ALSO INSIDE: Mona Salyer Lambird Spotlight Award Winners Annual Meeting

Volume 91 — No. 9 — November 2020

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12 ROOKIE BLUNDERS Only GOOD LAWYERS OFTEN MAKE IN DRAFTING CONTRACTS

Who taught you to draft a contract, what provisions to include, what the provisions mean, how to analyze risk, and how to negotiate a better deal for your MCLE 7/1 client? When you review a contract, are you confident that you know what to look for? Have you missed anything?

The truth is that when it comes to reviewing and drafting contracts, most of us are "winging it," so, predictably, many contracts are plagued with embarrassing rookie blunders. The Rookie Blunders program is packed with brand new content you should know about:

• analyzing a complex provision; • assessing the balance of risk in a contract; • applying effective techniques to shift risk; • tracking money through a contract from origin to payment; • describing mathematical calculations; • bridging gaps in contracts through course of performance, industry customs, the UCC, implied covenants, and the Common Law; • creating specific legal consequences; featured presenter: • spotting and fixing questionable associations; Lenne’ Espenschied • avoiding phrasing traps, and much more.

Using examples drawn from high-profile transactions, you’ll learn to identify 12 specific rookie blunders, and how to prevent them. You’ll be able to apply these practical techniques to all kinds of contracts, including mergers and acquisitions, Stay up-to-date and follow us on sales of goods and services, licenses, real estate, settlement agreements, employment and consulting agreements, partnership agreements, and more. Whatever your current level of experience in drafting contracts, you'll learn to enhance your drafting skills, to avoid embarrassing blunders, to improve the to register go to www.okbar.org/cle overall quality of your work, and to draft more confidently. contents November 2020 • Vol. 91 • No. 9

THEME: Alternative Dispute Resolution Editor: Aaron Bundy FEATURES PLUS 6 Maximizing the Benefits of Arbitration 38 Annual Meeting By R. Carson Fisk 42 Mona Salyer Lambird Spotlight 12 The Development of Mediation Practices Award Winners in Oklahoma 45 2021 Committee Sign Up By R. Lyle Clemens 16 Ethics and Psychology in Mediation: More Important Than You Think By Collin R. Walke 20 Why Are We Still Fighting? By Melissa Fell 24 Mediation in the Time of a Pandemic: Preparing for the ‘New Normal’ of Online Mediations By Amy J. Pierce 28 Informal Resolution of Title IX Cases in Higher Education: An Analysis of ADR Opportunities Under the New Regulations By Michael J. Davis 32 Foundations for Family Law Mediation By Grant Brown PAGE 38 – Annual Meeting DEPARTMENTS 4 From the President 46 From the Executive Director 48 Law Practice Tips 52 Ethics & Professional Responsibility 54 Board of Governors Actions 58 Oklahoma Bar Foundation News 60 Young Lawyers Division 62 Bench and Bar Briefs 64 In Memoriam 66 Editorial Calendar 72 The Back Page PAGES 42 – Spotlight Award Winners From The President Role Models By Susan B. Shields

HE RECENT DEATH OF Supreme Court Justice TRuth Bader Ginsburg has resulted in many touch- ing remembrances of her remarkable life and her mark on history as a Supreme Court justice – and, before that, as a practicing attorney handling many import- ant cases championing gender equality before the Supreme Court. The “Notorious RBG,” as she came to be known in her later years, was a role model for many of us, women and men. Following her death, Chief Justice John Roberts said, "Our nation has lost a jus- tice of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice." U.S. Supreme Court Justice Ruth Bader Ginsburg When Justice Ginsburg began law school at Harvard unveils the OBA’s book, Leading the Way: A Look in 1956, she was only one of nine women out of a class at Oklahoma’s Pioneering Women Lawyers, at of more than 500. The total number of women graduat- the September 2003 Women in Law Conference in Tulsa. Photo Credit: The Tulsa World ing in my law school class in 1989 was about 35%, and today enrollment of women in law school is at 50% or She graduated from law school in 1963 more. The increasing number of women in the law is as only one of three women in a class of surely due, in large part, to the path that Justice Ginsburg 100 and took her first legal job with the blazed for gender equality before she Department of Justice in Washington. first became a judge in 1980 and her Mona had a distinguished career in subsequent rulings on equality during private practice in Oklahoma City and her time on the court. Following her served in many roles at the Oklahoma death, one author said that Justice Bar Association, becoming the OBA’s first Ginsburg “changed the way the woman president in 1996. The Spotlight world is for American women.” (continued on page 47) This issue of the bar journal includes an article about this year’s honorees for the Mona Salyer Lambird Spotlight Awards. Sponsored by the NOVEMBER WELLNESS TIP OBA Women in Law Committee, the Oklahoma women attorneys honored “Every now and then it helps to annually with this award are also role be a little deaf … That advice models who are well-deserving of rec- has stood me in good stead. Not ognition, and this year is no different. simply in dealing with my marriage, President Shields practices in The lawyer for whom the award but in dealing with my colleagues.” Oklahoma City. is named, Mona Salyer Lambird, ~Ruth Bader Ginsburg [email protected] 405-552-2311 was “notorious” in her own way.

4 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2020 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 91 — No. 9 — November 2020 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair content of their ads, and the OBA reserves Editor-in-Chief the right to edit or reject any advertising copy [email protected] LUKE ADAMS, Clinton for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. CASSANDRA L. COATS, Vinita LAUREN RIMMER Advertising Manager PATRICIA A. FLANAGAN, Yukon BAR CENTER STAFF [email protected] John Morris Williams, Executive Director; AMANDA GRANT, Spiro Gina L. Hendryx, General Counsel; Jim Calloway, Director of Management Assistance VIRGINIA D. HENSON, Norman Program; Craig D. Combs, Director of Administration; Janet K. Johnson, Director of C. SCOTT JONES, Oklahoma City Educational Programs; Beverly Petry Lewis, TONY MORALES, Shawnee Administrator MCLE Commission; Carol A. Manning, Director of Communications; Dawn ROY TUCKER, Muskogee Shelton, Director of Strategic Communications and Marketing; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine OFFICERS & Ogden, Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Les Arnold, Julie A. Bays, Gary Berger, Debbie Brink, Melody Claridge, Cheryl SUSAN B. SHIELDS, President, Oklahoma Corey, Nickie Day, Ben Douglas, Dieadra City; BRANDI N. NOWAKOWSKI, Vice President, Shawnee; Florence, Johnny Marie Floyd, Matt Gayle, MICHAEL C. MORDY, President-Elect, Ardmore; CHARLES W. Suzi Hendrix, Debra Jenkins, Rhonda CHESNUT, Immediate Past President, Miami; MATTHEW C. Langley, Jamie Lane, Durrel Lattimore, BEESE, Muskogee; MICHAEL J. DAVIS, Durant; TIM E. DECLERCK, Edward Maguire, Renee Montgomery, Enid; JOSHUA A. EDWARDS, Ada; AMBER PECKIO GARRETT, Whitney Mosby, Lauren Rimmer, Tracy Tulsa; BRIAN T. HERMANSON, Ponca City; ANDREW E. HUTTER, Sanders, Mark Schneidewent, Kurt Stoner, Krystal Willis, Laura Willis, Laura Wolf & Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Roberta Yarbrough Oklahoma City; MILES T. PRINGLE, Oklahoma City; ROBIN L. ROCHELLE, Lawton; D. KENYON WILLIAMS JR., Tulsa; JORDAN L. Oklahoma Bar Association 405-416-7000 HAYGOOD, Chairperson, OBA Young Lawyers Division, Shawnee Toll Free 800-522-8065 FAX 405-416-7001 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, Continuing Legal Education 405-416-7029 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Ethics Counsel 405-416-7055 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage General Counsel 405-416-7007 paid at Oklahoma City, Okla. and at additional mailing offices. Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Subscriptions $60 per year that includes the Oklahoma Bar Journal Mandatory CLE 405-416-7009 Court Issue supplement delivered electronically semimonthly. Law Board of Bar Examiners 405-416-7075 students registered with the OBA and senior members may subscribe Oklahoma Bar Foundation 405-416-7070 for $30; all active members included in dues. Single copies: $3

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THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 5

Alternative Dispute Resolution Maximizing the Benefits of Arbitration By R. Carson Fisk

RBITRATION OFFERS MANY ADVANTAGES over traditional litigation. Efficiency Aand cost-savings are often cited as the primary benefits, with a fair arbitration hearing being viewed as a shortcut to substantial justice. However, such concepts over-generalize the benefits arbitration can provide and are merely potential effects of the greatest value arbitration has to offer: control of the process placed in the hands of the end-users. It is this aspect of control that fully distinguishes arbitration from litigation.

CONSIDERATION whether it would be beneficial to appointed decision-maker might REGARDING APPLICABLE modify applicable rules or add to not possess. Additionally, it is RULES them where they fall silent. common in cases above a thresh- Depending on one’s perspective old dollar amount for there to be or negotiating leverage, arbitration QUALIFICATIONS OF an arbitration panel or tribunal is often chosen – or accepted – with THE ARBITRATOR generally consisting of three reference to an administering body, Having a voice in the selection arbitrators. This allows for a such as the American Arbitration of the arbitrator – who decides the greater range of experience and Association, JAMS or CPR. These outcome of the case – is one of the knowledge – and lessens the entities have a variety of distinct principal and unique benefits of impact that a “rogue” arbitrator rules that apply to different types of arbitration. There generally is no might otherwise have. There is no disputes, including general com- equivalent in litigation. Even if one equivalent in trial-level litigation. mercial, construction and employ- were to utilize a forum selection The Uniform Arbitration Act, ment.1 These rules, when referenced clause or engage in the disfavored as adopted in Oklahoma, vests a in an arbitration agreement, are practice of forum shopping, it court with the power to appoint an generally viewed as extensions of is often difficult to ensure that arbitrator, with no requirements that agreement – provisions that a particular judge hears a case. or limitations as to any quali- are incorporated by reference. They However, an arbitrator can be fications.2 The rules of various effectively serve as a gap-filler, identified who has a particular administering bodies typically setting a detailed and time-tested skill set, knowledge or experience provide for the selection of arbi- process and structure for the arbi- regarding the subject matter at trators from general or specialized tration that the parties can rely on issue or possesses other qualifica- panels or rosters and often adopt a and do not have to create. Even in tions or traits. This can eliminate process by which the parties rank nonadministered arbitration, the or reduce the need to present basic potential arbitrators.3 But parties question of how various procedural information at the hearing, thus can define or refine the process. matters will be addressed will saving the parties time and asso- For example, it might be contrac- inevitably arise. It is worth giving ciated costs. Further, the selected tually required that the arbitrator thought at the contract drafting arbitrator may offer a specific maintain a certain license, focus stage and the outset of a case as to perspective that a more randomly in a particular field or area of

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 7 practice, have a certain number ambiguity on the matter and not address discovery and there- of years of experience with the prevent any potentially undesir- fore did not impose a time limit subject matter of a given dispute able default standards from apply- on or restrict the type of discov- or have sector-specific or technical ing. But setting a decision-making ery allowed. Still, about 25% of knowledge within an overarching standard is of value only if it is the arbitration clauses limited industry. The options are limited utilized. Faith may be placed discovery to the exchange of only by the imagination. Such in the arbitrator to abide by the documents. In the other direc- requirements become binding as parties’ intent as reflected in the tion, a small but significant per- part of the arbitration agreement applicable agreement, or the agree- centage of the arbitration clauses and will be enforced.4 ment may be drafted to effectively (just under 10%) provided for require the arbitrator’s compliance the same kind and extent of dis- ARBITRAL DECISION MAKING under the threat of vacatur due to covery as was available in court Arbitrators generally render the arbitrator exceeding his or her litigation. Arbitrators reported substantive decisions under a powers, although the enforceabil- that, even when the arbitration model containing three extreme ity of such threats may be subject clause limited discovery, in the points: 1) strict application of the to further legal debate.6 majority of instances (57%), the law without any consideration to a To avoid end-user dissatis- parties in the arbitration agreed contrary result otherwise required faction, consideration should be to expand discovery beyond by the contract, 2) equity related given to drafting and negotiat- those limitations. to the outcome and 3) strict appli- ing arbitration agreements so all In nearly all cases, discovery cation of the contract without any involved parties, including the involved the exchange of docu- consideration as to a contrary result arbitrator, understand the stan- ments. The survey showed that otherwise required by substantive dard to be employed in rendering depositions also were common law. Practically speaking, decisions decisions. Further, it should be and took place in nearly two- may be made primarily relying determined whether the arbi- thirds of the reported arbitra- on one approach as may be tem- trator is to be trusted to use that tions (66%). Discovery frequently pered by another. For example, the standard voluntarily or should be included the deposition of either contract language could be strictly compelled to use it and whether experts or non-parties (40% applied with subjective concepts of any adjustments to the contractual of cases). Interrogatories were fairness being given due consider- language are needed. The parties relatively unpopular, being used ation. Similarly, concepts of fairness can receive great value if they take in less than 20% of the reported could be applied with some degree proper care to negotiate the deci- cases. Discovery disputes of deference given to the law. sion-making standard up front happened often, however, with The preferred approach can be – and to select an arbitrator who arbitrators ruling on discovery but often is not – identified in the will uphold the parties’ intent. disagreements (whether brought applicable arbitration agreement. by written motion or orally) in The laws supporting the use of PROCESSES FOR EXCHANGE about 70% of the cases.8 arbitration are generally silent on OF INFORMATION the application of the law, as the It is the discovery process or, As noted above, attorneys have Federal Arbitration Act and the more appropriately in arbitration, a tendency to gravitate towards Uniform Arbitration Act do not the exchange of information that what is familiar, often including mention the role of substantive law often drives up the cost of litiga- litigation concepts in the arbi- in arbitral decision-making. Left tion and arbitration.7 In a survey tral context. Parties may prefer unaddressed, the standard may be conducted over an approximate to have at their disposal all of set by the rules of any administer- three-year span, the American the discovery-related tools made ing body, which often vary.5 Arbitration Association collected available under the Oklahoma If the parties choose to establish 422 surveys from arbitrators related Discovery Code.9 But the oppor- the decision-making process to be to cases with a median claim tunity to control the exchange of utilized by an arbitrator, this would amount of approximately $2.5 information process should not be typically occur at the pre-dispute million. The resulting white paper overlooked. In arbitration, certain stage, likely during contract nego- notes, with respect to discovery: discovery tools may be ignored, tiations. By contractually defining limited or expressly eliminated, the concepts to be utilized by the Arbitrators reported that most of with requests for admission and arbitrator, the parties avoid any the arbitration agreements did interrogatories often falling by the

8 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL wayside. Similarly, depositions Additionally, where an arbitrator check. When attorneys’ fees are may be unavailable or subject to is contractually denied the power recoverable, one focus of risk aggregate or deposition-specific to award certain types of relief assessment is on the potential for limits on time or the number of (e.g., equitable, declaratory, etc.), an expanded negative result – the depositions available. Expert- which may be permitted under fact that the losing party might not related discovery may be limited the rules of various administer- only have to pay an adverse judg- to the exchange of reports. Other ing bodies, the arbitrator can be ment or arbitration award, but also limits may be warranted as well. expected to abide by that denial the attorneys’ fees incurred by the Once again, limitations that trans- of power and not include such winning party. This increased risk late into cost-savings are limited matters in his or her award. may motivate parties to take a more only by the imagination. “reasonable” position in settlement RECOVERY OF ATTORNEY FEES negotiations. But the prospect of LIMITS ON ARBITRAL POWER Under Oklahoma law, a liti- such recovery may also embolden As the source of the arbitrator’s gant’s right to recover attorneys’ a party with the stronger position power, “[t]he parties’ agreement fees is governed by the “American (or perceived stronger position). may give the arbitrator broad Rule,” which provides that courts Conversely, when a party has no power, and it may confine and generally may not award attorney prospect of recovering its attor- limit the arbitrator’s power,” and fees in the absence of a specific neys’ fees, the party is effectively the arbitrator “has the obligation statute or a contractual provision encouraged to be fiscally prudent to effectuate the intent of the par- allowing for such recovery.13 There regarding actions that are taken. ties’ agreement.”10 An arbitrator’s are, however, exceptions, includ- When attorneys’ fees are not recov- attempt to utilize authority that ing claims related to breach of erable, either having been waived has been expressly denied to him contract.14 The underlying logic for or expressed as a limit on the or her – or to refuse to enforce a these exceptions would appear to arbitrator’s power, the focus of risk power granted to him or her – will be that a prevailing party should assessment is on the merits of the subject the award to vacatur.11 be compensated for the cost of dispute, without attention to add- ed-on costs such as legal expenses. This approach can be particularly effective for early stage resolution of “smaller” disputes. However, certain parties may also be inclined As the source of the arbitrator’s power, “[t]he to adopt harsher or unreasonable approaches as a means to gain parties’ agreement may give the arbitrator broad negotiating leverage, knowing that their exposure to attorneys’ fees is power, and it may confine and limit the arbitrator’s lessened or nonexistent. Ultimately, one of three differ- ent scenarios will usually apply: power,” and the arbitrator “has the obligation to 1) the contract mandates or per- mits for the recovery of attorneys’ effectuate the intent of the parties’ agreement.” fees, 2) the contract is silent on the recovery of attorneys’ fees or 3) the contract bars the recovery of attor- neys’ fees. There may be variants Contracts may contain limits prevailing – at least as long as such within these, including fee-shifting on certain types or amounts of costs are reasonable. Similarly, in and caps on recovery. Whether damages or costs recoverable by a arbitration, attorneys’ fees are often one is a claimant or respondent, or party and, generally, such contrac- recoverable if permitted by law dealing with a particularly aggres- tual terms are generally legally or contract.15 However, there are sive claimant or respondent, may enforceable.12 However, arbitration potential unintended consequences dictate the preferred contractual agreements may be drafted in a in allowing for such recovery. approach. However, such mat- way to give further effect to such A party that expects to recover ters should be addressed during provisions by framing them as its attorneys’ fees may be less contract negotiations, long before limits on the arbitrator’s power. inclined to keep those costs in any litigation has ensued and the

