia University Law School, New York.

Also, among the four CPR An-nual Meeting courses, West is featuring “Conflict Management as an Attribute of Leadership,” presented by Tim A.

Flanagan and Craig E. Runde, of Eck-erd College’s Leadership Development Institute, in St. Petersburg, Fla. Q

lorrAine BrennAn joins Cpr As senior viCe presiDent

The CPR Institute announced this spring that arbitration veteran Lorraine M. Brennan was named senior vice president.

Brennan is familiar to practitioners from her service as the ICC Interna-tional Court of Arbitration’s North American director of arbitration and ADR. In that role, she acted as adviser to the International Court of Arbitra-tion at the International Chamber of Commerce’s Paris headquarters.

More recently, Brennan has been a partner in the New York office of Kilpatrick Stockton, LLP. She focused her legal practice on international ar-bitration and dispute resolution, and was director of the firm’s International Arbitration Group.

Brennan will be responsible for ad-vancing CPR’s programs and initia-tives worldwide. She will be leading CPR’s international expansion and be responsible for running events, meet-ings, training, and key committees.

A speaker and author on interna-tional arbitration and dispute resolu-tion, Brennan is one of eight U.S. members of the Nafta 2022 Advisory Committee on Private Commercial Disputes. She is a member of the American Branch of the International Law Association’s executive board, and a member of the American Society of International Law.

Brennan is an adjunct professor at Cornell University Law School in Ithaca, N.Y., and Georgetown Univer-sity Law School, teaching International Business Transactions, and Internation-al Commercial Arbitration, respectively. She is a visiting professor at Shantou University in Shantou, China, where she teaches an intensive course in In-

ternational Business Transactions and Dispute Resolution.

She is a member of two New York City Bar Association committees, the International Commercial Disputes Committee, and the Alternative Dis-pute Resolution Committee, as well as a member of the Advisory Board of the Institute for Transnational Arbitration and the International Bar Association. She is a fellow of the American Bar Foundation and the Center for Interna-tional Legal Studies.

Brennan, who lives in New York, received a B.A. degree from Cornell Uni-versity; a J.D. from Suffolk University Law School in Boston; a Masters of Arts in Law and Diplomacy from Fletcher School of Law & Diplomacy at Tufts University, in Medford, Mass., and a Diplome d’Etudes Superieure from the Institute Universitaire des Hautes Etudes Internationales in Geneva, Switzerland.

“I am delighted to join CPR,” Bren-nan noted in a statement. “CPR is well known for its impressive roster of members and its first-rate programs on dispute resolution. I am very much looking forward to becoming a part of their team.”

CPR President Kathy Bryan said, “I am pleased to welcome such an accom-plished and highly respected member of the international arbitration com-munity to our team.” Bryan added, “We know she will contribute greatly to our mission of spearheading quality and innovation in international commercial conflict management.” Q

Former BAxter litigAtion Counsel is new Cpr senior ConsultAnt

CPR has added another ADR veter-an this spring: Thomas L. Aldrich, of Glenview, Ill., has joined as a senior consultant.

Aldrich has worked for more than 30 years as a commercial litigator,

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in private practice and as an inside corporate attorney. Long active in CPR initiatives, he served as associ-ate general counsel and chief litiga-tion counsel for Baxter Healthcare, in Deerfield, Ill., from 1998 until 2006. Aldrich managed Baxter’s glob-al commercial and products liability litigation, including its mass tort and class action products, securities, and wholesale pricing litigation.

From 1989 until 1998, Aldrich was a partner at Schiff Hardin & Waite in Chicago, where his practice was con-centrated in product liability, insurance coverage and environmental law. He also served as outside general counsel for Eljer Industries from 1989 until 1993.

In the 1980s, he was assistant gen-eral counsel of Household Manufactur-ing, and served as staff antitrust counsel for Household Merchandising. Both companies were wholly-owned subsid-iaries of Household International.

Aldrich is a 1970 graduate of North-western University—B.A., Political Sci-ence—and a 1973 graduate of North-western University School of Law in Chicago. He practiced antitrust and trade regulation law with the Chicago firm of Chadwell & Kayser from 1973 until 1981. He is a member of the Il-linois bar and admitted to practice in the U.S. District Court for Northern Illinois, 7th Circuit Court of Appeals, and the U.S. Supreme Court.

Since retiring from Baxter in 2006, Aldrich has established a private arbitra-tion and mediation practice. He teaches a course on negotiation and conflict management at Lake Forest Graduate School of Management, in Illinois. In addition, he has published and spoken widely on issues relating to alternative dispute resolution, products liability, class actions, insurance coverage and relations between inside and outside counsel.

In June, since joining CPR, he ap-peared as a panelist at the Greater New York Chapter Association for Conflict Resolution’s Sixth Annual Conference

at the Benjamin N. Cardozo School of Law in New York. He appeared on a panel titled “Can Arbitration Be Saved from the Quagmire of Disclosure?”

Aldrich is past chairman of the Spe-cial Education District of Lake County, Ill., Foundation, and a board member of the Chicago Master Singers. Q

Cpr Dr serviCes reDuCes meDiAtion Fees, eFFeCtive immeDiAtely

CPR’s Dispute Resolution Services has reduced its mediation selection fee to $1,500 per case—$750 per party.

This reduction was made in an ef-fort to promote greater mediation use, in line with the principles governing CPR since it the nonprofit was formed in 1979.

The move also reflects the increased mediation use by CPR member or-ganizations. Most recently, in a 2006 CPR survey of 126 leading U.S. corpo-rate counsel and law firms, respondents overwhelmingly embraced mediation as the most powerful method to resolve complex business disputes outside of court. Respondents cited cost savings and speed as the primary reasons for their preference.

More information on Dispute Resolution Services work is available at www.cpradr.org, or by contacting CPR’s Otto Franco at [email protected] or at (212) 949-6490. Q

Cpr’s FAll event: tHe CorporAte leADersHip AwArDs Dinner

The CPR Institute is honoring Micro-soft Corp.’s Legal and Corporate Af-fairs Department, and Brad Smith, the Redmond, Wash. company’s senior vice president, general counsel and corporate secretary, at its fifth annual Corporate Leadership Award Dinner in October.

Donor opportunities for the 2008

award are available in four levels.The software giant and its GC are

being honored for their commitment to conflict resolution management prac-tices, and their innovative ADR use. Full details on the honorees is avail-able at CPR News, 26 Alternatives 58 (March 2008).

This year’s event will be held on Thursday, Oct. 2, at Cipriani 42nd Street in New York. The black-tie din-ner will be preceded by a private, invita-tion-only VIP reception.

The donor levels are:

• Benefactor—$30,000. Benefactors receive prominent recognition at the event; a table for 10; preferred seating; 10 invitations to the private VIP reception; a double-page adver-tisement in the dinner program, and recognition on the CPR website.

• Patron—$20,000. Patrons receive a table for 10; preferred seating; a full-page advertisement in the din-ner program, and recognition on CPR’s website.

• Sponsor—$10,000. Sponsors re-ceive a table for 10; and recognition in the dinner program and on the CPR website.

• Friend—$1,000 for individual din-ner attendees, which includes recog-nition in the program.

For information on attending or participating, contact CPR Chief Op-erating Officer Beth Corman at (646) 753-8240, or E-mail [email protected]. Q

HolD tHe DAte: Cpr’s 2009 AnnuAl meeting

The CPR Institute will celebrate its 30th anniversary at its next Annual Meeting early next year.

The event will take place Jan. 15-16, 2009, in New York, at the InterConti-nental—The Barclay New York hotel, CPR’s first at that hotel.

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vol. 26 no. 7 july/August 2008140 AlternAtives




Program details will be posted at www.cpradr.org as soon as it is available. Watch the site for early bird registration sometime in 2008’s fourth quarter. Q

Cpr’s weeKly iDn poDCAst looKs At ‘terriFying’ negotiAtion

The CPR Institute’s International Dispute Negotiation this summer has examined dis-putes in Malaysia, and dealing with tough negotiators.

The podcast is available with new epi-sodes every Friday at www.cpradr.org, with all podcasts available for listening or down-loading with a mouseclick. The podcasts can be played instantly, or saved to your hard drive for listening later on your Ipod or other MP3 player.

The web page also has an RSS feed button that will automatically send each Friday’s new episode to users’ desktops.

All episodes and instant updates also are available via the iTunes store.

WestLegalEdcenter.com users can find a list of IDN downloads on the site’s pod-cast page, in addition to the CPR CLE offerings above.

All access is free.International Dispute Negotiation

host and producer Michael McIlwrath, Senior Counsel, Litigation, for GE In-frastructure—Oil & Gas in Florence, It-aly, officially launched the CPR podcast last October. So far, he has presented 33 IDN podcast features, between 10 minutes and 45 minutes in length—on a wide variety of international business issues, with a focus on improving prac-tices in constructing deals, and address-ing conflict.

For the Malaysia podcast, McIlwrath spoke with Sai-Yeang Ng, a partner with Raja, Darryl & Loh in Kuala Lumpur, covering in detail dispute resolution in that nation’s courts and mediation rooms.

McIlwrath also sat down recently with Australian attorney John Wade, who is an educator and practitioner, on dealing

with tough negotiators. Wade described “truly terrifying” adversaries in seemingly conventional ADR settings, where listeners were advised to abandon compromise and walk away.

The IDN podcasts are designed to help listeners understand the risks of disputes and provide insight on the best ways to accept, mitigate, and manage those risks, whether through mediation, arbitration, or litigation that arises far from home.

For more information on the series, visit the web page above, or E-mail [email protected]. Q

Cpr trAining upDAte: joint Cpr-CiArB ArBitrAtor trAining

Just announced at press time is a new joint CPR Institute arbitrator training program to be held in conjunction with the Char-tered Institute of Arbitrators, a London-based professional group.

The program, set for Sept. 4-5, 2008, at the CPR Institute offices at 575 Lex-ington Ave. in New York, follows two sold-out joint programs last year. Regis-tration for the new session is now open at www.cpradr.org, or by calling (212) 949-6490.

Successful completion will put par-ticipants on track to be approved as an associate and, ultimately, a Fellow of the Chartered Institute. The coursework pre-pares arbitrators for challenging interna-tional cases.

The training will cover:

• An overview of arbitration and U.S. arbitration law and practice.

• Elements of the arbitrators’ appoint-ment and jurisdiction.

• Conducting a preliminary hearing, as well as interlocutory and pre-hearing matters.

• Hearings’ organization and manage-ment.