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 9 preferred approach for any specific However, empowered with greater Even before the pandemic, situation can be solidly identified. information as to why a given many aspects of the arbitration result was reached, a nonprevail- process were already conducted CHOOSING THE TYPE ing party may be provided with a remotely. Most communications OF AWARD better opportunity to seek to have with the arbitrator and any case While a judgment in litigation the award vacated. In fact, the manager, in the case of an admin- may contain no to minimal reason- underlying purpose for obtaining istered arbitration, were and are ing, arbitration offers the parties findings of fact and conclusions handled via email. The critical pre- various options. An arbitration of law – at least in litigation – is to liminary hearing, where various award may be issued that offers no permit ease of review for a higher procedural matters are addressed reasoning or may provide much court.18 In the absence of agreement and a final hearing date may deeper insight as to the factual and on the matter, deciding the type of be identified, was and remains procedural background, resolution award may be left to the discretion generally conducted by telephone of factual and legal issues and a of the arbitrator. It can, however, be conference. Hearings on interim reasoned analysis. In arbitration, directly addressed in the arbitra- matters were generally conducted “A reasoned award is something tion agreement itself. This is yet by telephone conference as well. short of findings and conclusions another value-add to selecting While the final hearing was typi- but more than a simple result.”16 A arbitration over litigation. cally conducted in-person, arbitral standard award offers the “simple rules often permitted and encour- result.” Findings of fact and conclu- TIMING AND METHOD OF aged flexibility. For example, Rule sions of law, using legal principles CONDUCTING THE HEARING R-33 of the American Arbitration as a guide, should offer substantial As the COVID-19 pandemic Association’s Construction detail with general findings being has made abundantly clear, liti- Industry Arbitration Rules pro- insufficient.17 gation does not always proceed vides that “[w]hen deemed appro- In general, standard awards, uninterrupted or swiftly. Shelter in priate, the arbitrator may also allow reasoned awards and findings of place directives and other orders for the presentation of evidence by fact and conclusions of law offer impacted the ability (and, in some alternative means including video different advantages and disad- cases, willingness) of jurors, par- conferencing, internet communi- vantages, though it is normally ties, attorneys, court personnel and cation, telephonic conferences and more costly to have an arbitrator judges to participate in the judicial means other than an in-person dedicate the time for the prepa- process. The necessity of striking presentation,” provided that “[s] ration of a reasoned award or a balance between access to courts uch alternative means must still findings of fact and conclusions and ensuring the health and safety afford a full opportunity for all of law. Standard awards gener- of the public has required that the parties to present any evidence ally involve less time to prepare judicial system adapt. As a result, that the arbitrator deems material and, by extension, are less costly. the Oklahoma Supreme Court and relevant to the resolution of However, they offer minimal directed that, “Judges are encour- the dispute and when involving insight as to why the particular aged to continue to use remote witnesses, provide an opportunity result was reached, which can be participation to the extent possible for cross-examination.”20 The par- frustrating for a party who did not by use of telephone conferencing, ties themselves are empowered to prevail or did not prevail to the video conferencing pursuant to dispense with either an in-person extent expected. Given the limited Rule 34 of the Rules for District or remote hearing as “[t]he parties information provided, they are – Courts, Skype, Bluejeans.com and may agree to waive oral hearings at least theoretically – more insu- webinar-based platforms.”19 While in any case.”21 lated from post-award attack, such it may have taken a global pan- This flexibility of arbitration is of as a motion to vacate the award. demic and disaster to prove the particular benefit in uncertain times Conversely, reasoned awards benefits, as well as the limitations, such as these, where the prospect and findings of fact and conclu- of remote hearings and dispute- of conducting an in-person trial or sions of law involve more time to related resolution on a large scale hearing may frequently change. prepare and are more expensive. to those who resisted the usage Parties may select a hearing date With the analysis they offer, there of such tools, attorneys and their at the outset of an arbitration and is often less of a question as to client are quickly learning. reasonably expect, assuming some why a particular party prevailed. degree of willingness to be flexible,

10 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL the date will hold. The hearing may ENDNOTES 11. See 12 O.S. §1874(A)(4); see also Sooner need to be conducted remotely, but 1. See e.g. Amer. Arb. Ass’n Comm. Arb. R.; Builders & Invs., Inc. v. Nolan Hatcher Constr. Amer. Arb. Ass’n Constr. Indust. Arb. R.; Servs., L.L.C., 2007 OK 50, ¶¶24-25, 164 P.3d 1063 proceeding in this private setting Amer. Arb. Ass’n Employment Arb. R.; JAMS 1071-1072 (holding that an arbitration award was may not be subject to the same Comprehensive Arb. R. & Proc.; JAMS properly vacated where the parties’ agreement Employment Arb. R. & Proc.; JAMS Eng. & Constr. mandated an award attorney fees the prevailing limitations of access that might be Arb. R. & Proc.; CPR Administered Arb. R.; CPR party but the recovery of such fees was denied). imposed on more public forums, Rules for Expedited Arb. of Constr. Disputes. 12. See Fretwell v. Prot. Alarm Co., 1988 OK 2. See 12 O.S. §1862. 84, 764 P.2d 149, 152 (holding that a contractual such as courthouses. Thus, in many 3. See e.g. Amer. Arb. Ass’n Constr. Indust. provision limiting damages to a set amount was instances, it is possible to conclude Arb. R. R-14; JAMS Eng. & Constr. Arb. R. & Proc. enforceable); Elsken v. Network Multi-Family R. 15. Sec. Corp., 1992 OK 136, 838 P.2d 1007, 1010 a final hearing in an arbitration 4. See 12 O.S. §1862 (providing that “[i]f the (recognizing that if parties are not in an unequal long before it might be possible to parties to an agreement to arbitrate agree on a bargaining position, a limitation of liability as to method for appointing an arbitrator, that method the amount of damages recoverable is generally conclude a trial in court. must be followed, unless the method fails”); see binding and enforceable); Dollar Rent-A-Car also Amer. Arb. Ass’n Constr. Indust. Arb. R. R-14 Sys., Inc. v. P.R.P. Enters., Inc., No. 01-CV-698- (noting that the selection process only applies JHP-FHM, 2006 WL 1266515, at *21 (N.D. Okla. CONCLUSION “[i]f the parties have not appointed an arbitrator May 8, 2006) (concluding that defendants were Beyond the high-level benefits and have not provided any other method of contractually precluded from recovering lost appointment…”). profits or consequential damages). arbitration offers are numerous dis- 5. Compare Amer. Arb. Ass’n Constr. Indust. 13. See Barnes v. Oklahoma Farm Bureau Mut. crete advantages over litigation that Arb. R. R-48(a) (providing that “[t]he arbitrator Ins. Co., 2000 OK 55, ¶46, 11 P.3d 162, 178-179. may grant any remedy or relief that the arbitrator 14. See 12 O.S. §936 (identifying a variety of may, in many instances, go over- deems just and equitable and within the scope claim where attorneys’ fee may be recovered). looked by parties when negotiating of the agreement of the parties, including, 15. See e.g. Amer. Arb. Ass’n Constr. Indust. but not limited to, equitable relief and specific Arb. R. R-48(d); JAMS Eng. & Constr. Arb. R. & arbitration agreements or initiating performance of a contract”) to JAMS Eng. & Proc. R. 24(g). an arbitration. That need not be the Constr. Arb. R. & Proc. R. 24(c) (providing that 16. House v. Vance Ford-Lincoln-Mercury case. Contracting parties and their “In determining the merits of the dispute the Inc., 2014 OK CIV APP 36, ¶24, 328 P.3d 1239, Arbitrator shall be guided by the rules of law 1246 (quoting Holden v. Deloitte & Touche LLP, counsel would be well-served to agreed upon by the Parties. In the absence of 390 F.Supp.2d 752, 780 (N.D.Ill.2005)). consider nuanced points that can such agreement, the Arbitrator shall be guided 17. See 12 O.S. §611 (providing that “[u]pon by the rules of law and equity that the Arbitrator the trial of questions of fact by the court, it shall place greater control in the hands of deems to be most appropriate. The Arbitrator not be necessary for the court to state its findings, the end-users. Unlike litigation, arbi- shall have the power to grant any remedy or relief except generally, for the plaintiff or defendant, that is just and equitable and within the scope of unless one of the parties request it, with the view tration offers a fully customizable the Parties’ agreement, including but not limited of excepting to the decision of the court upon the process, ranging from the selec- to specific performance of a contract or any other questions of law involved in the trial; in which case equitable or legal remedy”). the court shall state, in writing, the findings of fact tion of the governing rules and 6. See Hall St. Assocs., L.L.C. v. Mattel, found, separately from the conclusions of law”); qualifications of the arbitrator to the Inc., 128 S. Ct. 1396, 1405, 170 L. Ed. 2d 254 Messinger v. Messinger, 1958 OK 296, 341 P.2d (2008) (holding that the “national policy favoring 601, 604 (noting that “[t]he object of the statute [12 nature of the final award. Framing arbitration with just the limited review needed to O.S. § 611] is to enable the parties to have placed the advantages of arbitration as maintain arbitration’s essential virtue of resolving on the record the facts upon which the rights disputes straightaway” warranted barring litigated depend, as well as the conclusions of law involving merely efficiency and expanded judicial review of arbitral awards under which the court drew from the facts found, so that cost-savings, while accurate, only the FAA); Wells Fargo Bank v. Apache Tribe of exception may be taken to the views of the trial Oklahoma, 2016 OK CIV APP 68, ¶10, 384 P.3d court as to the law involved in the trial”). scratches the surface of how arbi- 145, 148 (concluding that “[p]rivate parties may 18. See Weavel v. U.S. Fid. & Guar. Co., 1993 tration can be effectively utilized as not contract for expanded judicial review [of OK CIV APP 4, 848 P.2d 54, 59 (noting that “[t]he arbitral awards] when the strict confines of the trial court is bound to make findings of material not merely a shortcut to substantial Federal Arbitration Act apply to the arbitration fact in sufficient detail for a correct decision of justice but rather a tailored path proceeding and award”); Forest Oil Corporation v. questions of law involved in the case in the event El Rucio Land and Cattle Company Inc., 518 the action is reviewed by a higher court”). taking into account the preferences S.W.3d 422, 432 (Tex. 2017) (holding that, under 19. Third Emergency Joint Order Regarding of the contracting parties. Texas law, “[i]n the absence of a clear agreement the COVID-19 State of Disaster (SCAD No. 2020- to limit the panel’s authority and expand the 36) (April 29, 2020). scope of judicial review, this Court may not 20. Amer. Arb. Ass’n Constr. Arb. R. R-33(c). exercise expanded judicial review...”). 21. Amer. Arb. Ass’n Constr. Arb. R. R-33(d). 7. See e.g. American Arbitration Association, ABOUT THE AUTHOR Parties and Counsel: Make Commercial R. Carson Fisk is a shareholder in Arbitration More Efficient, Less Expensive the Austin, Texas office of Andrews (available at www.adr.org). 8. American Arbitration Association, Parties Myers PC, where he practices in and Counsel: Make Commercial Arbitration More the area of construction law and Efficient, Less Expensive (available at www.adr.org). 9. See 12 O.S. §§3230, 3231, 3233, 3234, regularly serves as an arbitrator. 3236 (providing for various discovery tools, Licensed in Texas and Oklahoma, such as oral depositions, depositions on written questions, interrogatories, the production of he is board certified in construction documents and requests for admission). law by the Texas Board of Legal 10. Sooner Builders & Invs., Inc. v. Nolan Hatcher Constr. Servs., L.L.C., 2007 OK 50, ¶24, Specialization and is a Fellow of the 164 P.3d 1063 1071 (citing Alexander v. Gardner– Chartered Institute of Arbitrators. Denver Co., 415 U.S. 36, 53 (1974)).

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 11 Alternative Dispute Resolution The Development of Mediation Practices in Oklahoma By R. Lyle Clemens

N 1986, COMMERCIAL MEDIATION PRACTICES were in their infancy in Oklahoma. IBefore then, mediations were primarily conducted by administrative agencies and commer- cial businesses. The insurance industry was the first to acknowledge the commercial benefits of mediation, as mediation helped clear out a backlog of small insurance claims resulting from auto accidents and homeowners’ claims.1 These claims often sat for prolonged peri- ods without the stimulus to proceed to a conclusion. It was proposed the way to move these claims was to create an “event” to bring the parties together. This event was mediation.

Early mediation programs firms.4 With these captive firms mediators were required to report were billed as “mediation mar- receiving large volumes of case the results of each mediation.8 athons.”2 These marathons were files, mediation became a good Mediator reports provided data conducted over a period of two way to settle cases at an early proving mediation was incredibly days, and sometimes more than stage in the litigation process effective at resolving cases without eight mediations were sched- while cases with multiple parties the costs of the courtroom. uled and assigned to a mediator.3 and complex factual and legal Mediation events succeeded in issues continued to be handled ROLE OF THE COURTS bringing resolution to files that by traditional defense firms. During the formative period in had long been dormant. The mar- Federal courts also began to the adoption of mediation as a legal athons were a resounding success, recognize the value of media- tool, there was much discussion settling many of the cases in less tion to keep their civil dockets about the role the courts would than one hour and spurring the manageable. In 1991, the 10th play in the mediation process. commercial popularity of medi- Circuit implemented a mediation Much of this discussion centered ations. Due to this early success, program directed by the Circuit around mediator certification. insurance companies were con- Mediation Office.5 The office ran- Certification was proposed as a vinced resolving disputes with the domly selects civil cases on the safeguard to ensure parties would help of mediators could be both circuit’s docket and assigns them receive competent mediation ser- efficient and profitable. Mediation court-mandated mediation.6 The vices.9 The certification process could not only resolve backed up Western District of Oklahoma also would have limited the amount of dockets, but many cases could also adopted a court-mandated medi- “certified” mediators to individuals benefit from the insight of skilled ation program, providing parties who were approved by a group intermediaries. At this time, many who were required to participate with the power to grant the desig- insurance companies were aban- with a list of court-approved medi- nation.10 Certification is regarded doning the traditional relationship ators.7 A court “alternative dis- by many mediators and attorneys they had with defense firms and pute resolution coordinator” was as unnecessary.11 Unlike a typical were moving the defense of many appointed to monitor the imple- consumer transaction, mediators cases “in house” to captive law mentation of the program, and are selected by a sophisticated

12 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL market of experienced trial attorneys. undermine the parties’ choice payment. Early settlement is bene- The demand for mediators by of mediator, allowing parties to ficial to the client because costs are these attorneys determines who “select a mediator not identified reduced, and the award can often will succeed and who will fail on any list of qualified mediators be collected much faster. Perhaps in the practice of mediation.12 maintained by the district court.”16 the biggest benefit of mediation to Certification adds little if anything This legislation left the selection plaintiffs is the plaintiff has direct to this dynamic, further regulating of mediators to the free market, input on whether the case is settled an already selective market. encouraging a robust and active or tried. Every plaintiff and their Another proposed plan to roster of talented mediators to circumstances is unique, although involve courts more in the media- provide the best possible service risk tolerance and the motivation tion process was to provide a list to attorneys and their clients. for settlement varies between them. of mediators who were “qualified” The opportunity mediation affords by the district courts.13 There was MEDIATION BENEFICIAL plaintiffs is direct input into the much discussion as to whether it TO PLANTIFF’S BAR decision-making process of their was appropriate to have a district While the initial demand for case, which leads to happier clients judge order cases to mediation or mediation was driven mostly by who are more satisfied with the select a mediator for the parties. the defense bar, mediation also representation they receive. In other jurisdictions where the was and continues to be very ben- For many clients, a lawsuit is court had the power to do so, the eficial to the plaintiff’s bar. Often, usually their first exposure to appointee was often a retired mediated cases are represented the civil justice system. The liti- judge or someone the appointing by an attorney on a contingency gation process is confusing and judge had a relationship with.14 fee basis.17 This contingency frustrating to most. Clients do To ensure fairness in the selec- arrangement provides the plain- not understand why cases take so tion process, Oklahoma adopted tiff’s attorney gets paid out of the long, and the process of discovery the District Court Mediation proceeds of a resolved case. An is invasive and overwhelming. Act in 1998.15 The act set forth early resolution reduces the time The necessary elements to “prove” requirements for mediators who expended by the attorney and the a case are foreign to them. Prior wished to be “qualified” but pro- costs associated with protracted to mediation being utilized as a hibited any court rule that would litigation while still ensuring method of settlement, the client

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 13 was not exposed to a neutral party adjuster or, where insurance is discussions with the unfamiliar who could explain the legal pro- not involved, a risk manager, and party to ensure the best possible cess and outline available options. attorneys can adjust their argu- experience for everyone involved. At mediation, each party has the ments accordingly. Perhaps the best way to select a opportunity to ask questions and Whether a case requires exten- mediator is by the recommenda- acquire an understanding of the sive knowledge of product liability, tion of other attorneys. Opinions reasons for depositions, interrog- negligence torts, contracts, employ- certainly vary on this topic, and atories, expert witnesses and the ment, oil and gas, trusts, estates or it is not difficult to find attorneys burden of proof. If elements of family law, there is a mediator who with both favorable and unfavor- the case are lacking, the mediator has experience in that area and able impressions of a well-known can educate the party on the risks can deftly assist in the resolution mediator. Every mediator has the absence may pose. This third- of the dispute. Many mediators a distinctive style. Not unlike a party dialogue leaves the attorney are experts in multiple areas of the client’s selection of an attorney, to advocate for their client without law.19 However, the complexity of mediation services are personality seeming adversarial or skeptical, certain areas of litigation makes it driven. A mediator’s resolution ensuring the client does not ques- desirable for a mediator to develop style can range from iron-fisted to tion counsel’s loyalty to the case. a niche market that allows them to velvet-gloved, and every attorney It is easier for an attorney to agree shine in a single area of expertise.20 will have a preference. Regardless with a mediator’s evaluation than Once this niche is well established, of style, a high success rate is ulti- to disagree with the client. many lawyers become repeat mately what drives the demand The advent of the use of medi- customers as they too specialize for mediation services. A resolved ation has materially transformed in one type of law and appreciate case is often the best indicator of a the practice of law. In some areas the services of a mediator who is skillful mediator. of practice, the use of mediation well-versed in that area.21 Often, has become so routine that attor- one side is familiar with a media- THE FUTURE OF MEDIATION neys seldom need to be ordered tor while the other party has not Given the increase in use and by the court to participate, instead worked with them before. It is not acceptance of mediation in the initiating mediation themselves. uncommon for the unfamiliar past few decades, what does the This acknowledgment of the value party to contact the mediator prior future of mediation hold? Methods of mediation has also caused law- to scheduling mediation to become of conducting mediation are yers to refrain from direct nego- comfortable with the selection. evolving to better accommodate tiation themselves because they I have conducted media- clients. Online mediation services anticipate a mediation event will tions in 48 states, and in almost are already growing at unprece- soon be forthcoming. every case, I have pre-mediation dented rates.22 While face-to-face Arguably, the common end- ing event of litigation has shifted from a jury trial into a success- fully negotiated settlement at mediation. Many mediators in Oklahoma successfully settle more than 90% of the cases they take.18 This high settlement rate encour- ages the lawyers involved in liti- gation to put significant effort into preparing cases for mediation. Mediation preparation limits the number of depositions taken and discovery conducted and focuses instead on gathering the infor- mation needed to evaluate the case. Because there is no jury to persuade, the presentation is often for the benefit of an insurance

14 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL 30 interaction allows mediators to the justice system and further -is-the-question#.X0VvGi2ZOqA. e.g. Alternative better access the personalities and back up dockets from a recent Dispute Resolution, United States District Court Northern District of Oklahoma, www.oknd. 31 needs of the parties, which can be spike in lawsuits. Both of these uscourts.gov/Alternative%20Dispute%20 crucial to a mediation’s success, issues can be addressed, at least Resolution%20%28ADR%29 (last accessed Aug. 22, 2020). See also Jessica Notini, “General online services have some notable in part, by nontraditional dispute Benefits of Small Claims Mediation Programs,” benefits. Online mediation allows resolution methods. In the future, Mediate.com (Sept. 2001) mediate.com/articles/ notini.cfm. parties to negotiate from their own lawyers, clients and mediators 19. John Lande, How Will Lawyering and homes, where they are likely more alike can expect to see an accel- Mediation Practices Transform Each Other?, 24 23 Fla. St. U.L. Rev. 839, 844 (1997). at ease. The lack of travel also eration of the trend in the legal 20. Hinshaw, supra note 5, 172. eliminates costs and provides for community away from adversarial 21. Id. 22. Douglas Witten, “Video Mediation During more flexible scheduling, which, litigation and toward the con- the Coronavirus Pandemic: How Online Dispute unconstrained by geographic loca- tinuously developing practice Resolution Works,” nolo.com, (2020). www.nolo. 32 com/legal-encyclopedia/video-mediation-during- tion, can lead to earlier resolution of mediation. the-coronavirus-pandemic-how-online-dispute- of a case.24 The types of cases that resolution-works.html. 23. Mark D. Zukowski, “Online Mediation Goes will see an increase in mediation Mainstream,” Ariz. Att'y, June 2020, 38 (2020). rather than litigation in years to ABOUT THE AUTHOR 24. Id. 25. Debra Berman, James Alfini, “Lawyer come are also changing. R. Lyle Clemens is an AV-rated Colonization of Family Mediation: Consequences Family law disputes, like attorney whose practice and Implica-tions,” 25 Marquette L. Rev., 916 (Spring 2012). divorce cases, are seeing an emphasizes mediation and 26. Carey Worrell, “What to Expect from increase in parties choosing arbitration services. He has been a Workers’ Comp Mediation Settlement Conference,” Law-yers.com, www.lawyers.com/ mediation over a drawn-out court a leader in the field of ADR since legal-info/workers-compensation/what-to-expect- battle, even as those cases become 1986 when he was appointed to from-a-workers-comp-mediation-or-settlement- more complicated.25 Mandatory the board of mediators for the conference.html (last accessed Nov. 11, 2019). 27. Steve Metzer, “Judge Sends Gaming mediation for workers’ compensa- Oklahoma Mediation and Arbitration Dispute to Mediation,” The Journal Record (Feb. 11, tion claims is becoming increas- Services. He has conducted more 2020) www.journalrecord.com/2020/02/11/ judge-sends-gaming-dispute-to-mediation. ingly commonplace as companies than 4,500 mediations. 28. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). seek to avoid the courtroom, driv- 29. Hinshaw, supra note 5, 167. 30. Ron Faucheux, “By the Numbers: ing the need for mediators well ENDNOTES Americans Lack Confidence in the Legal System,” versed in the nuances of those 1. Johanna Knapshaefer, “Insurance Claims The Atlantic (July 6, 2012), www.theatlantic.com/ Mediation Cuts Time, Costs for Allstate,” The national/archive/2012/07/by-the-numbers-americans- 26 claims. Recently, after multiple Journal Record (Dec. 16, 1989). lack-confidence-in-the-legal-system/259458/. tribal nations in Oklahoma sued 2. Id. 31. Ansa Assuncao, “COVID-19 Related 3. Id. Employment Lawsuits on the Rise - What Gov. Kevin Stitt over casino gam- 4. Robert H. Mnookin, “Negotiation, Employers Should Expect and How To Protect ing compacts, a federal judge sent Settlement and the Contingent Fee,” 47 DePaul L. Themselves,” (June 10, 2020) www.lexology.com/ 27 Rev. 363, 365 (1998). library/detail.aspx?g=3f18762b-19e8-4e7d-b57b- the dispute to mediation. New 5. Harvey D. Ellis Jr., Clyde A. Muchmore, 281e2e1fe116. developments at the intersection of Oklahoma Practice Series §26:185 (2019). 32. Joseph H. Paulk, “So You Want to Be A 6. Id. Mediator? Realistic Considerations for Attorneys tribal and state law may result in 7. W.D. Okla. Loc. Civ. R. 16.3. Considering Be-coming Mediators,” 35 Tulsa L.J. an increased demand for media- 8. Id. 325, 325 (2000). 28 9. Art Hinshaw, “Regulating Mediators,” 21 tion in these areas. Harv. Negot. L. Rev. 163, 172 (2016). Mediation in Oklahoma has 10. Donald T. Weckstein, “Mediator Certification: Why and How,” 30 U.S.F.L. Rev. 757, 776 (1996). changed in significant ways over 11. W. Lee Dobbins, “The Debate over the last 40 years, evolving from Mediator Qualifications: Can They Satisfy the Growing Need to Measure Competence Without an unconventional means of con- Barring Entry into the Market?,” 7 U. Fla. J.L. & flict resolution into a commercial Pub. Pol'y 95, 96 (1995). 12. Hinshaw, supra note 5, at 172. product widely accepted and uti- 13. Roselle L. Wissler & Robert W. Rack lized.29 The advent of COVID-19 Jr., “Mediator Performance: The Usefulness of Participant Ques-tionnaires,” J. of Disp. Resol. and the subsequent shutdown of 229, 231 (2004). courtrooms across the country 14. Sharon Press, “Mediator Ethical Breaches: will likely encourage more parties Implications for Public Policy,” 6 Y.B. On Arb. & Mediation 107, 115 (2014). to look to mediation to solve their 15. 12 Okla. Stat. §§1821 to 1825 (1998). disputes as quickly and inexpen- 16. 12 Okla. Stat. §1825 (1998). 17. Mnookin, supra note 4 at 364. sively as possible. This shutdown 18. Thomas I. Elkind, “To Mediate in Court has served to exacerbate both or Out of Court, that is the Question,” Financier Worldwide, (Oct. 2015) www.financierworldwide. American’s growing mistrust in com/to-mediate-in-court-or-out-of-court-that

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 15 Alternative Dispute Resolution Ethics and Psychology in Mediation: More Important Than You Think By Collin R. Walke

EMEMBER THE TV SHOW, THE OFFICE? In one episode, Michael Scott, the bumbling Rhead of the Dunder Mifflin Scranton, Pennsylvania branch, tries to resolve an interoffice dispute through a handbook on mediation. The handbook says there are three types of medi- ation: mediations in which one participant or the other gets what he or she wants, another where neither gets what he or she wants and a final one in which everybody gets what they want. Mr. Scott is optimistic he can get the co-workers to the win-win-win compromise.

The foundational textbook for authors of Getting to Yes – and, in one hour to solve a problem, he’d mediators has historically been fact, takes several digs at Getting to spend 55 minutes articulating the Getting to Yes, created by mem- Yes because of its pie-in-the-sky problem and 5 minutes solving it. bers of the Harvard Negotiation theory. Instead, Never Split the I’m sure you’re thinking, “Why Project. I am confident Mr. Scott’s Difference employs various psy- is framing the question even nec- “win-win-win” mindset came chological techniques to create an essary? Isn’t the point of every from the unreal expectations environment for dispute resolution. mediation to settle the case? Isn’t set by Getting to Yes, because the So, who’s right? Should medi- that defining the problem?” If that authors of that book would have ators, or attorneys, be looking for were so, then why doesn’t every you believe the possibility of an mutual interests, or should they case settle? In other words, if both agreement in which everyone gets simply be looking for ways to sides genuinely want to settle, then what they want is fairly likely game one party psychologically? shouldn’t it get done? Of course, because disputes often have areas I believe the answer is: it depends. not every case gets settled, and of mutual interest that can lead to of course, there are a potentially a cooperative agreement. THE CRUX OF MEDIATION infinite number of reasons why The reality is much different. As Broadly speaking, mediation any given case doesn’t settle – the anyone who has served as a medi- can be thought of as an informal defense adjuster undervalues a ator or participated in a mediation dispute resolution method for any claim, a plaintiff’s lawyer overvalues can tell you, people are not looking conflict. However, the focus of a claim, a divorcee can’t set aside his for ways to solve both sides’ problems – this article will be on mediating or her emotions, etc., etc. The point they’re looking for ways to solve litigation cases since that will be is, a case does not necessarily fail to their own problem. This is why a of most practical benefit for those settle because both sides don’t want book like Never Split the Difference, reading. To that end, we must to settle; rather, there is some other by a former FBI hostage negotiator, frame the purpose of mediation problem that needs to be overcome is much more practical. In Never in a litigation context. Proper to reach agreement. Split the Difference, the author doesn’t framing leads to proper answers; The reason Getting to Yes fails in delve into mutual interests like the after all, Einstein said if he had practice isn’t because the theory is

16 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL bad, it’s because the theory doesn’t match up to reality. When you have an overly zealous adjuster or plaintiff’s lawyer, you have some- one who doesn’t gauge their own interests accurately. That is a psy- chological roadblock someone has to push through in order to resolve the case. Thus, if you were to frame every mediation as simply a method of settling the case, you’ve framed the question too broadly. Instead, the question should be, “How do I get Party A to see Fact ‘X’?” This, in my opinion, is the key to mediation – homing in on the real problem and figuring out through rational thought and/or emotional gaming how to get the obstinate party to move.

THE ETHICAL DILEMMA OF THE MEDIATOR Standard I of the Model Standards of Conduct for Mediators by the American Bar Association is titled “Self-Determination.” The stan- dard explains that a mediator “shall conduct a mediation based on the principle of party self- determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Emphasis supplied.) Taking this

THE OKLAHOMA BAR JOURNAL standard at face value then begs she isn’t conscious of the fear bias and voluntarily believes that one the question as to the extent a implanted in the brain. side ought to be punished. mediator may employ psychologi- Indeed, this brings up the very Where then does one draw the cal or emotional devices to appeal notion of free will in the first place. line? If a trial lawyer obtains a jury to a particular party. If a mediator If you want a quick dive into why verdict through psychological gam- were to play on the heartstrings it’s arguable that humans lack total ing, can a mediator do the same to of a litigant to get movement in free will, look into split-brain stud- get one party to settle? When has a case, has the mediator violated ies. Split-brain studies are literally a mediator overstepped his or her this standard? just that – studies of human behav- bounds in making different types Let’s look at it from another ior after the two hemispheres have of arguments to persuade one perspective. The Oklahoma been separated, thereby preventing party to move on an issue? Supreme Court has made it clear communication between the left Or, to make it less sinister, that a right to trial by jury in our and right hemispheres. we could look at a very com- Constitution means the right to In one such study, participants mon situation. The parties have a fair and impartial jury.1 If our were given an electrical stimu- been mediating 8 hours, every- Constitution does indeed guaran- lation that compelled the partic- one is tired, and the parties are tee a fair and impartial jury, what ipant to stand up. When asked extremely close. Everyone is are we to make of the trial tech- why the participant stood up, the excited at the prospect of getting nique known as the Reptile? The participant provided a rational the case done, and then, simply to Reptile method of trying cases justification like, “‘Oh, I need to be finished, one side finally caves. basically posits that if you are get a drink.’”2 However, the actual The paperwork is signed, and one capable of exploiting the “reptil- reason the person stood up is party goes home and sleeps on it, ian” portion of a juror’s brain, the not because of the after-the-fact only to wake up the next morn- amygdala, to stimulate fear, then justification, but because of the ing with deep regret. That party the juror is more inclined to side preconscious stimulation. Just like feels as though the mediator or with your client and punish the with the juror who voted in favor the lawyer coerced him or her into other side. Scientific studies have of punitive damages. Because simply signing the deal in the late shown the amygdala will react to the hypothetical juror isn’t being hours of the night and now wants fear-inducing stimuli even when a studied by brain imaging, it’s to back out. We’ve all experienced person isn’t conscious of the fear. impossible to determine whether instances like this. Was the par- In other words, the juror believes the juror is creating an after-the- ty’s free will or voluntary choice he or she is making a rational and fact justification for punishment supplanted by the psychological voluntary decision, but in reality, based upon an unconscious fear pressure of the mediation itself? may in fact not be because he or bias via the Reptile, or really, truly

If a trial lawyer obtains a jury verdict through psychological gaming, can a mediator do the same to get one party to settle? When has a mediator overstepped his or her bounds in making different types of arguments to persuade one party to move on an issue?

18 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL It doesn’t take a master manip- on the same page. Are you playing mediation other than simply how ulator, or even any intentional football or baseball? Is this a case to get to terms and conditions of manipulation, to make a party feel about liability or damages? Both? settlement. We must constantly as though he or she was robbed of Articulating and clarifying the examine and reevaluate our prob- an actual choice. Exhaustion can issues in advance not only saves lem-solving techniques inside the sometimes have that same effect. time but will increase the chances mediation room and the court- For example, in one study scien- of settlement. Why? room in order to ensure that how- tists found, “Experienced parole Because the final lesson is that ever it is we come to resolve our judges in Israel granted freedom information exchange in mediation disagreements, we do it ethically. about 65% of the time to the first is the bedrock to success. The party prisoner who appeared before that controls the information, con- them on a given day.”3 However, trols the mediation. Think about it. ABOUT THE AUTHOR “[b]y the end of a morning session, We’re not just talking about testi- Collin Walke is an attorney and the chance of release had dropped mony and affidavits. We’re talking mediator in Oklahoma City. He almost to zero.” The same effect body language, verbal engage- received his J.D. magna cum laude was seen after the judges returned ments and off-handed comments. from the OCU School of Law in from lunch. The first prisoner had As pointed out in Never Split the 2008. He received the OBA Family a 65% chance of being released, Difference, 7% of personal commu- Law Section Mediator of the Year and the odds decreased thereafter. nication is via spoken words, 38% Award in 2016 and the OBA Golden This is sometimes known as tone and 55% body language. Quill award in 2015. choice fatigue. Some psychologists One might think, then, that a posit that each choice you make mediator has more information ENDNOTES takes away a little bit of your own than anyone because he or she is 1. Parrish v. Lilly, 1993 OK 80, ¶15 (citation omitted). willpower. That’s why you can start in both rooms. However, that’s not 2. Conscious by Annaka Harris, Ch. 5, Note 18. a diet, say no to yummy treats for always the case. Sometimes, law- 3. economix.blogs.nytimes.com/2011/04/14/ a little bit and then be right back yers or clients hedge on informa- time-and-judgment. to eating ice cream for breakfast tion sharing. When that happens, in a week. There’s only so much there is a potential advantage to self-control we can impose upon the lawyer or client and a potential ourselves before our hardwired disadvantage to the mediator. So, biases and preferences kick in. now, who’s manipulating who? If one side never discloses fact SO WHAT? “x” and the parties settle without Just this brief foray into media- fact “x” ever being known, was tion, ethics and psychology ought that mediation agreement truly to cause you to think seriously an “informed” choice as the ABA about a few things. First, what kind standard of conduct requires? of a mediator do you need for your What if a lawyer intentionally case? Do you have a case where slow plays a mediation to frus- both sides really are close to reso- trate the other side in the hopes lution, fairly amicable and only one of gaining something more out of small issue needs to be resolved? it? If the other side is experiencing Or do you have a case where the choice fatigue, should the media- parties are miles apart and both tor stop the mediation? What if the lawyers hate each other? Perhaps mediator doesn’t know one side is this latter scenario requires an FBI truly fatigued? hostage negotiation approach. The next time you think medi- Second, once you’ve selected the ation is about dollars and cents or type of mediator appropriate for child visitation schedules, think your case, what are the real issues again. Mediation is a complex in your case? I can’t fathom how interchange of information with many millions of billable hours are many potential ethical pitfalls. wasted in mediations the world That is why I think it’s import- over by the parties just trying to get ant we take a broader view of

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 19 Alternative Dispute Resolution Why Are We Still Fighting? By Melissa Fell

20 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL HEN HE WAS STILL A PRACTICING COUNTRY LAWYER, Abe Lincoln wrote: W“Discourage litigation. Persuade neighbors to compromise whenever you can … As a peacemaker, the lawyer has a superior opportunity of becoming a good [person].” There is so much to unpack out of these wise words, but most telling is Lincoln was implying attor- neys should strive to be the best kind of person they could through their guidance during the process of legal representation.

What does it mean to be a or come down to a dollar amount forget that we ought to be healers peacemaker? Why even bother when the underlying issue has not of conflict.” But the process doesn’t when we are taught the skills and even been addressed? If the attor- have to look that way. The process rewarded by a judicial system that neys are so focused on the “win,” of alternative dispute resolution is puts parties at odds in courtroom how do they know if or how they designed to allow for exploration battles for a decision with a “win- could have ensured the best result of the “why” with options and ner” and a “loser”? By default, for their client? solutions in ways not available when a judge or other decision The path of peacemaker is not an when strictly interpreting and maker has to decide between easy one. For many, once the court- following statutes and case law. It differing sides, it must be based room skills are embedded in their takes emotional intelligence to help upon the information presented routine, it becomes second nature the client identify why they are within the process, limited by the to identify the conflict, choose the there, deconstruct the conflict and abilities of the attorneys and/or desired outcome and build the case explore much more intimately the parties themselves providing the around the outcome desired. Clients needs, interests, concerns, fears and information within the parameters become willing participants in other motivating factors at play. of the laws governing the process. this process, enticed into develop- This takes time, patience and If an attorney believes they have ing their positions from the outset. most importantly, listening – the the better facts and case, all the “What do you want?” is the first kind of active listening that means more reason to forge ahead to the and continued focus once they cross you are engaging with the client battleground to prevail. the threshold. The judge becomes and working to draw out those The whole process is, by design, the arbiter of the outcome, and motivating factors that will help a gladiator battle, with kudos and typically either the client gets more fully resolve their issue and recognition awarded to those who what they want or not, thus the lead to creative and construc- prevail. A win often leads to more “win or lose” paradigm. tive solutions, listening that may cases as it may be used for advertis- Even the late Supreme Court provide not just a resolution but ing, awards and accolades, which is Chief Justice Warren Burger voiced healing of the divisiveness that all great for the attorneys and their his concern over the misguided led to the dispute in the first place. firms, but who does it really serve aim of the legal profession when he The task of the attorney can and other than them? How does it serve claimed, “The entire legal profes- should be so much broader than the best interest of the client? How sion … has become so mesmer- just to take a client and process do you resolve an issue around ized with the stimulation of the them to a win in front of a judge something that cannot be “split” courtroom contest that we tend to who may never address the

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 21 underlying issues at hand. No each has given up enough to call up what they thought they really peace comes from the process in a draw, where the mediator “beats wanted and take less as a compro- that manner. With an attorney each side up” until they relent mise. In our fervor to vigorously who is focused on interests rather enough to come to a more middle represent our clients, the patience than concrete positions, the result of the road compromise. When the required to be a peacemaker becomes an outcome the parties attorneys and neutrals create a true becomes increasingly daunting as we continue to assert the positions of our client. But it need not be so. By refocusing on the underlying interests, we may provide the peace and opportunity for problem solv- ing and thus healing. A successful attorney and neutral should close a case not celebrating a “win,” indicating there was a “loser” but rather secure in the comfort that the clients were brought a resolu- tion that best worked for them and their situation. We all bring more peace into the lives of our clients and ourselves. So, I ask, why are we still fighting?