• Special considerations in international proceedings.

• Drafting and writing the arbitration award.

The cost for the training is $1,895. The course will provide 12 continuing legal education credits under New York State CLE Board rules. One of the hours will earn Ethics credit.

Registration is available at the Training link on CPR’s website.

The CPR Institute has been certi-fied by the New York State Continuing Legal Education Board as an Accredited Provider of continuing legal education in the State of New York [July 14, 2007-July 13, 2010].

Financial hardship guidelines are avail-able at www.cpradr.org at the Training link, or by E-mail request at [email protected]. No partial CLE credits are granted for CPR training events.

For more CLE information, E-mail info@ cpradr.org. Q

Cpr Committee spring AnD summer rounDup

The expedited rules subcommittee of the CPR International Committee on Arbitra-tion continued proceeding through drafts of a new set of expedited rules at its June 16 meeting. So far, the subcommittee has completed drafts on notice and com-mencement, a well as selection provisions. Now, it is turning its attention to rules on hearing conduct.

* * *

The full CPR International Committee on Arbitration met on June 23, after press time, and was expected to grant final ap-proval to its information exchange proto-col. The full protocol brings together two draft protocols, on arbitration witnesses and on document exchange. The two doc-uments were disseminated for comments at CPR’s Annual Meeting in New York in January. Lawrence W. Newman, a New York-based Baker & McKenzie partner, chaired the committee’s working group on document exchange; Newman also chairs the full committee. Ben H. Sheppard Jr., director of the University of Houston’s


A.A. White Dispute Resolution Cen-ter, chaired the document exchange working group. Former CPR president Thomas J. Stipanowich, academic di-rector of the Straus Institute for Dispute Resolution at Pepperdine University School of Law in Malibu, Calif., assisted in coordinating the committee’s work on the protocol.

* * *

The CPR Committee on Early Resolu-tion of High-End Commercial Dis-putes continues its work on collabora-tive processes. The committee met on a June 17 conference call. It is develop-ing a grid of resolution options, simi-lar to CPR’s ADR suitability screen. The grid’s processes will be adaptable for corporate users’ conflict resolution programs.

* * *

A steering group of the CPR E-Dis-covery Committee met on June 19 to discuss its work, including compiling panelists, with new co-chair Thomas Allman, a Cincinnati-based neutral who is a former partner in the Chicago office of Mayer, Brown, Rowe & Maw LLP. Allman’s co-chair is Charles R. Morgan, managing director and special counsel of FTI Consulting in Atlanta.

* * *

This summer, members of the CPR Commission on Facilities for the Reso-lution of Mass Claims continue to work on a draft of an ADR book that is expected to set out best practices for different types of claims, including a variety of situations ranging from defec-tive products to major catastrophes.

* * *

For more information on CPR com-mittees, visit www.cpradr.org, or E-mail inquiries to [email protected]. Q

HigHligHts From viennA: Cpr’s FourtH AnnuAl europeAn Business meDiAtion Congress

CPR’s Fourth Annual European Busi-ness Mediation Congress gathered in-house attorneys, law firm practitioners, and alternative dispute resolution ex-perts in academia and consulting in Vienna in May.

The attendees participated in 10 sessions on May 15-16 that covered negotiation techniques training, analysis of current ADR law, and historical per-spective on business conflict resolution issues and practices worldwide.

The sessions provided New York state continuing legal education credit. WestLegalEdcenter.com, CPR’s online CLE provider, expects to post a session this summer from the meeting for on-demand listening and CLE credit. For details on CPR’s training online, see item above.

The meeting, hosted by CPR’s con-gress moderator, Jack Levin, a New York-based partner at Covington & Burling, kicked off with presentations on business conflict resolution trends by CPR President Kathy Bryan, and CPR European Advisory Committee Chair-man Hans Peter Frick, Senior Vice President and Group General Counsel, of Nestle, in Vevey, Switzerland.

After welcoming participants to CPR’s first-ever Austria event, Bryan, who is a publisher of this newslet-ter, said that after years of growing commercial mediation acceptance and increasingly sophisticated conflict reso-lution processes and systems, the prac-tice is in a rapid-development phase. “We have only begun to scratch the surface,” she said.

Bryan said that, on the arbitration side, “Many people have bad things to say,” but change was rampant. She add-ed that CPR committees were focused on process improvements.

Bryan also reminded the gathering that ADR wasn’t limited to the arbitra-tion and mediation, and said that the

meeting—and CPR itself—would high-light work in areas such as settlement counsel and collaborative processes.

Bryan played an audio promo for the International Dispute Negotiation podcast, a weekly audio program hosted by GE Oil & Gas senior litigation counsel Michael McIlwrath, of Flor-ence, Italy, which CPR has featured at www.cpradr.org since last October. (See item above.) She also discussed a variety of business conflict resolution tools for law firms and corporate attorneys com-ing from CPR committees, as well as CPR’s new online training offerings available at WestLegalEdcenter.com.

Hans Peter Frick, a longtime me-diation advocate for the disputes Nestle has with suppliers and vendors, titled his speech, “Fitting the Product to Satisfy the Customer.” He said that business issues involved in producing, distributing and selling the company’s key international coffee brand, Nescafe, with a variety of different roasts for dif-ferent markets, “confirms very strongly Nestle’s support for mediation as a key business tool [that] preserves key busi-ness relationships.”