Author’s Note: Inspiration for the article came from lawyers David Hoffman and Kevin Scudder from design and own as they walk away problem-solving atmosphere, we their contributions to the book titled from the process. become a part of the solution rather Building a Successful Collaborative I would challenge the use of the than the conflict. Family Law Practice by Forrest S. word “compromise” as used by The lawyer sets the tone from the Mosten and Adam B. Cordover. the venerable lawyer from Illinois time they first interact with a client for today’s peacemakers. It implies and throughout representation each side is required to give up on in every way they and their staff ABOUT THE AUTHOR certain interests and needs that engage with the client, the other Melissa Fell is a collaborative may otherwise be satisfied through party and their counsel. Clients are attorney, mediator and certified life the process with patience and trust typically vulnerable when working coach. She focuses on assisting in our clients to find the path that with an attorney, taking their cues clients through the process of brings them the best outcome. This from the person they have hired to divorce and related family issues is often the case in mediations guide them and tell them what to outside of the courtroom. Ms. Fell today. Most times, the parties are do. A wise counsel will use caution is an active board member and ordered to mediation or arbitration in engaging the client in the battle president of the Oklahoma Academy by the court prior to proceeding to and instead focus on truly helping of Collaborative Professionals and trial, with the hope they will settle clients find the best resolution for serves as the ADR Section chair for to save their own and the court’s their life that leaves them with more the Tulsa County Bar Association. resources. The biggest disservice an peace and calm than when they first attorney or mediator/arbitrator can came to them. do is start from position statements. If a client is led to believe they They are often rushed, with no should “win” on any point or time allowed for either side to tell points or they “have a right,” they their story. It becomes a pressurized will have that stuck in their mind settlement negotiation of laying out and no doubt leave a mediation positions, then one by one giving up or settlement conference feeling or giving in on those positions until they did not win and had to give

22 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL

Alternative Dispute Resolution Mediation in the Time of a Pandemic: Preparing for the ‘New Normal’ of Online Mediations By Amy J. Pierce

HEN I CIRCULATED A FINAL TERM SHEET on March 4, 2020, to 15 mediation Wparticipants and shook their hands as they left my conference rooms, I had no way of knowing that the practice of law, and in particular the practice of mediation, would be so drastically changed within just a few short days. On March 6, the first case of the novel coronavirus (COVID-19) was confirmed in the state of Oklahoma. By March 15, eight COVID-19 cases had been reported in our state, and Gov. Stitt issued Executive Order 2020-07 declaring a state of emergency in all 77 Oklahoma counties. The governor issued his Fourth Amended Executive Order 2020-07 on March 24, which ordered all businesses located in a county experiencing the community spread of COVID-19 and that were not identified as being within a critical infrastructure sector, to close.

Legal services and lawyers were conduct depositions, meetings 2020, mediators and lawyers alike exempted from the executive order and hearings online or not at all. were busy navigating the world of a day later, but that did not mean The same was true with respect to videoconferencing technology and the business of law could proceed the practice of mediation. Many conducting mediations from their as usual. Oklahoma lawyers were lawyers had previously mediated homes and offices. In just a few advised by the OBA to follow the via telephone with federal cir- short months, conducting online Centers for Disease Control’s guide- cuit appellate mediators and had mediations has now become the lines on social distancing and were heard of “online mediation,” but “new normal,” and based upon the encouraged to work from home in few had actually participated in continued expected delays, travel order to meet their clients’ needs or conducted a mediation solely restrictions and court closures, this and maintain personal safety. The online using video technology.2 “new normal” may be here to stay. Oklahoma Supreme Court issued When it became apparent that Both federal and state courts its own emergency orders, cancel- in-person mediations were not are continuing to limit in-person ling civil and criminal jury trials possible for the foreseeable future, hearings and further suspend jury through July 31, 2020, and suspend- many mediators immersed them- trials. COVID-19 has undoubtedly ing case, statutory and order dead- selves in numerous different online added months, if not years, to the lines for March 16 through May 15, videoconferencing platforms, time it takes for parties to normally 2020.1 In short, the justice system such as Zoom, Microsoft Teams, obtain a jury trial date. It is rea- had effectively ground to a halt Skype, Google Meet or Webex. sonable to assume that mediations by the end of March 2020. While mediation conference rooms will increase in light of continued Lawyers were faced with a remained empty throughout jury trial delays and learning to new reality – figure out how to the spring and early summer of adapt and use online mediation

24 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL technology is necessary if lawyers NOW IS THE TIME TO almost every aspect of our lives, want to continue to serve those INVEST IN TECHNOLOGY we as lawyers must familiarize clients who have engaged them AND LEARN TO USE IT ourselves with technology plat- during this unprecedented time. EFFECTIVELY forms that allow us to continue to While in-person mediations According to recent practice our craft. Indeed, under have cautiously resumed with data from the International the Oklahoma Rules of Professional proper protocols in place, many Telecommunication Union, by the Conduct,4 lawyers are required to practitioners are likely to find that end of 2019, 4.1 billion people, or provide competent representation once the pandemic ends, their 53.6% of the world’s population, to their clients, which includes clients, insurance adjustors and were using the Internet.3 With social maintaining competency in rele- out-of-state counsel may want to distancing being implemented, a vant technology. Spending time continue to remotely participate sharp rise in internet communica- researching and working with a in mediations. As mediators, our tions has occurred. Since COVID-19 videoconference platform is crucial hope is that someday COVID-19 integrated itself into our lives in for attorneys. Zoom and Google will run its course, and we will March 2020, video and audiocon- Meet offer easy to follow video return to the normality of in- ferencing companies have seen tutorials on their website that are person mediations. But the a tremendous increase in users. fairly self-explanatory, and there are reality is many clients and prac- Zoom, one of the more popular pro- numerous online resources that con- titioners have now experienced viders, reported in April 2020 it had tain directions for using this tech- the efficiency and cost savings of increased from more than 10 mil- nology in mediations.5 In the early online mediation, and it is likely lion daily participants in December days of the pandemic, mediators that online negotiation skills will 2019 to more than 300 million daily in my office routinely conducted remain an important part of an participants by April 2020. their own online “test” mediation effective mediator’s and lawyer’s With COVID-19 now empha- runs with family and friends using tool belt. sizing the need for a digital role in the different platforms so they

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 25 their clients prior to the online medi- ation, and lawyers and participants alike should consider the privacy While the various platforms provide security and security of their surroundings in order to take steps to confirm measures the mediator can utilize, practitioners that no unauthorized persons or inadvertent eavesdropping occurs also have an obligation to ensure they and their during the mediation process. Generally, clients should be advised clients take steps to maintain the confidentiality to only participate in online medi- ation from a private location, such of the mediation process. as their home office, with a secure (non-public) internet connection.8

PRE-MEDIATION were familiar with the technology videoconference call. Numerous PREPARATION IS ESSENTIAL prior to using it in mediations. security measures have since been Pre-mediation telephone or It is likewise recommended that implemented that allow a media- videoconferences between the lawyers spend time working with tor to ensure videoconferencing mediator and lawyers for the par- the different platforms to become confidentiality and privacy.6 For ties are crucial prior to conducting familiar with them and engage example, Zoom allows a mediator an online mediation. Specifically, in a test prior to any online medi- to create passwords for mediation the parties should explore during ation. Using these various plat- participants, prohibit participant these conferences whether there forms is not complicated, but it recordings of the mediation and are any specific terms that can be does require practice. “lock” the mediation against unin- agreed upon prior to mediation. It is also important that lawyers vited guests once all participants For example, it is common that invest in quality technology to con- have arrived in the online media- parties can agree on release lan- duct online mediations. Obviously, tion. Zoom also provides an option guage or confidentiality language participants need a solid and reliable allowing the mediator to create prior to the date of their mediation. internet connection and a computer a waiting room so that media- Additionally, spending time pre- with a camera and microphone. tion participants can be screened paring and circulating a form term Many online participants are using prior to being placed in their own sheet between counsel prior to the laptops with built in cameras and separate conference or “break-out” mediation with some basic, agreed- microphones, but cameras can also rooms. Likewise, Google Meet upon language will obviously be added to traditional desktops, will allow the mediator to mute speed up the mediation process preferably with features like full or remove participants and to and make the exchange of the final HD video, a microphone, autofocus, approve requests made by partic- term sheets much more efficient. light correction and 1080p resolu- ipants to join the conference prior Lawyers should also consider tion. With COVID-19 likely lingering to their entry. providing their statements to for an indefinite amount of time, While the various platforms opposing counsel prior to the lawyers should consider taking the provide security measures the mediation. Exchange of mediation time now to invest in and explore mediator can utilize, practitioners statements by the parties prior videoconferencing technology. also have an obligation to ensure to mediation is not necessarily they and their clients take steps to standard practice in Oklahoma, KEEP SECURITY maintain the confidentiality of the but with many cases proceeding CONSIDERATIONS IN MIND mediation process. Pursuant to the to mediation with limited discov- In the first few post-pandemic Dispute Resolution Act, District ery due to COVID-19 delays and weeks when the world was attempt- Court Resolution Act and the Choice restrictions, exchange of the state- ing to adjust to a new online in Mediation Act, communications ments by both parties will assist in workplace, horror stories circu- made during the mediation relating clarifying issues prior to mediation lated about online video secu- to the subject matter of the dispute and is helpful to the mediator. rity. “Zoom bombing” became a are considered confidential commu- Prior to the online mediation, popular term used to describe the nications.7 Lawyers should stress the lawyers should also understand process of hackers “hijacking” a importance of this confidentiality to and plan how they will obtain their

26 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL client’s signature on a final written unnatural process. A participant Barghols Pierce PLLC. She serves term sheet. Some mediators will must speak while looking directly as a mediator and an arbitrator, email a term sheet to the client and into the camera, so the other parties and her practice is comprised of lawyer and have the client print, sign, view the speaker as looking them a broad range of civil litigation, scan and return a signed copy of the in the eye. However, a participant including employment law and term sheet for distribution to oppos- must look at the screen in order to business disputes. Ms. Pierce has ing parties, but this is not always view another speaker’s eyes. This received mediation training through possible. Many clients are unfamiliar process is awkward at first and Harvard University. with such technology, or the parties takes some practice and adjust- may find there is a technical glitch ment. Additionally, hand gestures ENDNOTES that prevents the client from return- and facial expressions can appear 1. SCAD No. 2020-24, was issued by the Oklahoma Supreme Court March 16, 2020, and ing the signed term sheet. A lawyer to be exaggerated by video and can it canceled jury trials for 30 days and suspended can bind a client to a settlement be distracting. An eye roll during statutory, rule or order deadlines in all civil, juvenile or criminal cases for 30 days. The court modified agreement with the client’s con- a videoconference is much more this order in SCAD No. 2020-36 on April 29, 2020, sent, so that the lawyer’s permitted noticeable than an eyeroll across extending this suspension period from March 16, 2020, to May 15, 2020, and rescheduling all civil signature on the term sheet may be the space of a conference room. and criminal jury to dockets to the next available sufficiently binding.9 Alternatively, Background noises are also harder docket after July 31, 2020. 2. “Online mediation” is not to be confused programs such as DocuSign and to filter out during online media- with “cyber mediation.” A “cyber mediation” is a Adobe exist that allow for the tions. Participants should turn off fully automated system using software to create a “range” of settlement for the participants. Domke exchange of digital signatures. notifications on their computers, on Commercial Arbitration, §3:33. Oklahoma has adopted the phones or other devices prior to 3. www.itu.int/en/ITU-D/Statistics/Pages/stat/ default.aspx. Uniform Electronic Transactions logging onto the mediation. Most 4. Rule 1.1, Comment 6, of the Oklahoma Act (UETA), 12A Okla.Stat. §15-101 applications will allow you to Rules of Professional Conduct requires that et seq., which may allow an elec- “mute” yourself while others are lawyers should keep abreast of changes in the law and its practice, including the benefits and risks tronic or digital signature to bind speaking, which will cutdown on associated with relevant technology. the parties to a contract in certain background interference. 5. In April 2020, the Office of Dispute Resolution for the Supreme Court of Michigan published a circumstances, but the parties must A helpful tool to prepare for guideline called Using Zoom to Conduct Online be in agreement to conduct such online mediation preparation is Mediation: Considerations and Resources for Community Dispute Resolution Program Centers, 10 transactions by electronic means. the 10th Circuit Court of Appeals’ which provides an excellent tutorial of how to use To avoid signature pitfalls, law- “Videoconferenced Arguments Zoom as a mediator and includes links to several other helpful articles. courts.michigan.gov/Administration/ 12 yers and mediators should con- Guide.” The guide provides prac- SCAO/OfficesPrograms/ODR/Documents/Zoom%20 sider entering into an agreement tical tips for videoconference oral Online-Mediation%20Considerations%20v1.pdf. 6. Zoom 5.0 was released April 27, 2020, and is among the parties to the mediation, arguments that translate well into touted as using the most secure encryption standards. acknowledging the mediation is online mediation. Another excellent 7. 12 Okla.Stat. §§1805, 1824 and 1836. 8. Mark D. Zukowsi, “Online Mediation Goes being conducted by electronic resource is the Harvard Business Mainstream,” 56 Ariz. Att’y 38 (2020). means and providing the parties Review video titled “How to Make 9. Oklahoma law requires express authority 13 for attorneys to bind their clients to settlement may exchange electronic or digital Virtual Meetings Feel More Real.” agreements. Hays v. Monticello Retirement signatures on any final mediation Estates, LLC, 2008 OK CIV APP 74, ¶8, 192 P.3d 11 1279, 128; Scott v. Moore, 1915 OK 850, ¶1, 152 term sheet. Thinking through and CONCULSION P. 823, 824 (attorney has no authority to settle a preparing for how the signatures We as mediators are hopeful lawsuit without the specific authority of his client). 10. Id. at §15-105(b), Rich v. DCT Enterprises of will be obtained at the end of a that we will return to the world of Oklahoma, Inc., 2018 WL 9816098 (W.D. Okla. June 5, successful mediation will ensure a regularly scheduled, face-to-face 2018) (party who digitally signed an arbitration agreement was compelled to arbitration pursuant smoother online resolution process. mediations, but lawyers should be to the UETA); Kluver v. PPL Montana, LLC, 2012 prepared that our “new normal” MT 321, 293 P.3d 817 (email sent by party’s ONLINE COMMUNICATIONS lawyer accepting terms of a mediation agreement may now consist of some form of constituted the party’s “electronic signature” on REQUIRE EFFORT AND online mediation practices and the mediation agreement, pursuant to Montana’s PRACTICE should take steps to acclimate version of the UETA). 11. Cynthia Ford, “It Was Late; The Printer Was Eye contact is a foundation for themselves and their clients to Down,” 38 Mont. Law. 32 (March 2013) (providing communication in humans, and these possible changes. form language for use of electronic signatures in mediations). direct eye contact in a mediation 12. See Videoconference Arguments Guide, is essential for both the mediator The United States Court of Appeals for the 10th Circuit, www.ca10.uscourts.gov/clerk/ and the participants. However, ABOUT THE AUTHOR videoconferenced-arguments-guide. making “virtual” direct eye contact Amy J. Pierce is a partner at the 13. Harvard Business Review, “How to Make Virtual Meetings Feel More Real,” (April 6, 2020) in an online mediation is at first an Oklahoma City law firm of Hampton www.youtube.com/watch?v=zchEneW2890.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 27 Alternative Dispute Resolution Informal Resolution of Title IX Cases in Higher Education An Analysis of ADR Opportunities Under the New Regulations By Michael J. Davis

N MAY 26, 2020, THE U.S. DEPARTMENT OF EDUCATION released its most recent Oregulations on sexual harassment, including sexual assault as a particularly egregious form of harassment, under Title IX of the Education Amendments Act of 1972.12 These regulations presume about 25% of all Title IX grievances will be resolved by a method of “informal resolution” through alternative dispute resolution (ADR) following the effective date of the regulations.3 The regulations have been challenged by multiple federal lawsuits and are potentially subject to injunction, but otherwise became effective August 14, 2020.4

Section 106.45(b)(9) of the final complaint, with the voluntary con- Title IX resolution by ADR regulations explicitly permits the sent of both the complainant and methods is required by regula- pursuance of “informal resolution” respondent, which may encourage tory language to be “reasonably of all Title IX investigations initi- some complainants to file a formal prompt” in the same manner as a ated by a college or university sys- complaint where they may have full investigation. The autonomy tem with the voluntary, informed been reluctant to do so if a full of colleges and universities is and written consent of the parties.5 investigation and adjudication was rather broad in terms of choosing The ADR methods permitted the only option.”6 The Department the method of resolution within include mediation and restorative of Education defends the informal these ADR processes, as the justice techniques, so long as the resolution process as a measure to Department of Education states claim does not involve allegations protect the “complainant’s auton- institutions “retain the right and that an employee harassed or omy” when they wish to pursue ability to use the disciplinary pro- assaulted a student. Since many remedies but avoid the perhaps cess as an educational tool rather Title IX claims are instead student intimidating due-process trappings than a punitive tool because the against student or take some other of a full formal investigation, hear- grievance process leaves recipients form, this means ADR is a permis- ing process and right of appeal on with wide discretion to utilize sible method of handling Title IX the part of the accused.7 To state the informal resolution processes and cases at institutions of higher edu- matter more succinctly, footnote does not mandate or second guess cation across the country for the 463 of the final regulations states, disciplinary sanctions.”9 However, vast majority of Title IX allegations. “Informal resolution may present no institution is permitted to The regulatory preamble states a way to resolve sexual harassment mandate ADR as a condition of that such pathways to resolution allegations in a less adversarial enrollment, employment or partic- are “alternatives to a full investiga- manner than the investigation and ipation in the institution’s Title IX tion and adjudication of the formal adjudication procedures.”8 regulated activities.10 Additionally,

28 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 29 requiring mediation as a remedy parties with or without a mediator, agreement through dialogue are to exhaust prior to formal resolu- an admission by the accused party likely not going to be able to reach tion is also prohibited.11 of responsibility for their actions and agreement in good faith. If litiga- The rationale behind permitting willingness to accept specified sanc- tion or a criminal investigation is ADR in Title IX processes is based tions and agreement to a written, likely, there is a risk information partly on attestations that victims binding document written by the shared in the mediation may prefer having the choice of more institution as an author. However, become disclosable to law enforce- informal options.12 The Department since affirmative written agreement ment authorities or civil deposi- of Education also points out that with a final outcome is required by tions in a manner the parties may ADR resolution options have the the parties for ADR under Title IX, not expect. Finally, if the parties potential benefits of shortening the arbitration is not a permissible route are imbalanced by one having an time of resolution, increasing the of informal resolution, since tradi- attorney and the other without, input of the parties in achieving tional arbitration means that a deci- concerns of coercion within the a customized outcome and even sion is made by a third party without mediation are warranted. potentially increasing the chances the explicit consent of the parties as Before agreeing to mediation, of a sense of justice and intent to to the final determination. an institution of higher education comply with agreed-upon deci- should make an independent and sions.13 Institutions are still free to MEDIATION UNDER TITLE IX objective determination that the avoid offering informal resolution Mediation can be a beneficial disposition of the investigation processes, but it is clear that such and productive exercise in resolv- would benefit from an attempt to avenues to resolution may have ing conflict in Title IX disputes achieve a mutual agreement with potential benefits, especially since primarily because the resolution is the help of a mediator. This anal- the scope of ADR under Title IX designed, in detail, by the disput- ysis can consider whether there is is permitted to produce outcomes ing parties themselves.17 Research or was any hesitancy on the part of that still punish a respondent who has shown that when parties the complainant or respondent in committed misconduct. In terms design their own resolutions to agreeing to mediation, the nature of offering finality, the Department disputes, compliance with the of their questions or concerns about of Education says they expect terms of those agreements is more mediation and whether any pres- agreed-upon ADR resolutions likely.18 However, because cases sure has been exerted upon them to be binding once signed in the of sexual harassment and assault by third parties to be more agree- same manner as a contract.14 are extremely sensitive, sometimes able to mediation than they seem Prerequisites to ADR under Title with simultaneous ongoing crimi- otherwise inclined. Once these IX include written notice to the nal investigations, not every inves- gatekeeping factors are cleared, the accused, disclosure of the allega- tigation will be appropriate for parties should be reminded they tions in detail, disclosure of any mediation – in fact, very few will. can end the informal mediation requirements of the informal resolu- In 2011, the Dear Colleague process at any time.20 A trained tion process, information about any Letter distributed as sub-regulatory mediator, someone who has no prohibitions on resuming formal guidance to colleges and univer- connection at all to either party, process, the right to withdraw from sities by the U.S Department of should facilitate as the mediator in ADR prior to a final agreement and Education, which has since been an objectively neutral and nurtur- notification of potential disclosabil- withdrawn, actively discouraged ing manner, without bias, prejudg- ity of records kept regarding the mediation as a resolution method, ment or proposals of their own informal resolution process.15 especially for sexual assault ideas for resolution. cases.19 While mediation is not TYPES OF ADR PERMISSIBLE explicitly discouraged under the AGREEMENT-BASED UNDER TITLE IX new regulations, there are prac- RESOLUTION The regulations specifically tical considerations for hesitancy Agreement-based resolutions mention mediation as a potential on the part of the institution prior have been used for many years ADR method, but other methods of to any mediation, even if it is in Title IX processes at colleges informal or agreement-based reso- sought by the parties. Parties who and universities and are one lution are permitted by implication are actively hostile, have vastly of the most common informal under the phrase “or other informal diverging interests in the outcome resolutions currently used.21 An resolution.”16 These include the nego- or who have exhibited behaviors agreement-based resolution is a tiation of a binding agreement by the not conducive to achieving an proposed agreement that comes

30 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL fully-formed either from a party through all the intimidating trap- when the circumstances have or from the institution itself and pings of the formal Title IX process, favorable hallmarks of a likely not as a result of dickering terms such as forensic interviews, pro- success. These hallmarks include in a mediation. In a typical situ- duction of an investigative report, a generally agreeable parties, clearly ation ripe for agreement-based hearing and administrative appeal. articulated and fair preferred resolution, a complainant contends However, the exact nature of the outcomes, open-mindedness, an they have a preferred outcome sanction itself may be a major absence of vendettas or malice they wish to see implemented to factor in their willingness to agree. and a strong interest in finality or end the Title IX investigation, and If the conduct was severe, such as a avoiding more formal and intimi- the specified outcome is one the physical assault, an institution may dating settings for resolution. respondent might be agreeable rightly be unable to accept ending towards. An example is a case the Title IX investigation for any where a complainant who feels agreed-upon sanction short of sus- ABOUT THE AUTHOR harassed by sexual text messages pension, and the complainant may Michael J. Davis, J.D. is the Title IX from the respondent wishes for have similar concerns as well. But coordinator at Southeastern them to cease and desist and for for a vast array of cases, suspen- Oklahoma State University and the university to enforce such sion is not the preferred outcome an assistant professor of criminal desistance by implementing a of any party, including the insti- justice. He currently serves on no-contact agreement between tution itself, and an agreement to the OBA Board of Governors, the parties. Because this preferred lesser sanctions has a much greater representing Judicial District 2. outcome is not so bold as suspen- chance of likelihood. sion or expulsion and seems to ENDNOTES be reasonable even if the respon- WHEN NOT TO IMPLEMENT 1. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving dent believes the conduct was not ADR UNDER TITLE IX Federal Financial Assistance; Final Rule, 85 Fed. harassment, an agreement-based While the new regulations do Reg. 30,026 (May 19, 2020). 2. 20 U.S.C. 1681 et seq. resolution may be both possible not have many prohibitions on 3. 85 Fed. Reg. at 30,569 n.1970. and fair. Indeed, the implemen- informal resolutions in Title IX 4. 85 Fed. Reg. at 30,026. 5. Id. at 30,578. tation of the agreement by both cases, and in fact seem to encour- 6. Id. at 30,083. parties’ signatures takes the age their use, even the Department 7. Id. at 30,086. 8. 85 Fed. Reg. at 30,098 n.463. harsher sanctions effectively off of Education states they only 9. Id. the table and offers peace of mind expect 25% of cases to end through 10. Id. 22 11. Id. to the parties that the investiga- informal resolution. Every insti- 12. National Academies of Science, Engineering, tion is over without appeal and tution of higher education should and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic has finality. In cases where more appreciate the distinct interests at Sciences, Engineering, and Medicine (Frasier F. creativity is needed to draft an stake by all parties involved in a Benya et al. eds., 2018). 13. 85 Fed. Reg. at 30,400. agreement, the likelihood of dis- Title IX investigation, which are 14. Id. at 30,405. agreement is heightened. Nearly not just limited to justice. Both 15. Id. at 30,578. 16. Id. at 30,055. all agreement-based resolutions complainants and respondents 17. Adam Laytham, Mediation and are predicated on the respondent care deeply about their dignity, the Misconduct: A Better Way to Resolve Title IX being permitted not to admit a feelings of friends and family and Disputes, 2020 J. Disp. Resol. 191 (2020). 18. James A. Jr. Wall & Ann Lynn, Mediation: policy violation. their public image and reputation. A Current Review, 37 J. Conflict Resol. 160 (1993). Due to all these overlapping and 19. Office for Civil Rights, U.S. Dep’t of Educ. Revised Sexual Harassment Guidance: ADMISSION AND sometimes conflicting consider- Harassment of Students by School Employees, AGREEMENT TO SANCTIONS ations, a majority of cases may not Other Students, or Third Parties, 3-12 (2001) [Rescinded]. www2.ed.gov/about/offices/list/ocr/ There are times in Title IX result in informal resolution even letters/colleague-201104.pdf. investigations when a respondent if such a resolution is attempted 20. 85 Fed. Reg. at 30,578. 21. Gene Roberts & Kay Elkins Elliott, Title IX admits their misconduct, expresses and fails. Sometimes the attempt Mediations: An Initial Review, 23 Alternative Resol. remorse and expresses a willing- and failure only harden positions 35 (2013-2014). 22. 85 Fed. Reg. 30,067. ness to submit to fair sanctions. and make the investigation and Once an admission is documented hearing even more acrimonious. as part of an investigation, a For these reasons, Title IX coordi- respondent often has a much nators and other higher education greater willingness to agree to be administrators should be careful sanctioned without continuing to utilize these ADR options only

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 31 Alternative Dispute Resolution Foundations for Family Law Mediation By Grant Brown

AMILY LAW COURTS OVERWHELMINGLY ORDER COUPLES to mediation before Fsetting a case for trial. As an alternative resolution measure, it’s a viable way for couples to resolve the issues in their case with less acrimony and for less money. That’s the “why” that lands couples in mediation. Success then largely rests in the mediator’s hands. To be a mediator requires the skill to create a conducive environment, as well as understand the settlement process. It’s as much about the “how” as the “what.”

As soon as the couple sets foot third party typically biased against You have to listen to people and in the office, the environment the other side. stop talking. If the mediator talks created takes center stage. These Regarding formality, some of the entire time, it shows no empa- are couples tasked with dissecting the conventional rules for attorneys thy toward the party – and, often, every aspect of their personal lives – should be eschewed. For example, the horrible situation. This does from the cars to the house to the there’s nothing wrong with ditch- nothing to settle the case. Anything kids. Litigants should be made com- ing the traditional suit and tie in the mediator can do to relay a sense fortable, and that includes assigning favor of casual clothing, maybe of commonality, of actually caring, them separate rooms with their even shorts. I frequently mediate leads to success, not failure. respective attorneys. In the presence in shorts, and all the attorneys who of the opponent, most people won’t mediate with me know this is a THE MEDIATION STARTS NOW say what they want and think.1 I possibility. It’s the mediator’s task Moving past setting the scene, I get farther faster with litigants in to create the dynamic between the have a game plan I follow. I always separate rooms versus staring at parties that accommodates their start with a speech. The speech is each other from across the table. individual needs and a path to a not about me – I have learned over Another tip: provide sustenance – legal resolution. Suits scare most the years that no one cares about they are in for a long day. litigants. When I walk in with my accomplishments or accolades. As an important factor, I only shorts on, it puts the parties at ease, I have always viewed a 20-minute allow third parties in extremely and if they were at a nine on the introduction of how wonderful rare circumstances. The third-party stress level, it often immediately the mediator is and how success- friends and family members offer- drops to a five. The more relaxed ful they have been in their lives ing their personal advice to the the litigant, the more rapport they as a waste of the litigants’ time litigants is often the reason they are develop with the mediator, and the and money. My speech instead litigating and in my office in the likelihood of successful mediation informs each party of the prac- first place. These parties were able increases exponentially. tical concerns and information to have and raise children together, I understand this is against they need to understand so we acquire assets and debts together. every old-school rule that exists, can effectively mediate. Everyone They should be making the deci- but people want empathy, and too feels more at ease when they sions related to these issues, not a many mediators lack that quality. understand the process before

32 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL diving into the deep end. This is also the mediator’s first chance to set the tone, get them smiling and convince them to trust this person offering advice about their assets and children. Before moving into the sub- stance of mediation, make sure both parties understand this is not a trial. The mediator is not the finder of the truth nor facts. The litigants need to realize this is their opportunity to settle their dis- putes on terms they can live with instead of taking their case into the unknown at the courthouse – they hold the final decisions in their hands. The next step is into the courtroom in front of their judge who tells them what will happen with their kids and their property. Help them understand they still control the outcome with mediation. There’s much more left to chance should they fail to agree and move to trial. Once the initial framework is in place, the mediator transitions to identifying the issues. From the onset, listen. Identify what’s important to that person. What are the primary concerns? Money? Custody? Property? All the above? Find out what each party wants, whether it’s legally viable or not – addressing legalities comes later. Each party wants to present their case, and just having the chance

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 33 The term “counselor” factors heavily into the mediator’s role, both in the legal and practical sense of the word.

to be heard by someone and “say is defined as an opinion, thought I understand this may not be a my piece” goes a long way toward or idea on how to settle a case. popular thing to say, but it is true. likely resolution. A mediator with no opinion or It’s a problem I have witnessed too What may be important to ability to think outside the box is many times to not mention it in one side may be the least import- again a waste of time and money. this article. ant issue in the other room. It’s There is no harm in sharing important to understand this from an opinion, so long as the liti- MEDIATION ADVERSITY the beginning, as these are the key gants understand and have been AND HOW TO HANDLE IT negotiation points for settling the instructed the mediator’s opinions At some point, a mediator faces case. I generally do not leave the first should never be substituted for hostile or difficult litigants. What room without an offer that covers the legal advice of their attorney. do you do with the challenging all issues that need to be addressed Many times, the mediator rein- party? Enter the room under- in order to have a final agreement. forces what the party has already standing that one person may not That seems like a daunting task but heard from the attorney, and a want to be involved in this case consider this: going back and forth good attorney stays out of the way in the first place. Or that years of multiple times without a firm offer in the periphery for legal advice. abuse have taken their toll. Or that addressing all the issues wastes time In some of the best mediations, there’s money exchanging hands and money. Get to the point, get the attorneys don’t say anything! that this person resents handing there quickly and then get into the I have experienced litigants over. Or suffering from a physical other room and figure out what the begging me with their eyes to get or mental illness predating any of other side loves about the proposal their case settled by any means, this process. A successful media- and what they hate. The faster this is all the while the respective attor- tor needs soft skills to diffuse the done, the better. ney is strongly advocating to not acrimony, to be the calm in the settle or creating such terms that tempest. Again, listen. Empathy WORKING THROUGH it becomes unreasonable to settle. must take center stage at this point THE PROCESS This is dangerous and difficult in the mediation. If you hit a sore After the concerns and desired to watch. A good mediator can subject with a litigant, recognize it outcomes are on the table, begin usually tell within the first 30 quickly and pivot to other issues weaving through the expectations minutes if the attorneys want the in order to build more confidence of reality – what each litigant is case settled or if today is just a before circling back around. likely to “get.” It’s an opportu- good billing opportunity – they All the above seems time con- nity to educate regarding the law want to keep on the litigation train suming. It is, and it isn’t. The old applied. The term “counselor” to trial. Derailing this train is a adage “go slow to go fast” applies factors heavily into the mediator’s difficult part of mediation, but to the entire mediation process. role, both in the legal and practi- it’s not about the attorneys’ wants With the foundation in place, the cal sense of the word. A mediator and wishes. Rather, it’s about shift to legal work begins. Take cannot give legal advice, but this the litigants and getting them each expressed issue to task. Match does not mean we cannot share to an agreement they can live the wish to the legal reality. Take practical advice. Practical advice with so they can stop litigating. the time to explore every detail.

34 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL For example, should the support time, somebody disagrees with that becoming a mediator finds alimony provision carry a com- the wording, wants a change or you, based upon personality and mensurate life insurance policy? realizes the mediator has missed other intangibles that most people Exactly what time and at what gas some important aspect of the in general (including attorneys) station or police station should the agreement. The parties then get to do not possess. It’s tough to put parties exchange?2 The proverbial pay the attorneys to remedy what a finger on what makes a good devil is in the details. Experienced could have been avoided by taking mediator. Is it empathy? Is it a mediators address the fine print the time at mediation to do it the smiling face? Is it the knowledge before sending parties out the right way. and ability to tell people when door to draft final documents. they are being unrealistic? Maybe Again, don’t be afraid to share an WHAT DOES IT TAKE TO BE it’s the shorts! The exact answer is opinion. Mix the practical with the AN EFFECTIVE MEDIATOR? difficult to pinpoint. What makes logistical and the legalities. Most Now we come to the realities a great quarterback? What makes importantly, do not leave the room of being a mediator. Put bluntly, a great baseball player? Most peo- without an offer. The mediator’s not everyone is destined to be a ple say it is the intangibles those role is to guide everyone to a res- mediator. While this may not be a people possess, but very few can olution, and that cannot happen popular statement, it’s the practical explain what those mean. Those without concrete, detailed offers truth. How many times have we qualities that a person has dis- and provisions. gone to a mediation and walked tinguish them from the majority away thinking, “This mediator of the people in their industry. I WRAPPING UP A MEDIATION – was a waste of time and money.” believe these soft skills are some- PUT IT IN WRITING Mediating with someone ineffec- thing you either have or you don’t. This entire process must repeat tive is not only frustrating but can The majority of those who men- with the other party. Once the further harm and sabotage the tion they want to be a mediator parties reach an agreement, put it case. These flawed mediations will draw an instant reaction of either in writing. I have seen the fallout often mislead the parties regarding two things: they could actually be from litigations with dysfunctional or incomplete mediation agree- ments. Take the time to be thor- ough! Handwritten, abbreviated gibberish on notebook paper leads to misunderstandings when the attorneys try drafting the final doc- uments. It often renders the entire mediation useless and becomes a source of frustration to the parties who thought they agreed to one thing, but the chicken scratch indi- cates something else. The mediation agreement will become the playbook for attorneys and parties when they put pen to paper. Have everyone review the thorough, typed mediation agreement, review it in full in each room and have all parties and counsel execute a signed the law and, even worse, the likely a good mediator, or this will be a copy before they leave. I have outcome of issues before the court. disaster if this person did a medi- also seen catastrophes when the I frequently hear attorneys ation. Of course, one would never mediator types up the mediation say, “I’m thinking of getting say this out loud, and I encourage agreement later (or delegates it into the mediation business.” I anyone who wants to try medi- to staff) and then circulates it do not believe one “gets into the ation to take some initial steps. I with the attorneys. Almost every mediation business.” I believe would encourage those that are

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 35 considering throwing their hat conducting a large number of tends to save clients money and into the mediation ring to find virtual mediations, this may be save the attorneys additional time. several good mentors, mediators our new normal. My settlement In our industry, time is everything. they can shadow and observe how rate has not changed from in- Mediating your case is a smart way they operate. I do not believe there person mediations to virtual to litigate and is most likely to result is such a thing as the perfect medi- mediations. A mediation is either in a reasonable outcome for your ator. The best mediators utilize the going to work or not, regardless of client, which results in their happi- positives they gain from watch- the setting. Those who previously ness. Isn’t the goal of every litigator ing other mediators and quickly refused to embrace the new tech- to obtain a reasonable outcome for develop a list of “things not to do” nology and this new normal have our clients and make them happy? I during the process. Learn what either jumped on board quickly or urge everyone who has not consid- worked and what led to disaster. will slowly fade away. ered mediation as an alternative to This information can be derived Attorneys from remote counties imminent litigation to give it a try, by mentoring, training and being enjoy participating in virtual media- and by all means, try it in shorts. observant while participating in tions because they save the hassle of mediations while representing driving to and from the mediator’s Author’s Note: I'd like to thank your clients. I have pieced together office located in other cities. This Kelsey S. Holder, an assistant a mental database of what works time saved from traveling translates professor of legal writing at the and what does not work through to additional opportunities to work TU College of Law, who helped experience. This is something I on their other cases, which results edit this article. believe training cannot teach a in more opportunities to earn person. It’s analogous to graduat- money. The other added benefit is ing from law school and thinking you can participate in the comfort ABOUT THE AUTHOR you are ready to conduct a murder of your own office, which translates Grant Brown is a partner with The trial. Experience is everything. to higher productivity while the Firm on Baltimore PLLC in Tulsa. mediator is in the “other virtual He primarily focuses on family THE NEW WAVE OF room.” With the onset of virtual law and has successfully settled MEDIATION – WHERE mediations, I have found myself over 1,000 family law cases as a ARE WE GOING FROM HERE? no longer in the minority of those mediator. He received his J.D. from The times we live in are dras- who mediate in shorts. the TU College of Law. tically changing when it comes It’s taken time, reflection and to practicing law and conducting refining to grow my mediation ENDNOTES 1. It is essential to be apprised of any mediations. With the global pan- practice. I became a mediator by protective orders in place. Advise legal staff and demic, litigants and attorneys are accident. As it so happened, I was have a system in place to keep parties separate in this instance. finding it more difficult to get res- the only other attorney in a court- 2. As an aside, unless there are protective olutions through the court system. room while two attorneys fought order concerns or convincing reasons, I Mediation becomes the most cost- it out over their choice of medi- strongly discourage gas station and police station exchanges. Nobody wants to wait in effective and quickest way to obtain ator. The judge turned and said, a convenience store parking lot and entertain a resolution, including temporary “How about you use Grant?” As I children for chronically late people, nor do we want children associating the police station as relief that is not otherwise available. was friends with both attorneys, where they go to see mommy or daddy. Attorneys who are accustomed I agreed even though I had never to mediating their cases in per- acted as a mediator in a case at son are struggling with the new that time. One mediation became concept of virtual mediations a few, then became many, and now such as Zoom or BlueJeans. While mediating comprises approximately conducting a mediation in person 50% of my practice, averaging is certainly the most effective way 20-25 mediations per month. to successfully settle a case, the Insight into the “why” and “how concept of virtual mediations has to” of mediations is important for taken off. Everyone, including any practitioner regardless if they myself, was skeptical about virtual are conducting or participating in a mediations and their effective- mediation. Careful planning, atten- ness. I am convinced now after tion to detail and being thorough