For example, he explained, the com-pany has four distributors that account for 90% of Nestle’s French business. A problem with even one could cripple operations in France, he said. “We can’t afford to go to court and lose that busi-ness,” he said.

He said that mediation works well across business settings, citing its use in intellectual property matters. But he explained that commercial conflict resolution involves “interplay” between mediation and arbitration. There is no one answer to dispute resolution, said Frick, adding, “you have to be tailored to the circumstances.”

He warned against boilerplate me-diation clauses. He explained that Nes-tle’s food and beverage business is now oriented to health and nutrition, which means adapting the mediation and ADR clauses to the industry concerns, and focusing on flexibility and speed so that problems don’t linger.









Similar conciliatory processes help the company deal with regulatory compliance, he said. Consumers seek more informa-tion now than in the past, explained Frick, “so the race to be first with new products puts us and our competitors on a collision course” with regulators. Mediation, he said, can help with issues related to clini-cal trials.

A significant amount of Nestle’s re-search spending, he said, goes into an increasing number of strategic alliances, such as agreements with universities. “Like change, conflict is inevitable” in these ar-rangements, said Frick.

On the deal side, he said that mediation “deployed as a business tool” helps iron out issues in complex negotiations in joint ventures and the alliances. In mergers and acquisitions, Nestle will send complicated liability issues to a mediator “in a fast-track procedure,” he said, so the transaction doesn’t get hung up.

* * *

Next, Karl Mackie and Eileen Carroll, the executive directors of the Centre for Dis-pute Resolution, a London ADR provider and training institute, conducted a two-part workshop on improving negotiating techniques. Much of the session involved grouping meeting participants to conduct mock negotiations under fact patterns the instructors distributed.

Carroll said that as an attorney in the 1980s, before she and Mackie founded CEDR in 1990, she was “horrified as a litigator of the lack of strategic approach to solving client’s problems.” She reported that she has continued to practice tra-ditional law, but has spent a lot of time mediating. She says CEDR has emphasized the importance of “putting in systems to get people thinking about mediating,” with a focus on parties and advocates. “We can’t all be mediators,” she said.

She said that negotiation deadlocks occur because of “positional enrichment”; individual’s tactics; genuine disagree-ments and informational gaps; emotional and communication blockages; team dy-namics and authority issues; a lack of

confidence; environmental factors, and cultural differences.

After a roleplay exercise with two audi-ence members, Carroll summarized that the best way to address impasse is with “active listening” skills.

Carroll and Mackie summarized the individualized exercises and roleplay by discussing ways to break deadlock. Their list included building trust and creating empathy; “deflect/reflect/re-frame/re-fo-cus”; state and address realities; “create space” for people to be heard and listened to; give people control of issues; develop options and explore bargaining ranges; re-configure team dynamics, and change the negotiating environment.

* * *

CPR President Kathy Bryan returned to the podium to moderate, “Getting the Other Side to the Table: Pledges, Con-tracts and Other Pre-Dispute Tools.”

She said CPR’s two-decades-old Cor-porate Policy Statement on Alternatives to Litigation—better known as the Cor-porate ADR Pledge—still has vitality and power. Under the pledge, companies state that they will pursue nonlitigation alternatives to settling disputes—direct negotiation and mediation—before opt-ing for litigation. The pledge, which has been signed by more than 4,000 operat-ing companies, is nonbinding.

An accompanying CPR Law Firm Pol-icy Statement on Alternatives to Litigation has been signed by more than 1,500 law firms, including most of the nation’s larg-est firms.

Bryan said that attorneys regularly check the CPR website to see if their ad-versary is a pledge signatory. The pledge’s continued use, she explained, has encour-aged the CPR board to form a pledge reex-amination committee to see if it should be updated or expanded.

Her first question to the panel was on the best way to bring up the need for ADR in constructing a deal. Panelist Christopher Rowbotham, senior attorney for litigation at IBM (UK) Ltd. in London, advised getting conflict resolution provisions into

contracts. He said IBM uses an “escalation clause.” The multistep clause heightens the level of negotiation and ADR process as disputes proceed, he explained.

Rowbotham said that IBM doesn’t always like the processes proposed by its contracting partners and adversaries, but it tries to be flexible. “We will consider” the proposals, he said, “because one size does not fit all.” He discussed a problematic proposal in which the other side asked for a binding adjudication process—along with the name of the adjudicator it wanted to decide the matter.

Kathy Bryan polled the audience on using multistep clauses, and about half reported they use the clauses. When she asked nonusers if they had objections, one audience member said, “when very adver-sarial lawyers get hold of multistep dispute resolution clauses, they can invent their own disputes.”

Panelist Jürgen Klowait, a mediator and general counsel of nuclear power com-pany E. ON Kernkraft GmbH, in Gelsen-kirchen, Germany, said that he relied on both mediation contract clauses and a corporate pledge to get adversaries to the bargaining table.

Klowait presented slides discussing E. ON’s attempts to develop a corporate culture that emphasizes openness, respect, cooperation and trust. He said all the traits are reasonable goals that everyone agrees on, but they take work to become bedrock parts of the processes.

Panelist Mercedes Tarrazón, a Barce-lona, Spain, mediator, said that mediation isn’t familiar in her area. She said it may sound naive to longtime practitioners to urge attorneys to discuss with their clients the common business interests they share with parties on the other side of the table. But, she said, “we don’t do it enough.”