36 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL free CLE FOR MEMBERS: Oklahoma Bar Association 2020 Virtual Annual meeting

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Nominating Petition Deadline was 5 p.m. Friday, Sept. 11, 2020

OFFICERS Supreme Court Judicial NOTICE President-Elect District Seven Pursuant to Rule 3 Section 3 of Current: Michael C. Mordy, Ardmore Current: Matthew C. Beese, the OBA Bylaws, the nominees for (One-year term: 2021) Muskogee uncontested positions have been Mr. Mordy automatically becomes Adair, Cherokee, Creek, Delaware, deemed elected due to no other OBA president Jan. 1, 2021 Mayes, Muskogee, Okmulgee, person filing for the position. Nominee: James R. Hicks, Tulsa Wagoner counties Terms of the present OBA offi- Oklahoma Bar Association (Three-year term: 2021-2023) cers and governors will terminate Vice President Nominee: Benjamin R. Hilfiger, Dec. 31, 2020. Current: Brandi N. Nowakowski, Muskogee An election will be held for the Shawnee Member At Large position. The (One-year term: 2021) Member At Large Oklahoma Supreme Court has Nominee: Charles E. Geister III, Current: Brian K. Morton, issued an order (SCBD 6938) Oklahoma City Oklahoma City allowing the OBA to conduct its Statewide Annual Meeting in an alternative BOARD OF GOVERNORS (Three-year term: 2021-2023) method to an in-person meeting 2020 Virtual Supreme Court Judicial Nominee: Cody J. Cooper, allowing delegates to vote by mail. District One Oklahoma City Ballots for the election were mailed Current: Brian T. Hermanson, Nominee: Elliott C. Crawford, Sept. 21 with a return deadline Newkirk Oklahoma City of Friday, Oct. 9. Runoff ballots Craig, Grant, Kay, Nowata, Nominee: April D. Kelso, would, if needed, be mailed Oct. 19 Osage, Ottawa, Pawnee, Rogers, Oklahoma City with a return date of Monday, Nov. 2. Washington counties Nominee: Kara I. Smith, Annual meeting (Three-year term: 2021-2023) Oklahoma City Nominee: Michael R. Vanderburg, Ponca City

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40 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL

Women in Law Committee 5 Women Honored for Leadership Mona Salyer Lambird Spotlight Award

HE SPOTLIGHT AWARDS hosts with her colleagues from volunteer and philanthropist. Her Twere created in 1996 to annu- McAfee & Taft. The event brings passion and determination shed ally honor five women who have women law students together with light on how she excels in such distinguished themselves in the women lawyers from the bench, disparate capacities. legal profession and who have private practice, nonprofits and Born in Tulsa in 1969, her lighted the way for other women. industry for straight talk conver- interests led her into law. By The award was later renamed to sations about issues and concerns 1997, she graduated from the OU honor 1996 OBA President Mona women face in practice that are not College of Law and began prac- Salyer Lambird, the first woman typically discussed in the classroom. ticing family law. In 2013, she to serve as OBA president and one Ms. Blue has long been active joined Phillips Murrah PC, where of the award’s first recipients, who in the TU College of Law’s Alumni she leads the firm’s Family Law died in 1999. Association, chairing various Practice Group with a focus that This is the 24th year for the committees and serving as its includes complex custody, valua- awards to be presented by the president. She currently serves tion issues, general civil litigation OBA Women in Law Committee. on the Dean’s Advisory Board. In and appellate matters. The 2020 award winners will also 2017, she received the Tom Coffman Ms. Edwards is a community be honored at the 2021 Women in Community Service Award and leader. Her 20-year dedication to Law Conference. was inducted into the TU College Positive Tomorrows, a school for of Law’s Hall of Fame. She is TU’s homeless and at-risk children, Rachel Blue 2019 Fern Holland Award recipient. includes being past president and After receiv- She volunteers as a lector at a four-term board member. She is ing her J.D. from Christ the King in Tulsa, where she a member of the Oklahoma City the TU College and her husband, Tom Vincent, also Ballet Board of Trustees, president- of Law in 1988, serve as mentors for engaged couples elect of the Oklahoma Single Rachel Blue preparing for marriage. Active on Parent Scholarship Program and went to work the Board of Directors for the Tulsa was a founding member of the in Washington, Day Center for the Homeless, she OU Women & Gender Studies D.C. for the has served in several roles, including Advisory Board. U.S. Patent and president. She spends the rest of her She is currently a distinguished Trademark Office as an examining time ruining her teenager’s life. practitioner in residence at the attorney. She returned to Tulsa in OCU School of Law, where she 1995 to focus on her intellectual Nicholle teaches an experiential litigation property practice, serving twice as “Nikki” Jones practicum course. She has been president of the OBA’s Intellectual Edwards active in the Ruth Bader Ginsburg Property Section. A shareholder at Nicholle American Inn of Courts since 1998 McAfee & Taft, she has served as “Nikki” Jones and was mentoring co-chairperson the Intellectual Property Practice Edwards suc- from 2001-2005. She is also a Group leader and chair of the ceeds under member of the Oklahoma County Women’s Initiative. many titles: Bar Association, where she is a She developed the firm’s annual mother, law- leader in the areas of diversity, Off the Record event, which she yer, teacher, community service and ethics.

42 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL Sculptures to be presented to Mona Salyer Lambird Spotlight Award recipients. She was recognized by The professor in 2000 and Earl Sneed graduates. Her scholarly passions Journal Record as one of its 50 centennial professor of law in 2015. rest within the intersection of cul- Women Making a Difference and Having served in assorted admin- ture, property and its transfer. received their Leadership in Law istrative positions throughout her She earned a B.A. with hon- Award. She has also been honored OU Law tenure, she was named ors and a J.D. with highest by Martindale-Hubbell as a pre- interim dean and director of the honors from the University of eminent female lawyer. OU College of Law in June 2019. Arkansas, where she served as Ms. Guzman has received articles editor for the Arkansas Katheleen numerous teaching awards, Law Review and received the Guzman including the 2014 Medal of Outstanding Law Student Award Katheleen Excellence from the Oklahoma from the National Association of Guzman has Foundation for Excellence for Women Lawyers. After earning taught law stu- Research University Teaching an LL.M. from Yale Law School, dents and has and the 2008 Merrick Foundation she worked as a litigation asso- learned from Teaching Award from OU. The ciate with the Philadelphia law them since law school student body has also firm of Dilworth Paxson. She has joining the OU shared teaching and mentorship been a visiting professor of law at College of Law awards with her over the years, Villanova University and recently faculty as an associate professor including inviting her to partici- completed a three-year term on of law in 1993. She was named pate in convocation as one of three the Yale Law School Association MAPCO/Williams presidential professors chosen to hood the Executive Committee.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 43 Judge Sharon Judge Aletia Attorney’s Office. She began her Holmes Haynes legal career with General Motors Judge Timmons Legal Services. Sharon K. Judge Aletia She was admitted to prac- Holmes is a Timmons tice in the U.S. Circuit Court of 1977 graduate serves as a Appeals for the 10th Circuit and of Booker T. district judge the U.S. District Court for the Washington in Oklahoma Northern, Western and Eastern High School Count y, Districts of Oklahoma. She was in Tulsa. She District 7. She Gov. David Walters’s appointee received her bachelor’s degree graduated from John Marshall on the Committee on the Status from Loyola University in New High School in Oklahoma City, of Women. She also served as the Orleans and her J.D. from the OCU earned a B.S. in political science appointee of the chief justice of School of Law. She is a member of with a minor in history from OSU the Oklahoma Supreme Court Alpha Kappa Alpha Sorority Inc. in 1983 and obtained her J.D. from on the court’s Times Standards Before being elected to the the OU College of Law in 1986. Committee. Judge Timmons has bench, Judge Holmes was a crimi- Prior to election to the dis- also been an instructor at Langston nal defense attorney, and prior to trict judgeship in 2014, she was University’s Oklahoma City cam- that, she was an assistant district a solo practitioner at her own pus. She is a CLE speaker for the attorney for Tulsa County. In 2015, firm, Timmons & Associates. OBA’s continuing education pro- she took the bench after an election, Before that, she was in private grams, and she is also a co-founder/ which made her Tulsa County’s practice with the Abel, Musser, sponsor of Jamming Hoop Fest, first Black female district court Sokolosky, Mares & Kouri Law a summer basketball program judge. She was recently re-elected Firm, where she founded the designed to keep youth in northeast to her second term. She currently civil rights and employment law Oklahoma City out of trouble. presides over a criminal docket. litigation section. Previously, she Judge Holmes also proudly served in the Civil Division of served in the U.S. Air Force. the Oklahoma County District

44 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL Bar News Be Involved – Join a Committee!

BA COMMITTEE member- Committees are currently be burdensome but winds up Oship is good for you, good meeting remotely but will hope- being enjoyable and rewarding. for our organization and therefore fully have occasional in-person You owe it to yourself and your good for all! OBA committees meetings sometime in the future, profession. cover a wide range of subject allowing you to get to know your Sign up now! Go to www. matter and topics. fellow committee members even okbar.org/committees and click OBA committee membership better. Some committees are “Committee Sign Up.” We will helps you make new acquaintances devoted to service in the commu- be making appointments soon. and creates collegiality amongst nities where we live and practice, Thank you for your participation. its members. Involvement will which will enhance the image of help you become better known in our profession in your community. the legal community and develop I promise your participation referral and mentoring relation- will be a rewarding experience ships with attorneys across the and not a burden. You will give Michael C. “Mike” Mordy state. Working with other attor- less of your time than you might President-Elect neys on a committee will further think and gain far more than you promote pride in your profession contribute. Committee member- and remind you of what great ship is like great experiences in colleagues you have. life – you think participation will

To sign up or for more information, visit www.okbar.org/committees. „ Access to Justice „ Disaster Response and Relief „ Legislative Monitoring Works to increase public access to Responds to and prepares bar Monitors legislative actions and reports legal resources members to assist with disaster on bills of interest to bar members victims’ legal needs „ Awards „ Member Services Solicits nominations for and identifies „ Diversity Identifies and reviews member benefits selection of OBA Award recipients Identifies and fosters advances in „ diversity in the practice of law Military Assistance „ Bar Association Technology Facilitates programs to assist service Monitors bar center technology to „ Group Insurance members with legal needs ensure it meets each department’s Reviews group and other insurance „ needs proposals for sponsorship Professionalism Among other objectives, promotes and „ Bar Center Facilities „ Law Day fosters professionalism and civility of Provides direction to the executive Plans and coordinates all aspects of lawyers director regarding the bar center, Oklahoma’s Law Day celebration „ grounds and facilities Rules of Professional Conduct „ Law Schools Proposes amendments to the ORPC „ Bench and Bar Acts as liaison among law schools and „ Among other objectives, aims to foster the Supreme Court Solo and Small Firm Conference Planning good relations between the judiciary „ and all bar members Lawyers Helping Lawyers Plans and coordinates all aspects of Assistance Program the annual conference „ Civil Procedure & Evidence Code Facilitates programs to assist lawyers „ Studies and makes recommendations in need of mental health services Strategic Planning Develops, revises, refines and updates on matters relating to civil procedure or „ the law of evidence Legal Internship the OBA’s Long Range Plan and Liaisons with law schools and monitors related studies „ Communications and evaluates the legal internship „ Facilitates communication initiatives to program Women in Law serve media, public and bar members Fosters advancement and support of women in the practice of law

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 45 From the Executive Director ADR By John Morris Williams

HIS MONTH’S BAR JOURNAL The state of Oklahoma and the city search for solutions to our attention. Ttheme of alternative dispute of Oklahoma City have allocated President Shields and the OBA resolution makes for the use of CARES Act funds for housing, Board of Governors gave their an easily recognizable acronym. and many nonprofits across the instant support for the OBA to assist ADR can also stand for Always state have made funds available where it could in these endeavors. Do Right. In the current course of for housing assistance. Getting Chief Justice Gurich was invaluable events, these two concepts actually people and resources aligned is at with her support, and Phil Johnson can align very nicely. times a big undertaking, and by with the Early Settlement Program The OBA, as a partner with the utilizing the Oklahoma Supreme made things happen quickly Oklahoma Supreme Court Access Court Early Settlement Program, once the plan was hatched. Janet to Justice Commission, helped a great opportunity exists to find Johnson, our newly hired director launch the “Let’s Talk Housing” alternative resolutions to evictions of educational programs, rolled up project. The goal of the project is and foreclosures. Keeping people her sleeves to ensure the training to help landlords, tenants, home- in housing during a pandemic is was online, free of charge. And owners and lenders find alterna- especially important. I would be out of line not to give tive resolutions to evictions and With the support of Chief Justice credit to Katie Dilks, the executive foreclosures during the drastic Noma Gurich and Phil Johnson, director of the Oklahoma Access downturn in the economy brought who coordinates the Oklahoma to Justice Foundation for helping on by the COVID pandemic. In Supreme Court Early Settlement to spearhead the resolution passed Oklahoma, the accompanying Program, Oklahoma lawyers have by the Oklahoma Supreme Court collapse of oil and gas prices a great opportunity to do some- Access to Justice Commission. only compounded the problem. thing that is really right. Utilizing It always helps when you have Fortunately, for now, the evictions OBA CLE resources, the OBA in a host of people who always do are not as bad as first thought. The this partnership has created an right. Thanks to each of them. original stay of evictions con- opportunity to get early settlement Putting it as plain as I can, tained in the CARES Act has run mediation training online – which this is the right way to do right. its course, and there is an amount also results in 6.5 hours of free By utilizing ADR, we can be part of uncertainty with the executive CLE. The result for lawyers is they of Always Doing Right. ADR order that seeks to continue the have an opportunity to do some- helps to ADR! I want to encourage moratorium on evictions and thing that is of a great service and all OBA members to become part foreclosures. At some point, all the to obtain a mediation certification of this ADR opportunity to uplift stays and moratoriums are going to help expand into a new area of the legacy of the OBA’s commit- to end, and rent and mortgages practice. For complete details go to ment to ADR! will be required to be paid. www.okbar.org/lets-talk-housing- Research shows that persons program-addresses-covid-19- who face an eviction or foreclosure related-evictions. have a significantly greater chance I must compliment Oklahoma of having long-term housing issues. City Vice Mayor and OBA member Once an eviction or foreclosure goes Mark Stonecipher and Oklahoma To contact Executive Director to judgment, that record follows City Councilperson James Cooper Williams, email him at johnw@ a renter or homeowner forever. for bringing these issues and the okbar.org.

46 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL From the President

At the 2003 Women in Law Conference are (from left) President Melissa DeLacerda, Vice President Stephen Beam, U.S. Supreme Court Justice Ruth Bader Ginsburg, President-Elect Harry Wood and Past President Gary Clark.

(continued from page 4) decade, six out of 10 OBA presidents Awards were first given in 1996, have been women. and Mona was one of the inau- My legal career began at a time We must all remain gural year recipients, along with when gender issues were still four other distinguished honor- significantly different, however, conscious of the fact ees.1 She died in a tragic automo- so it has always been important bile accident overseas in 1999, and to me to pause and be grateful that we all are made I still recall the shock and sadness for those who made my path so of learning of her death. much easier. We must all remain better because of The renaming of the award conscious of the fact that we all are to honor Mona Salyer Lambird made better because of those who those who commit following her death is an indi- commit themselves to equal justice cation of her important role and under the law and work to ensure themselves to equal legacy in our legal community. there is a place at the table for In some fitting symmetry, Justice everyone. Let’s strive to continue justice under the law Ginsburg visited Oklahoma for that progress in the mentoring the September 2003 Women in and teaching of our next genera- and work to ensure Law Conference in Tulsa during tion of lawyers. the term of Melissa DeLacerda, As always, please do not hesi- there is a place at the who was the second female tate to contact me with your ques- president of the OBA. In the time tions, comments and suggestions table for everyone. period since Mona and Melissa at [email protected]. served as OBA presidents to now, there is no longer any novelty ENDNOTE about having a female bar associ- 1.The other 1996 inaugural honorees were Yvonne Kauger, Stephanie Seymour, Reta ation president. In fact, in the last Strubhar and Alma Wilson.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 47 Law Practice Tips Observations of Today's Law Firm Client Files By Jim Calloway

48 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL ACH CLIENT’S INFORMATION removed to file documents under The most obvious reason a Eis maintained by the law firm it – hence the need for construction digital client file is superior to in the client file. Lawyers do not paper. That concept could still be files held solely in traditional file frequently use the term data, but useful today as many lawyers who folders is a digital client file can it is data that is contained in the have converted to digital client files be securely backed up and the client file, and data from the client still have a “back up” paper client client’s information protected, file is used to deliver legal ser- file to take to court with them. while paper files can be destroyed vices to the client. Our tradition, But that’s not how we do it or lost. Fires and natural disas- however, involved “extracting” the today! Today we search. Today ters do happen, but they are rare. data by reading or scanning writ- we organize data. This brings me Hard drive crashes are also rare. ten documents and taking notes. to what some would consider a Malware attacks are a greater That will likely always be some- controversial statement that many danger. If this was the only reason thing lawyers do, reviewing docu- of my professional colleagues also digital client files are superior, ments to see what is important. consider obvious. Digital client files the weakness could be remedied But reading the documents you are superior to paper-based client by an appropriate data backup created to recall the date of the files. It is true today and will be regime. Digital client files also: accident or how many children truer going forward. This does not your client has is not an efficient mean that lawyers who are using „ Allow the lawyer to locate 21st-century process. And most paper-based files to represent their any document in the client lawyers don’t have to do it that way. clients are doing anything wrong file with a mouse click or two They may have a quick-reference concerning their client represen- „ Allow for more than one datasheet. It may be called Initial tation. The legal profession has person to work on a client Client Interview. Looking at that traditionally used paper-based file at a time was quicker than reading legal information management tools „ Allow for easier remote documents, but it could trip one up from client files to exhibits entered access if a mistake was made during the into evidence at court to legal trea- „ Provide for easier and interview that was fixed before the tises. For centuries, paper was the secure sharing of client document was executed. best way to organize information. information with the client In the pre-computer days, my or co-counsel law firm had a form printed on TODAY DIGITAL TOOLS ARE „ Allow lawyers to use construction paper we called File REPLACING PAPER-BASED specific data with auto- Opener with all of the client’s ONES mated document assembly contact information, the basics of Business operations run dig- functions the matter, a place to handwrite itally. When a business converts „ Result in never misplacing opposing counsel’s information its data to digital, it can be used the client file and places to jot down new dates if more effectively. And yes, the legal „ Make it much easier to matters were reset. The form stayed profession is lagging a bit in this quickly check the current on the top of one side of the file transition to digital compared to status of projects. for quick reference and was often many other types of businesses.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 49 During the 2020 shelter in place period, law firms immediately experienced the reality that digital client files were superior in the event several people from the law firm needed to have access to the client file, particularly if they were working from different physical locations.