Tarrazón, of the Barcelona Chamber of Commerce’s dispute resolution center, said focusing on mutual interests with a client in advance “makes a difference when you sit down with the other side.”

The panel discussed barriers to media-tion. Klowait said that education is key for advocates, whose “first task is to make




something unknown known.” The goal is to make mediation a “natural . . . logi-cal choice.” The biggest problem media-tion managers have, he said, is the fear about what their adversaries will think if they offer or participate in mediation.

IBM’s Rowbotham emphasized that mediation must be seen as part of a business continuum—something that crops up to resolve issues over the course of a contractual relationship. “Instead,” he said, “mediation often is seen as a precursor to litigation.”

Audience discussion on mediation barriers closed out the session. Among the barriers discussed:

• Some people don’t know what me-diation is or what it entails.

• Europe’s “poor old tradition of conciliation” predominates via its court- or judge-driven processes, rather than an independent neutral third party.

• Attorneys object because they be-lieve mediation limits their ability to make money, which one audi-ence member called “surprising and unethical.”

• Even where attorneys and even neu-trals like it because they get suffi-cient business, they may be missing mediation’s “real purpose,” which is to help the parties.

* * *

Next, prominent Boston mediator Eric Green gave a keynote speech, “Spe-cial Mediation Challenges in Complex Cross-Border Disputes.”

After recounting his association with CPR going back to the organization’s founding in the late 1970s, the Boston University professor gave his view of the top 10 reasons why business media-tions fail:

• bad timing;• the wrong participants—“defen-

sive perpetrators, outraged victims, egomaniacs, control freaks, young

gladiators, novices and underlings without authority”;

• a lack of information about fac-tors such as damages, liability, and smoking guns;

• suspicion—a lack of trust fueled by “a bad history, bad faith, or bad parents”;

• missing parties, including insur-ers, co-defendants, and parties that the participants might not even be aware of;

• “linkage”—the impact of related cases or business considerations;

• reactive devaluation and negotiation styles—“negotiation is a very reactive phenomenon, and a lot of people get trapped” by their own style;

• a lack of reciprocity—“‘We’re not going to bid against ourselves.’ Ev-eryone says that, but . . . the essence of negotiation is to bid against your-self in some sense.”

• process design conflict or failure—a mediation breakdown that is differ-ent from process to process; and

• “surprise—new facts, new legal theory, a change in people/parties, [etc.]; diametrically opposite from litigation,” where surprise can be an advantage.

Green, who as a principal in the Bos-ton ADR consulting firm of Resolutions LLC has mediated high profile cases like the U.S. Justice Department’s antitrust prosecution of Microsoft Corp., and the cancer cluster cases in Toms River, N.J., counted down in reverse order the top 10 mediation mistakes:

• Winging it, characterized by a failure to prepare on the merits, lack of authority, or a lack of at-tention to group dynamics, strat-egy, or tactics.

• Getting “drunk on your own li-quor,” where participants buy into their rhetoric, lose their skepti-cism, and assume the mediator will see their case they same way they do, and convince the other side to capitulate.

• Playing your side’s cards close to the chest to avoid providing “free discovery”—“You need to put your case on the table to suc-ceed in mediation.”

• Sharing the smoking guns with me-diator, but not the other side.

• Lowering the other side’s expecta-tions by rattling sabers and taking a tough opening positioning.

• “Hunkering down, digging in,” and insisting that the other side make the first offer.

• Raising the demand, and lowering the offer.

• Getting angry, walking out, or threatening to break it off demands aren’t met.

• Cutting to the chase too early by giving the other side a take-it-or-leave-it-demand.

• Giving up, or quitting too early—the most frequent mediation error.

Mediation parties’ three most fre-quent lies, said Green, are “I have full authority”; “This is my bottom line”; and, directed to the mediator, “We re-ally want to know what you think.”

Green moved to cross-cultural issues, noting that in negotiations, people in “some cultures won’t say no.” He said a mediator must move cautiously before he or she “exercises his skills in a cross-border matter.” He said that before acting, mediators must focus on choice-of-law issues—“laws, rights, and remedies”—warn-ing that even an amicable settlement may need multiple approvals and judicial “coordination.”

He listed frequent occurrences in cross-border mediations that make the processes complicated: a potential need for different provisions for recover-ing costs and fees; multiple competing claimants; multiple defendants; sover-eign or nationalistic immunities and protections; variations in enforceability of settlement agreements; different un-derstandings of ADR and mediation generally, including procedures, the re-lationship to court or arbitral proceed-






ings, confidentiality, the mediator’s and party’s roles; and the mediator’s status and credentials, as well as others.

The bottom line, said Green, is that “you can’t come in and insist on doing it ‘The American Way.’”

Green’s bio can be found on Resolu-tion’s website at www.resolutionsllc.com/principals.htm.

* * *

The afternoon of the meeting’s first day began with “The ADR Landscape,” an exploration of the business conflict resolu-tion tools and products.

Jeremy Lack, of the Geneva, Switzer-land, law firm of Altenburger, presented a Powerpoint he had developed with fellow panelist Renate Dendorfer, of Munich, Germany’s Heussen Law Firm, focusing on hybrid processes. He said the outcomes of all disputes are based on participants’ emotions. Dendorfer analogized disputes to icebergs, with most of the conflict not visible, below the surface.