During the 2020 shelter in for these tools that provide data second) is also a subscription place period, law firms immedi- storage, time and billing and client service. But many consider it a ately experienced the reality that portals are well worth the price. better value because they have (or digital client files were superior I have been making this pitch for will soon have) this subscription in the event several people from years now, and now many law already. the law firm needed to have firms use these tools. But many access to the client file, particu- still do not. It is a business choice. MICROSOFT 365 larly if they were working from (FORMERLY OFFICE 365) different physical locations. SECURE CLOUD-BASED A Microsoft 365 subscription For solo and small firm law- STORAGE IS A MUST is “must-have” software for the yers, the structure and sophisti- A lawyer or law firm may majority of law firms. Certainly, cation of a practice management decide to not utilize complete some lawyers use the G Suite software solution is of great value digital client files. But having alternative or other tools, but for managing and organizing dig- some method of secure, online Microsoft Outlook, Microsoft ital client files. But even larger law storage is an important tool and a Word and Microsoft PowerPoint firms should explore these tools if good insurance policy to protect are mainstays of modern busi- their “homegrown” solutions are against critical document loss, ness operations today. That is an not meeting their needs. Practice at least when a representation important reason why “Everything management tool Clio is a sponsor is concluded – even if you do a Law Firm Should Know About of the 2020 OBA Virtual Annual not enjoy the benefits of using a Microsoft 365” from Catherine Meeting. Discounts codes for digital file during the represen- Sanders Reach, director for the OBA members for Clio and other tation. While you may not have Center for Practice Management practice management solutions complete digital client files, it is a at the North Carolina Bar are available to new subscribers good insurance policy to scan and Association, is on the agenda for by logging into MyOKBar. upload a final decree or a last will the 2020 OBA Virtual Annual I frequently talk with law- and testament to a secure cloud Meeting. There is now an amaz- yers who have been planning to storage site. For Microsoft 365 ing number of tools, add-ons and make this move for some time subscribers, OneDrive is a safe customizations that are available but can’t find the time to do so. In and secure cloud storage option. at no extra charge as a part of your fact, I talked to one lawyer three If you have decided not to sub- Microsoft 365 suite. Decembers in a row before his scribe to a practice management Because Microsoft 365 is still law firm finally made the move. solution, the next best solution expanding and developing, you are The monthly subscription fees (and, sorry, but it is not a close going to have to first learn how to

50 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL operate the many tools it provides PDF file, combine multiple PDF and then customize them to per- files, extract pages and do simple form the law office functions you document editing. Every law office desire. And then you would still needs a resident PDF expert. most likely have to purchase a third- party time and billing application. BETTER DIGITAL Reviewing the already-existing CLIENT FILES, PRACTICE practice management tools and MANAGEMENT SOFTWARE subscribing to one still seems like AND IMPROVING YOUR the best idea for most lawyers, who SKILLS WITH PDF FILES will at best seek to become adequate This month my article is very Microsoft 365 users as opposed basic and short. It is time to start to Microsoft 365 gurus who built planning for 2021, which we all their own data management tools. agree really needs to be better than 2020. BEST PRACTICES WITH Investing the time perfecting, DIGITAL DOCUMENTS improving or establishing your Digital documents are also supe- digital client files is an improvement rior to paper documents in most that will keep on giving to your situations. Executed last will and firm in the future, as will improving testaments and certain affidavits how you use your practice manage- are two of the ever-shrinking list of ment software (or subscribing to a examples where paper documents service if you do not). are still “better” than digital due to It is not difficult to improve admissibility type of issues. Even your PDF editing skills. Watch a with those types of documents, the few videos and do some other self- wise lawyer will scan and save a study on using these editing tools. digital copy “just in case.” The next time you don’t know how I still receive PDF files that are to do something, use some inter- image-only PDF files and have not net searches to figure it out. It is been properly created with text much easier to learn when you are accessible in the file. For years, I not trying to accomplish some- used to gently reach out to a law thing under a deadline. firm or lawyers who sent me the file in that format as they might not appreciate what they are doing. Mr. Calloway is OBA Management Often it was just the default setting Assistance Program director. Need on the office scanner not set to a quick answer to a tech problem optical character recognition (OCR) or help solving a management when scanning. Now it happens so dilemma? Contact him at 405-416- rarely it is just simpler to open the 7008, 800-522-8060, jimc@okbar. document in Adobe Acrobat Pro org. It’s a free member benefit. DC and OCR it myself. Whether you are sending PDF files to clients or opposing coun- sel, they need to be searchable. We want to be able to highlight and copy text from the digital document. I believe most law offices use Adobe Acrobat DC Professional, but some use other tools. Whatever tool you use, you should be able to easily OCR a

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 51 Ethics & Professional Responsibility Change is Hard Not Changing is Even Harder By Richard Stevens

EGINNING NEXT YEAR, the Brules for MCLE will change. The new rule states, “Effective January 1, 2021, of the 12 required instructional hours of CLE each year, at least two hours must be for programming on Legal Ethics and Professionalism, legal malpractice prevention and/or mental health and substance use disorders.” The rule change increases the ethics requirement to two hours and expands the allowable subject matter to include professionalism, mental health and substance abuse disor- ders. The total number of MCLE hours required will not change.

WHY THE CHANGE? OBA members have inquired (CoLAP), National Organization practicing lawyers. That study about the reason for the change. of Bar Counsel (NOBC) and found “between 21 and 36 per- There seems to be a generalized Association of Professional cent qualify as problem drinkers, feeling that standards of profes- Responsibility Lawyers (APRL), and that approximately 28 per- sionalism have declined in recent a collection of entities within and cent, 19 percent, and 23 percent years. While subjective belief is hard outside the ABA. are struggling with some level of to support with data, the inclusion The task force recognized that depression, anxiety, and stress, of that subject is a reaction to that “[t]o be a good lawyer, one has respectively.” belief. The inclusion of mental health to be a healthy lawyer.” It also and substance abuse programming found that “[s]adly, our profession The report went on to say: is something more readily support- is falling short when it comes to able with empirical data. well-being.” The parade of difficulties also In 2017 the National Task Force Two studies were cited in includes suicide, social alien- on Lawyer Well-Being published a the task force report. One, the ation, work addiction, sleep report titled The Path to Lawyer Well- 2016 ABA CoLAP and Hazelden deprivation, job dissatisfaction, Being: Practical Recommendations for Betty Ford Foundation’s study of a ‘diversity crisis,’ complaints Positive Change. The task force was mental health and substance use of work-life conflict, incivil- initiated by the ABA Commission disorders among lawyers, was a ity, a narrowing of values so on Lawyer Assistance Programs study of nearly 13,000 currently that profit predominates, and

52 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL negative public perception. one-quarter (22 percent) reported HELP IS AVAILABLE Notably, the Study found that binge-drinking two or more times I have said and I believe almost younger lawyers in the first during that period. One-quarter every Oklahoma lawyer knows ten years of practice and those fell into the category of being at another lawyer who suffers from working in private firms risk for alcoholism for which fur- mental illness, substance abuse or experience the highest rates of ther screening was recommended.” excessive stress. We must help each problem drinking and depres- One recommendation to deal other for our own sake and for the sion. The budding impairment with these problems was for bar sake of the profession. One way of many of the future generation associations to encourage edu- to do that is through the Lawyers of lawyers should be alarming cation on well-being topics in Helping Lawyers Assistance to everyone. association with lawyer assistance Program. If you have become programs (in Oklahoma called impaired or you fear another The second study was a Survey the Lawyers Helping Lawyers lawyer has become impaired, and of Law Student Well-Being. More Assistance Program). For those you want to get confidential help, than 3,300 law students from 15 law reasons, the OBA decided to seek simply call the LHL helpline at 800- schools participated in the survey. Supreme Court approval for a 364-7886. You can also confiden- That study “found that 17 change in the MCLE rules. tially email [email protected]. percent experienced some level of There are many other recom- depression, 14 percent experienced mendations in the report, which is severe anxiety, 23 percent had available online at www.american- Mr. Stevens is OBA ethics counsel. mild or moderate anxiety, and six bar.org/content/dam/aba/images/ Have an ethics question? It’s a percent reported serious suicidal abanews/ThePathToLawyerWell member benefit, and all inquiries thoughts in the past year. As to BeingReportRevFINAL.pdf. I are confidential. Contact him at alcohol use, 43 percent reported encourage every Oklahoma lawyer [email protected] or 405-416- binge drinking at least once in to read it. 7055. Ethics information is also the prior two weeks and nearly online at www.okbar.org/ec.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 53 Board of Governors Actions Meeting Summary

The Oklahoma Bar Association Board REPORT OF THE graded one of the exam questions of Governors met at the Oklahoma EXECUTIVE DIRECTOR from the July bar exam. Governor Bar Center and remotely on Friday, Executive Director Williams Garrett reported she attended the August 28. reported he attended the staff OBA Audit Committee meeting. budget meeting, virtual Tulsa Governor Hermanson reported REPORT OF THE PRESIDENT County Bar Association annual he spoke at the Association of President Shields reported luncheon, virtual SCBP plenary and Oklahoma Narcotics Enforcers she attended virtual meetings of executive director meetings, virtual Conference and attended the the Southern Conference of Bar Audit Committee meeting, meeting District Attorneys Council meet- Presidents (SCBP), ABA House of with the hotel to discuss Annual ing, Oklahoma District Attorneys Delegates, National Conference Meeting, meeting with counsel on Association meeting and virtually of Bar Presidents (NCBP) and the the pending legal matter, meet- the Oklahoma Uninsured Vehicle Tulsa County Bar Association ings for Annual Meeting planning Enforcement Program meeting. annual meeting. She attended an and meetings with new directors. Governor Hutter reported he met OBA Annual Meeting meeting and He spoke at the virtual HOBY with the Oklahoma presiding judge worked on planning, including coor- Leadership Conference and worked to discuss COVID protocols and dination with the Lawyers Helping on the Let’s Talk Housing program. virtual appearances. Governor Lawyers Assistance Committee and Morton reported he moderated Diversity Committee, and worked REPORT OF THE and spoke at the OBA CLE defend- on the Let’s Talk Housing program PAST PRESIDENT ing the DUI-drug case seminar. in conjunction with Executive Past President Chesnut reported Governor Pringle reported he Director Williams. he attended virtual meetings of the attended the OBA Audit Committee ABA Annual Meeting, ABA House meeting. Governor Rochelle, REPORT OF THE of Delegates, Southern Conference unable to attend the meeting, VICE PRESIDENT of Bar Presidents and National reported via email he attended Vice President Nowakowski Conference of Bar Presidents. the Access to Justice Committee reported she attended the Annual meeting and Comanche County Meeting planning meeting, Oklahoma BOARD MEMBER REPORTS Bar Association meeting. Governor Bar Foundation meeting and OBA Governor Beese reported he Williams reported he chaired the Awards Committee meeting. attended the Audit Committee OBA Audit Committee meeting meeting. Governor Davis reported and attended the Tulsa County REPORT OF THE he presented a Title IX training Bar Foundation Board of Trustees PRESIDENT-ELECT to college and university admin- special meeting, Tulsa County President-Elect Mordy reported istrators on the new regulations Bar Association annual meeting he attended virtually a NCBP (85 F.R. 30026.) and authored a and Tulsa County Bar Foundation program on the status of officially bar journal article on alternative meeting. All were virtual. regulated state bars, a portion of dispute resolution in Title IX cases. the ABA House of Delegates meet- Governor DeClerck reported he REPORT OF THE YOUNG ing and the NCBP annual meeting. worked with the Garfield County LAWYERS DIVISION Bar Association president to plan Governor Haygood reported the possible Board of Governors he and other YLD board mem- meeting in Enid in October. bers participated in preparing bar Governor Edwards reported he exam survival kits and attended

54 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL the YLD board meeting, ABA APPLICATION TO STRIKE AUDIT COMMITTEE REPORT House of Delegates, ABA YLD FOR FAILURE TO REINSTATE AND 2019 AUDIT REPORT BY Assembly and ABA YLD Council AFTER SUSPENSION FOR SMITH CARNEY meeting. He announced the offi- NONPAYMENT OF 2019 DUES As Audit Committee chairper- cial postponement of the Kick It The board authorized Executive son, Governor Williams briefed Forward Tournament to April. Director Williams to file the members on the meeting held and application to strike for failure introduced auditor Chris Brumit. REPORT OF THE to reinstate after suspension for Mr. Brumit shared the audit team’s GENERAL COUNSEL nonpayment of 2019 dues. positive experience in the field col- General Counsel Hendryx lecting information and reviewed reported a written report of PRC APPLICATION TO STRIKE the report. He said they found no actions and OBA disciplinary mat- FOR FAILURE TO REINSTATE issues, and it is their opinion the ters for July was submitted to the AFTER SUSPENSION FOR report accurately represents the board for its review. NONCOMPLIANCE WITH 2018 financial condition of the organiza- MCLE REQUIREMENTS tion. The board approved the report. BOARD LIAISON REPORTS The board authorized Executive Governor Williams said the Director Williams to file the AWARDS COMMITTEE Diversity Committee circulated application to strike for failure RECOMMENDATIONS award nominations for voting to reinstate after suspension for Awards Committee Chairperson among committee members. noncompliance with 2018 MCLE Kara Smith reported no nominations Governor Garrett said the Women requirements. were received for the Law Day in Law Committee has cancelled its award, which was not surprising conference for this year. President since county bar associations had Shields reported recipients of the to cancel their events. She said Mona Salyer Lambird Spotlight Awards will be selected for 2020 and will be presented in some way.

APPLICATIONS TO SUSPEND AND STRIKE MEMBERS Executive Director Williams Executive Director Williams said action to suspend said action to suspend and strike members for noncompliance is and strike members for noncompliance is usually usually done in May, but because of the pandemic, action was delayed done in May, but because of the pandemic, action giving members more time. As a result, numbers were signifi- was delayed giving members more time. As a cantly lower. The board authorized Executive Director Williams to result, numbers were significantly lower. file the applications to suspend for failure to pay 2020 dues and to suspend for failure to comply with 2019 MCLE requirements.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 55 committee members thought 2020 ANNUAL MEETING SUSPENSION OF SECTION nominations were not strong President Shields said a meet- BYLAWS TO ACCOMMODATE enough for the Fern Holland ing was held with staff yesterday, VIRTUAL MEETINGS Courageous Lawyer Award and and the decision was made for the Executive Director Williams Trailblazer Award. She reviewed Annual Meeting to be virtual. Plans explained the sections have the committee’s nominations for are underway. Board members were bylaws requiring an in-person award recipients. The board voted asked to hold that information. A annual section meeting. It is his to approve the nominations. formal announcement is planned recommendation to suspend the for the second week of September. requirements of their bylaws COMMISSION ON CHILDREN Executive Director Williams said a to allow them to hold a virtual AND YOUTH meeting was held with the hotel, meeting this year. Action will be The board approved President- and there will be a small financial requested at the next meeting. Elect Mordy’s proposal to submit expense. The virtual meeting will the names of Javier Ramirez, take place Nov. 9-13. Governor NEXT MEETING Okmulgee; Brandi N. Nowakowski, Williams said the Tulsa County Bar The Board of Governors met in Shawnee; and Bradley James Association held its meeting virtually September and October. A sum- Wilson, Ardmore, to the governor and did a good job. New Strategic mary of those actions will be pub- for consideration and appointment Communications and Marketing lished in the Oklahoma Bar Journal of one person to the commission Director Dawn Shelton introduced once the minutes are approved. with a term to expire 12/31/2022. herself. President Shields said one The next board meeting will be of the first steps is to contact section Thursday, Nov. 5. chairs about planning their meetings. The strategy will be to prerecord pro- grams with all CLE going through the OBA utilizing inReach to facil- itate the reporting of MCLE credit.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill a vacancy for: District Judge, Seventh Judicial District, Office 9, Oklahoma County

To be appointed to the office of District Judge, Office 9, Seventh Judicial District, one must be a registered voter of Oklahoma County, Seventh Judicial District and a resident of Electoral Division One at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained online at www.oscn.net (click on “Programs”, then “Judicial Nominating Commission”, then “Application”) or by contacting Tammy Reaves at (405) 556-9300. Applications must be submitted to the Chairman of the JNC no later than 5:00 p.m., Friday, November 13, 2020. Applications may be mailed or delivered by third party commercial carrier. No hand delivery of applications is available at this time. If mailed, they must be postmarked on or before November 13, 2020 to be deemed timely. Applications should be mailed/delivered to: Jim Webb, Chairman Oklahoma Judicial Nominating Commission c/o Tammy Reaves Administrative Office of the Courts 2100 N. Lincoln Blvd., Suite 3 Oklahoma City, OK 73105

56 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL

Bar Foundation News Oklahoma Bar Foundation Announces Legal Services Funding for Nonprofits

HE OKLAHOMA BAR FOUNDATION (OBF) following categories: legal services and advocacy TBoard of Trustees approved $731,242 in grants for for abused and neglected children, juvenile offender 29 nonprofit programs that will provide legal services programs, civil legal aid for low-income Oklahomans, and education to over 46,500 Oklahomans. The OBF immigrant legal services, domestic violence prevention Grants & Awards Committee, tasked with reviewing services, teen legal education and diversion programs. grant applications and interviewing grant applicants, The following nonprofits will receive program presented funding recommendations to the OBF Board funding from the OBF for fiscal year 2021: of Trustees for programs that provide services in the

Grantee Program/Services Area of Service CASA of Canadian County Advocacy for Abused Children Canadian County CASA of Western Oklahoma Advocacy for Abused Children Beckham, Custer & Washita counties CASA of NE Oklahoma Advocacy for Abused Children Ottawa, Rogers & Washington counties CASA of Southern Oklahoma Advocacy for Abused Children Carter, Love & Murray counties Court Ordered Divorce & Co-Parenting Center for Children & Families Cleveland and Oklahoma counties Program Oklahoma Guardian Ad Litem Institute GAL Services for Low-Income Families Statewide Oklahoma Lawyers for Children Legal Services for Abused Children Oklahoma County Victim Legal Services & Forensic The Care Center Statewide Interviews Tulsa Lawyers for Children Legal Services for Abused Children Tulsa County Legal Aid Services of Oklahoma Civil Legal Services for Low-Income Statewide Oklahoma City University School of Law Indian Will Clinic Statewide Trinity Legal Clinic of Oklahoma Civil Legal Services for Low-Income Oklahoma City Area Domestic Violence Intervention Services DVIS Legal Program Tulsa & Creek counties (DVIS) Wings of Hope, Family Services Center Survivors Legal Support Logan, Noble & Payne counties Catholic Charities of Eastern Oklahoma Immigration Legal Services Eastern Oklahoma counties Catholic Charities of the Archdiocese Canadian, Cleveland & Oklahoma Immigration Legal Services of OKC counties The Spero Project The Common - Refugee Legal Services Oklahoma City Metro University of Tulsa Law School Immigrant Rights Project Statewide YWCA Tulsa Immigration Legal Services Tulsa Area