Dendorfer discussed some of the char-acteristics of arbitration that lead to using the process in conjunction with other conflict resolution methods. She said that it’s nearly impossible to get a “correct legal solution” in arbitration. She said many cases aren’t fully arbitrable because of laws—for example, “registered IP assets are nonarbitrable in many countries.” She said high costs and confidentiality con-cerns affect outcomes where arbitration must be deployed.

Lack added that ADR consumers still tend to look at the process as an “off-the-shelf product.” He said ADR calls for a case-tailored structure.

Dendorfer discussed at length the use of mediation techniques in arbitration. She said that since settlement is “the essence of the spirit of arbitration,” mediation is a useful process addition for many of the same reasons it can produce settlement on its own—by overcoming cognitive barriers, dealing with overoptimism and reactive devaluation, and taming a tense negotia-tion atmosphere.

Panelist Frances McGovern, a veteran complex multiparty mediator in high-pro-file cases, and a professor at Duke Univer-sity School of Law in Durham, N.C., said the context for using a hybrid ADR process is just as important as the skills deployed. Mediation strategy requires matching the skills to the kind of people involved, and the ADR setting, he said.

McGovern cited several issues in con-structing a hybrid resolution process:

• a design conference should be con-ducted that focuses first on adapting processes for the subject area;

• additional design steps are needed that focusing on procedure to “global peace” for multiparty action;

• participants in large multiple-party matters need to realize and account for intraparty mediation activity occurring among the judges in separate but re-lated actions; between the defendants, and among plaintiffs with regard to settlement fund allocations.

• settlement implementation issues can be difficult—“it’s not uncommon for defendants to leave dollars to be dis-tributed.” [See, e.g., Linda Stamato and Sanford M. Jaffe,“Show Me the Money: A Proposal for Distributing Unclaimed Settlement Funds,” 26 Al-ternatives 113 (June 2008).]

• participants generally need to broad-ly consider the way they can collabo-rate about how these processes can be used.

The audience had several strong reac-tions to the panels’ points:

• Parties will become innovative in de-veloping hybrid processes when they realize that a settlement they construct will be better than a judicial decision.

• The user community will be at fault if mediation processes become as bogged down as arbitration.

• Business executives likely will have a different view of when to cut off discovery than advocates, and will invest more time and effort in a settlement process.

In pursuing settlement, said Frances McGovern, parties must “use all the tools available . . . without going over the edge.” He said that “the mediation community” in part is to blame for a failure to veer away from traditional mediation processes and adapt hybrid processes in certain difficult situations. He drew a contrast between a consensus-building negotiation, and a problem-solving model.

* * *

The first meeting day in Vienna concluded with “Real-Time Dispute Management Processes,” a session on the need for im-mediate, negotiated solutions, and how the practices can be broadened.

Francesco Benigni, vice president and secretary general of the European Com-pany Lawyers Association, an umbrella organization of 22 European in-house at-torney groups based in Brussels, moderated the session, which reviewed a variety of expedited processes.

Panelist Phillip Capper, a London White & Case LLP partner, discussed adjudications, dispute boards, and expert determinations, primarily used in the con-struction area—processes long institution-alized for quick decisions in England. “Inherent in the nature of these contexts is that there will be some combination of works for which processes will have to be designed,” said Capper, referring to the time-sensitive nature of the disputes need-ing fast attention.

He explained that the use of so-called experts to render quick decisions is particu-larly useful in large modern construction projects where the disputes aren’t inter-est-based.

Panelist Antonio Rigozzi, a law pro-fessor at the University of Neuchâtel, in Neuchâtel, Switzerland, and a partner in Geneva, Switzerland’s Lévy Kaufmann-Kohler, discussed the fast-track processes of the Court of Arbitration in Sport. He provided examples of the 24-hour limit for decision on disputed Olympics’ games results, and discussed the procedures.




* * *

The second day of the European Busi-ness Mediation Congress kicked off with local flavor. Mario Patera, a pro-fessor at the University of Vienna, pro-vided a 50-minute lecture, “Mediation in Austria: Theory and Practice,” which focused on Austria’s unique use of a co-mediation process. “It’s very odd, strange, or surprising for participants from the U.S. or other countries,” he said at the outset.

Patera covered the specifics of Aus-trian mediation. First, he said the coun-try has big minimum training require-ments—depending on the area, 230 to 360 hours of education, as well as an obligation to undergo continuing training. “Unlike the United States,” said Patera, “we are not talking about a weekend. We are not talking a 40-hour crash course in the United Kingdom.”

The stringent training hasn’t de-terred people from the profession. Almost 4,000 people are trained as mediators, said Patera, from a variety of professions including law, architec-ture, civil engineering, and chartered accounting. Two-thirds of the nation’s mediators are women, he said.

The co-mediation structure is a re-cent development. It began as a family and divorce court pilot project in 1996, he reported, with the government sub-sidizing programs in every Austrian dis-trict court. Originally, two professions were paired to mediate—for example, lawyers and psychotherapists—and the pairs take extensive joint training.

Now, the actual mediation teams and the process they use vary consider-ably depending on the matter. Patera said the teams might be a junior and senior practitioner, and people from the exact same areas or different ones. The sessions might involve two active mediators, or one who acts more as an observer and reports to the other neutral or the parties later.

The co-mediators may work in par-allel caucuses with the parties, and may

employ their own staff support to help manage larger disputes.

The underlying principle, said Pa-tera, is that mediation is “a process of change via mutual understanding and transformation, not evaluation.” Emo-tions are an essential resource, and re-

veal the nature of the parties’ interests, he said, in business mediation just as much as in other contexts.

He concluded by noting briefly the challenges to the mediation team. He said the mediators need to deal with the promise of accelerated results, as well as reconciling the different styles they are deploying in their party interactions.

* * *

Next, three leading conflict resolution practitioners tackled the rugged issue of mediator certification.

Wolf von Kumberg, who is Legal Director and Assistant General Counsel in London for Northrop Grumman Corp., backed certification. Von Kum-berg also is chairman of the Hague, Netherlands-based International Me-diation Institute, which is spearheading a credentialing initiative. British media-tor Antony Willis expressed reservations and skepticism about regulatory efforts, including IMI. And Mark E. Appel, a senior vice president at the American Arbitration Association’s international division, the International Centre for

Dispute Resolution, in Dublin, leaned heavily toward backing certification ef-forts, but said that a lot of work needs to be done to hash out the particulars.

In the session, “Mediator Accredita-tion: Risk or Opportunity?” von Kum-berg opened, making the business case for dispute resolution processes, and included a discussion of some of the roadblocks to ADR effectiveness. “Ar-bitration started as a very meaningful process,” he said, “[due to] the inability of state courts to deal with disputes. Now, . . . it very much mirrors the state court process. I don’t feel that me-diation should follow that same route.” Von Kumberg said he feared mediation becoming “rigid and very formalistic.”

He said that though Northrop Grumman strongly supported me-diation use, and though the process was his personal preference, problems have emerged. In a Powerpoint slide primarily directed to cross-border dis-pute resolution, von Kumberg noted that mediators have no universal stan-dards or rules for gauging their com-petency; no required tests; no profes-sional body; no disciplinary processes; and no transparent feedback process. He added that there is no objective global resources database for selecting or locating mediators.

Backing the accreditation efforts of IMI, an international public policy research organization, von Kumberg concluded that “standards would make it easier to get counterparts to include a mediation clause” in their deal docu-ments. (For details on the IMI creden-tialing initiative, see www.imimediation.org; see also Judith Meyer, “Mediators’ Alert: Now, Certification Goes Global,” 26 Alternatives 57 (March 2008)).

Mark Appel said that the Inter-national Centre for Dispute Resolu-tion handled 621 cases last year using Uncitral procedures, with about 8% to 10% going through mediation. He said about one third of the American Arbitration Association’s domestic U.S. cases are mediation matters.

That part of his employer’s business



‘mediators

should wake

up’ and address

certification on

their own.




is growing, Appel said. Mediation is grow-ing internationally due to increased use of step clauses providing for negotiation, then mediation, before adjudicated processes, he explained. “ICDR understood for years that we’re in the solutions business, not the arbitration business,” he said. Appel ex-plained that there is a “mediation check-off box” in filing papers, and parties are asked at initial conferences whether mediation has been considered.

“The issue of quality assurance is not new,” he said, adding that mediator quali-fications has been discussed by major ADR organization over the years. He said the needs for ADR quality measures include efforts the AAA and ICDR are investigat-ing in their Far East operation, as well as the United States and Europe. “The task is daunting,” he said.

Tony Willis agreed that credentialing is an important topic for all participants, and urged more study on issues of process and neutral transparency. But, he warned, “trying to regard mediation as a systematized or stan-dardized product is quite difficult to do.”

Willis, a full-time mediator at Lon-don’s Brick Court Chambers, reviewed methods of mediation regulation: orga-nizational control by providers; market decisions; state actions; and “collegial controls,” via networking, professional associations, etc. He said that the market and professional groups’ regulatory effects are combining, citing the establishment and growth of the International Academy of Mediators, a decade-old Toronto-based professional group.

Willis favors market regulation. He discussed at length the development of a directory of private information, includ-ing customer assessments, by a U.K.-based website, www.themediatormagazine.co.uk. (A link to the beta mediator directory is available at the web address.)

He said that the site was a good start, run by a reporter. Still, he said that he believed that “mediators should wake up” and do something on their own in the certification area.

The IMI initiative, however, is “hopelessly overelaborate,” said Willis, citing its requirements of adherence to

an ethics code, minimum training stan-dards, and education and provider rules. “It’s doomed, I’m afraid, to failure,” said Willis, because it offers “no evi-dence that it would improve mediators’ quality and standards.”

Willis called for IMI to “shelve a large part of its current scheme” for a broader discussion among users, as well as neutrals.

Wolf von Kumberg countered that the IMI standards would be beneficial in de-veloping nations, because neutrals exhibit-ing global acceptance would make it easier for local entities to include mediation into their contracts.

Willis agreed that the customers must be heard. “A market that ignores users will implode and vanish,” he replied.

The ICDR’s Mark Appel reminded the audience that the initiatives were still at the beginning stages. “There’s a lot of work done, but a long way to go,” he said.

CPR President Kathy Bryan noted from the audience that, as an IMI Inde-pendent Standards Commission member, she didn’t agree with the entirety of the proposed standard’s current structure. “At bottom,” she said, “we’re talking about a selection process.”

Von Kumberg concluded noting that he believed that practitioners and mediation customers had no choice but to set up their own scheme. “If we do nothing, as with the EU Directive [on mediation, passed earlier this year; see “The Directive Is In: European Union Strongly Backs Cross-Border Media-tion,” 26 Alternatives 119 (June 2008)], government increasingly plays a role in these decisions.”

* * *

Former CPR Senior Vice President F. Peter Phillips led a 70-minute discus-sion, “Corporate Social Responsibility and ADR,” opening with a capsule history of negotiated decisions. The history touched on interest-based approaches featuring confidentiality and value creation, as well as “The Mandarin” model, in which an elder restores balance and harmony by is-suing a “socially driven” edict.

Phillips said that commercial interests exposed more negotiating variables as dis-putes grew more complex. He set up some of the issues, as well as the conflicts:

• rights driven v. interest driven;• the vindication of a generally recog-

nized right v. the assertion of a gener-ally recognized obligation;

• the rights and obligations determined by parties’ own commercial interests;

• institutional processes to deal with con-flict arising out of the institution’s ac-tions, versus ad hoc processes adopted in the face of a crisis;

• external v. subjective standards;• the public v. private realms, with the

accompanying concerns about confi-dentiality, privilege, and providing a safe environment for creative problem solving with all stakeholders.

The sum of the issues, he said, is that for global corporations “to go into our 20-year projects unprepared for unavoidable, unpredictable but foreseeable problems would be a mistake.” Examples included corruption, and natural disasters.

Phillips, who heads his own consulting firm, Business Conflict Management, in Montclair, N.J., listed “maxims” for mul-tiparty and public policy disputes, noting that “disputes are an attribute of multipar-ty and long-term projects”: foreseeability; early information exchanges assist problem identification; the exchanges, as well as negotiation, should be built into the pro-cess, similar to the construction industry’s dispute review boards; and there should be no barriers to entry to participate in the resolution discussions.

Robert de Roos, deputy general coun-sel in exploration and production for Shell International B.V., based in the Hague, Netherlands, presented an extensive Pow-erpoint detailing how the oil giant deals with disputes involving communities. He said that Shell will use ADR, almost always mediation or a close process, and rarely arbitration. Mediation is done on an ad hoc basis in business-to-business disputes; where the company has a contract with




a host government, and where it has a noncontractual issue with local stake-holders such as employees, members of the local community, NGOs, etc.

Frank Govaerts, vice president and general counsel of Coca-Cola Enter-prises Inc. in Brussels, discussed a 1999 company crisis, where reports of illness related to Coke products sparked a mas-sive recall, and an intense public process by the company.

Govaerts described Coke’s Belgian mess: 80 million liters of Coke had to be recalled, then destroyed, and three facilities shut down. New sugar, bottles, and materials had to be purchased, and facilities had to be disinfected before re-opening. (Coca-Cola Enterprises is the soft-drink maker’s bottling arm—and independent company 34% owned by Coca-Cola, Govaerts reported.)

The government studied the is-sue and nine months later concluded that it was a “mass sociogenic illness,” Govaerts said, explaining that an “off-odor” apparently triggered a psychoso-matic reaction.

But the damage had been done. Govaerts detailed the company’s “in-tense marketing efforts” to assure the public about the product’s safety, which included an upgrade in its crisis management abilities, as well as biannual internal manufacturing pro-cess audits. Sales, he concluded, were back on track soon after the product returned to the shelves, after a three-month absence.

Panelist Auret van Heerden, presi-dent and chief executive officer of the Fair Labor Association, a Washington, D.C., coalition of companies, universi-ties and NGOs that promote workplace rights, says that global companies need to respond quickly to far-flung crises that “may be invisible to the head office, but can be in your face in a day” out in the field.

Van Heerden discussed several ex-amples. He noted that Nike’s most valuable asset is its brand, driven by its design and marketing. But the com-

pany ran into public relations issues in the 1990s over wages it paid—more correctly, the wages that the facto-ries the company contracted with, van Heerden pointed out—in making the “$5 component” of its product, the athletic shoes themselves.

The corrective measures aren’t “ADR per se,” he said, but instead “is a series of engagements that have to take place to create an environment in which mediation can take place.”

Moderator Phillips concluded the session by strongly backing anticipatory moves and processes. He said, “If medi-cine treated cholera like the law treats disputes, we’d all be dead. We wait for them to arise.”

* * *

Peter Phillips returned for the clos-ing session, picking up on Wolf von Kumberg’s earlier mention of the new European mediation regulation. Phil-lips led a half hour lecture/discussion on the European Union’s new direc-tive “on certain aspects of mediation in civil and commercial matters” (No. 15003/5/2007 – C6-0132/2008 – 2004/0251(COD))(available at http://register.consilium.europa.eu/pdf/en/07/st15/st15003-re05.en07.pdf ).

Phillips provided a rundown of the key provisions of the final April version, which requires member state’s to adopt laws and regulations encouraging me-diation in cross-border disputes within the next three years.

For more information, see the June Alternatives article cited above.

During the audience discussion, Mark Appel of the American Arbitra-tion Association said that during the nine years the directive was under dis-cussion, a few interested parties wanted it applied universally, to all European disputes, not just cross-border matters. But, he quickly added, “This is still a great start.” Q

DOI 10.1002/alt.20236

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