58 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL Grantee Program/Services Area of Service Oklahoma County Juvenile Bureau Court Ordered Literacy Program Oklahoma County Oklahoma County Juvenile Bureau Connect to Redirect Oklahoma County Teen Court First-Time Juvenile Offender Court Comanche County Youth Services of Tulsa First-Time Juvenile Offender Court Tulsa & Ottawa counties Western Plains Youth & Family Services Juvenile Detention Services Ellis, Harper & Woodward counties OBA-YLD Mock Trial High School Mock Trial Program Statewide YMCA of Greater OKC Youth & Government Program Statewide Oklahoma Access to Justice Foundation Legal Assistance Resource Center Statewide 1st Step Male Diversion Program Diversion & Mentorship Program Tulsa County Mental Health Association of Oklahoma Special Services Docket Tulsa County

2020 has been particularly tough for the nonprofit $1.1 million from 30 Oklahoma nonprofits. This means sector as many organizations experienced financial that despite awarding over $730,000 in OBF grants, hardship, operational challenges and a decrease in vol- close to $400,000 in requests WILL NOT be met due to unteers, while at the same time seeing a major increase lack of funding, and many Oklahomans who desper- in clients needing legal assistance. ately need help will not receive it. “This year, we heard from many of our grantees The OBF’s mission and priority is to provide as about how hard it has been to handle a dramatic much funding to our grantees as possible, so they increase in the need for services in an environment that can focus on providing high quality services for their suppresses fundraising events and personal outreach,” clients. To help close some of the funding gap, we have said OBF Grants & Awards Chair Valerie Couch. “They created some special campaigns and events. have been heroic in their efforts to persevere, and we So – a big THANK YOU to the OBF donors and the need to help them all we can. I hope all lawyers in OBA sections who donated to the OBF Grantee COVID Oklahoma will increase their support of the Oklahoma Legal Relief Campaign and the Giving Tuesday Now Bar Foundation so that we can provide timely help and Campaign. Together these campaigns raised an addi- funding for the people working in the trenches during tional $30,000 for OBF grantees. We also want to give a this pandemic.” shout out to our Prime Partner Banks who pay higher Each year, the OBF funds grantee programs provid- interest rates on their IOLTA accounts, which translates ing legal services and aid to low-income populations. into more funds for OBF grantees. Interest on Lawyer Trust Accounts (IOLTA) is the pri- There is still time to support the OBF and advance mary source of funding for OBF grantees, but unfortu- justice - visit www.okbarfoundation.org to learn more nately it is not enough to meet the overwhelming need. and make a donation! This year, the OBF received grant requests for over

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 59 Young Lawyers Division YLD Members Share Their Experiences Practicing During COVID By Jordan Haygood

S LAWYERS, WE ARE behind me. Smiles are covered 100% paperless. It’s made me pick Ataught to think on our feet by face masks and freely mov- up the phone more often so I can and adapt quickly to any issue pre- ing about the hospital, strolling at least have that human con- sented before us, and that’s what through the gift store and self-ser- nection, which to me has created young lawyers have definitely done vice cafeteria breakfast (trust me, better customer service than in with the impacts of COVID-19. it was the best) are things of the the past. I’m able to work more For me, this pandemic has past. All meetings and negotia- and longer hours without feeling brought a lot of positive things into tions are conducted on one of the confined to one office. Being in my life and has made me change countless tele-platforms. healthcare, the financial impacts of my perception of life and work. With all of that being said, this COVID have been an underlying My office is based in a hospital, pandemic has taught me how to theme in all my negotiations I con- and before the pandemic, the halls adapt. It’s allowed me to achieve duct on behalf of the hospitals. were full with patients, guests, my goal of taking my department For this article I thought it staff and clinicians roaming freely. from document heavy to almost would be a good chance to hear While we all were working hard, from some YLD members on how it was always nice to see another the pandemic has impacted their employee and smile – a smile to practices and the changes they let them know I see you and hope have had to implement. you are having a great day. I was Dylan Erwin, associate attorney able to give hugs to colleagues who at Holladay & Chilton PLLC who needed a pick-me-up or quickly practices business litigation, said, give high-fives in passing. My old “Law in the time of COVID, aside boss and mentor always engrained from sounding like a rejected in me to have an open-door policy, Gabriel García Márquez novel, has allowing anyone to walk in and forced me to change some aspects visit, letting them know you are Join us for the YLD meeting of my practice. My 50 days of work always there to help. on Thursday, Nov. 12, at from home quarantine made me But those days have changed, noon as part of the OBA realize how social practice can and now my new normal is work- Annual Meeting. It’s virtual, be. Whether it’s running into ing from home. On the few days so you can attend from colleagues at the courthouse or I’m in the office, I get to say hello anywhere. Election results grabbing a quick lunch down- to the frontline workers checking will be announced during town with erstwhile classmates, employees in and taking tempera- the meeting and shared we attorneys are social creatures. tures, but after that it’s straight on our Facebook page. On the positive side, it has shown to my office and close the door me that technology is an absolute

60 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL asset for modern lawyers. I can their kids, their pets and what is allowed everyone to take some still meet with clients, attend hear- going on in their homes has been time to center ourselves and to ings and participate in mediations refreshing. Lawyers have become focus on how we can better help via videoconference and, thanks very dependent on paper records our clients. I urge each and every to secure cloud-based platforms, I and working from home has made one of you to take some time to realized being at the office didn’t us comfortable working from reflect on your time during this mean I had to be in the office.” different media platforms and pandemic and to find positive Alia Ramirez is senior attorney moving to electronic forms of doc- changes that will continue to and manager of Legal Service for umentation and communication. shape the future of the law and GlobalHealth. Her practice focuses Which goes to show, we can truly our law practices. on health care and compliance. work from anywhere. As devas- She said, “My company has tran- tating as the pandemic has been, sitioned all personnel to remote my department has gotten to take Mr. Haygood practices in work. This has allowed me to get on issues we have never had to Oklahoma City and serves as to know my customers better. contemplate. A pandemic means the YLD chairperson. He may be Getting to see people through we have had to find ways to pivot contacted at jordan.haygood@ their own homes, I have gotten to to take care of our customers – ssmhealth.com. Keep up with the know a little bit more who they overall, we have had to think YLD at www.facebook.com/obayld. are versus who they presented to quickly on our feet, and it brings be in the corporate office. It has a lot of excitement to my role.“ allowed me to get to know them Despite all the challenges we on a more personal level – seeing have faced with COVID, it has

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 61 Bench and Bar Briefs

ON THE MOVE

F. Thomas Cordell has joined the judge from 2010 until 2019, when Jacob Black, Robert Clougherty, Oklahoma City office of Wilson he was elected associate district Evan Crumpley, Thomas Goresen, Cain & Acquaviva as of counsel. judge for the county. While serv- Courtney Keeling, Haley Maynard, He practices in the areas of tort ing on the bench, he has overseen and Elke Meeùs have joined and insurance litigation, focusing traffic, wildlife, criminal mis- the Oklahoma City law firm of on personal injury, premises liabil- demeanor and criminal felony, McAfee & Taft as associates. Mr. ity, products liability, auto liability, probate, guardianship, adoption Black practices in the areas of construction defect, oil and gas and general family law cases. He business and commercial transac- litigation, bad faith and insurance received his J.D. from the OCU tions as well as complex business defense and coverage litigation. School of Law in 1991. litigation. Mr. Clougherty practices Mr. Cordell received his J.D. from in the areas of business and com- the University of Idaho College of Tamara Pullin has joined the mercial transactions. Mr. Crumpley Law in 1979. Ft. Worth, Texas, law firm of practices in the areas of corporate McDonald Sanders PC as an associ- and business matters. Mr. Goresen Blake Gerow and Jonathan ate. Ms. Pullin practices in the area practices in the areas of environ- Rogers have joined the Tulsa and of employment law, focusing on mental litigation and regulatory Oklahoma City offices of Hall matters concerning banking regu- compliance with state and federal Estill. Mr. Gerow joins the firm latory compliance, especially with environmental health and safety as an associate, practicing in the respect to fair lending and UDAPP regulations. Ms. Keeling prac- areas of energy and litigation law. compliance, as well as laws and tices in the areas of corporate and He received his J.D. with highest regulations pertaining to deposits, business matters. Ms. Maynard honors from the TU College of Law. lending and loss mitigation. practices in the area of business Mr. Rogers will be a member of the transactions. Ms. Meeùs practices firm’s litigation team. He received Arianna Cole, Ryan Curry and in the area of complex business his J.D. from the OU College of Law. Tanner Frye have joined the and commercial lawsuits. Tulsa office of GableGotwals as Reagan E. Bradford and Ryan K. associates. Brennan Barger has Natalie M. Jester and Laurie L. Wilson have established the law joined the firm’s Oklahoma City Schweinle have joined the firm of Bradford & Wilson PLLC, office as an associate. Ms. Cole Oklahoma City law firm of located in Oklahoma City at 431 practices primarily in the areas of Phillips Murrah as associate W. Main St., Ste. D. The firm will labor and employment law, bank- attorneys for the firm’s Litigation focus on civil litigation, including ruptcy, tax, health care, family law Practice Group. Ms. Jester and Ms. class action litigation, commercial and corporate transactions. Mr. Schweinle will represent individ- litigation and oil and gas litiga- Curry’s experience includes legal uals and privately held and public tion. Mr. Bradford received his research and drafting research companies in a wide range of civil J.D. from the OU College of Law memos on topics including IRS litigation matters. in 2008. Mr. Wilson received his revenue procedures, easement J.D. from the OU College of Law disputes and insurance appraiser Nathan L. Cook, Whitney N. in 2017. The firm can be reached competency standards. Mr. Frye Humphrey, Elizabeth V. Salomone at 405-698-2770. practices primarily in the areas of and Anna M. Sanger have general corporate and health care joined the Oklahoma City office Judge Stuart Lee Tate was transactions. Mr. Barger practices of Doerner, Saunders, Daniel & appointed by Gov. Stitt to serve as in litigation matters, including Anderson LLP as associates. Mr. district judge for Osage County, research involving civil procedure, Cook will be a member of the District 10. Judge Tate previously public nuisance, groundwater law firm’s Litigation and Transactional served Osage County as special and employment law. Practice Groups. Ms. Humphrey

62 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL KUDOS practices in the areas of corporate over 17 years, representing clients Stephen Bonner, a longtime asso- and business transactional mat- in business, contract, tort and class ciate district judge, was presented ters and business litigation. Ms. action litigation as well as handling with a decree upon his retirement Salomone practices in the areas numerous criminal appeals and that named the Cleveland County of general and corporate litigation. habeas matters. She received her J.D. drug court program the “Stephen Ms. Sanger practices in the area of with highest distinction from the W. Bonner First Choice Recovery civil litigation. OU College of Law. for Children and Families.” He established the family drug court Lorena Rivas, Mary McMillen Judge Nathaniel Hales was program in 2008 to help families and Sara Schmook have estab- selected to serve as special judge reunite and receive treatment for lished The Lawyers of Kendall following the retirement of Judge addiction. The program has since Whittier. The firm, located in Steven Stice. He was sworn in helped over 570 people. Retired Tulsa at 2417 E. Admiral Blvd., Oct. 9. Judge Hales was an assistant Judge Bonner was appointed focuses on immigration, crimi- district attorney for District 21, associate district judge of the 21st nal and family law issues. Elissa including Cleveland, McClain and District and sworn in on Nov. 7, Stiles and Elijah Johnson have Garvin counties and oversaw crim- 2003. He was named 2011 Judge joined Ms. Rivas’ team at Rivas & inal, juvenile and civil dockets. He of the Year by Court Appointed Associates as immigration attor- has served as the Anna McBride Special Advocates for Children, neys. The firm can be reached at Mental Health Court assistant and he received the Mary Abbott 918-505-4870. district attorney and as an associ- Children’s House’s Wayne Martin ate to the Norman CrimeStoppers Memorial Award in 2017 for his Christine Little has been selected group. He received his J.D. from outstanding work for children. by the U.S. District Court for the the OU College of Law in 2013. Northern District of Oklahoma to serve as a U.S. magistrate judge for Eric Di Giacomo has joined the district. Her appointment, effec- the Tulsa law firm of Atkinson, tive Nov. 1, fills a vacancy created by Haskins, Nellis, Brittingham, the retirement of Magistrate Judge Gladd & Fiasco as an associate. Mr. Frank H. McCarthy. For the past Di Giacomo practices primarily in eight years, Judge Little has served the area of civil litigation with an as the career law clerk for Chief emphasis in research. He received Judge John Dowdell. Previously, his J.D. with highest honors from she was a private practitioner for the TU College of Law in 2020.

HOW TO PLACE AN you. Sections, committees, and county Submit news items to: ANNOUNCEMENT: bar associations are encouraged to The Oklahoma Bar Journal welcomes submit short stories about upcoming or Lauren Rimmer short articles or news items about OBA recent activities. Honors bestowed by Communications Dept. members and upcoming meetings. If other publications (e.g., Super Lawyers, Oklahoma Bar Association you are an OBA member and you’ve Best Lawyers, etc.) will not be accepted 405-416-7018 moved, become a partner, hired an as announcements. (Oklahoma-based [email protected] associate, taken on a partner, received publications are the exception.) a promotion or an award, or given Information selected for publication Articles for the January issue must be a talk or speech with statewide or is printed at no cost, subject to editing received by Dec. 1. national stature, we’d like to hear from and printed as space permits.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 63 In Memoriam

alerie Lynn Baker of Yukon was a member of the Metropolitan to the American Law Institute and Vdied Sept. 29. She was born Tulsa Transit Authority Board for was a member of the Downtown June 21, 1970, in Gallipolis, Ohio. many years and served as president Oklahoma Rotary Club, Mineral Ms. Baker received her J.D. from of the Oklahoma Council of the Lawyers Society of Oklahoma the OCU School of Law in 1997. Blind. Memorial contributions may City, National Groundwater be made to the Oklahoma Council Management Districts Association udge Rebecca A. Cryer of of the Blind or Jeri’s House Inc. and several bar associations. JNorman died Sept. 29. She was Memorial contributions may be born Oct. 9, 1946, in Shawnee. obert A. Forbes Jr. of made to Bishop McGuinness She received her J.D. from the OU ROklahoma City died Aug. 23. Catholic High School, OCU or OU. College of Law in 1976. Early in He was born May 23, 1948, in her legal career, she served as staff Columbia, Missouri. Mr. Forbes rvan Jerome Hanson Jr. of attorney for Legal Aid of Western was an All-City selection in OMesa, Arizona, died July 15. Oklahoma, assistant district attor- football his senior year of high He was born Aug. 12, 1941, in Sioux ney for Cleveland and McClain school and received a scholarship City, Iowa. Upon graduating from counties and enforcement attorney from the University of Missouri to Augustina College, Mr. Hanson for the Oklahoma Department play football. After receiving his taught school and coached for of Securities. While working at bachelor’s degree in elementary seven years in Missouri and Iowa. the Journal Record Building, she education, he taught 8th grade at He received his J.D. from the TU suffered serious injuries during an inner-city St. Louis school. He College of Law in 1972. He prac- the Alfred P. Murrah bombing. Her received his J.D. from the OCU ticed law in Kansas City, Missouri, name is inscribed on the Survivor School of Law in 1975. Upon Sioux City and Tulsa before being Wall at the Oklahoma City graduation, he practiced law in appointed associate district judge National Museum and Memorial. Oklahoma City and Midwest City. for Buffalo in 1985. He held that Most recently, Judge Cryer served position until 1991 when he was as magistrate and appellate magis- llen K. Harris Jr. of appointed associate district judge trate for the Southern Plains Region AOklahoma City died Sept. 4. for Miami. He then worked as a of the Court of Indian Affairs He was born Aug. 24, 1941, in private practitioner in Miami until and district judge of the Choctaw Amarillo, Texas. A graduate of his retirement in 2006. Mr. Hanson Nation District Court. She was a Bishop McGuinness Catholic was a member of the Masonic member of the Citizen Potawatomi High School, he attended George Lodge and Lions Club as well as Nation of Shawnee. Memorial con- Washington University before the Oklahoma, Missouri and Iowa tributions may be made to ASPCA, receiving his J.D. from the OCU bar associations. Catholic Charities USA or the char- School of Law in 1970. Throughout ity of your choice. his legal career, Mr. Harris served erri Inman of Tulsa died as an oil and gas title examiner GSept. 26. She was born April 3, oseph Fallin of Tulsa died and oil and gas conservation attor- 1957, in Tulsa. After earning her JApril 19. He was born Nov. 11, ney, counsel for the Oklahoma bachelor’s degree in accounting 1946, in Tulsa. After graduating State Senate LP Investigating and working as a CPA, she received from the Oklahoma School for Committee, special counsel to Gov. her J.D. with honors from the TU the Blind, Mr. Fallin received his David Boren for Federal Energy College of Law in 1995. Ms. Inman bachelor’s degree from OSU and Regulatory Commission Litigation practiced in the area of business his J.D. from the OU College of and as the first Oklahoma Utility law, with a focus on employment Law in 1972. He practiced law for Ratepayer Consumer Advocate and contract law, and received the over 40 years and was a champion before the Federal Energy nickname “Red-Headed Bulldog” for disability rights. In 2005, he Regulatory and the Oklahoma for her cross-examination skills. was named Advocate of the Year Corporation Commission. He She served as executive director of by the Oklahoma Department of also served as OBA Legal Ethics the South Tulsa Community House Rehabilitation Services. Mr. Fallin Committee chairman, was elected from 2013 until 2017, when she

64 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL became a consultant, COO and then courts, served as a mediator and harles Scott Woodson of CEO for The Tulsa Hub Syndicate. was inducted to the College of CSand Springs died Sept. 23. Throughout her legal career, she Workers’ Compensation Lawyers He was born Aug. 23, 1929, in Ft. was involved with several pro bono in 2014 in recognition of his exten- Smith, Arkansas. He attended the programs, including the OBA and sive advocacy of workers’ com- Oklahoma Military Academy and OETA Public Television. pensation in Oklahoma. Memorial Poteau High School. After grad- contributions may be made to the uating from OU, he received his illiam Earl Sparks of Tulsa John 3:16 Mission, the EQUUS J.D. from the TU College of Law Wdied Aug. 26. He was born Foundation or DEW Pug Rescue. in 1957. He worked as a private Aug. 10, 1956, and was raised in practitioner until being appointed Seminole. Mr. Sparks earned a onald J. Sullivan of Poteau district judge. Judge Woodson bachelor’s degree from OCU in Ddied Sept. 2. He was born served on the bench for 29 years criminal justice and corrections July 29, 1944. Mr. Sullivan served before retiring in 1999. He was and received his J.D. from the TU in Vietnam in the U.S. Army. a member of the First United College of Law in 1982. In 2017, After receiving his J.D. from the Methodist Church of Drumright, he received his LL.M. from the TU College of Law in 1972, he the Rotary Club and the Elks Pepperdine University Rick J. practiced law for many years Lodge. Memorial contributions Caruso School of Law. Mr. Sparks’ and was a member of the LeFlore may be made to the Alzheimer’s passion for the law spanned County Bar Association and Association or the Dean McGee over 35 years. He was a litigator American Bar Association. Eye Institute. in numerous state and federal

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 65 2020 ISSUES DECEMBER Wellness Editor: Melissa DeLacerda [email protected] Deadline: Aug. 1, 2020

2021 ISSUES

JANUARY AUGUST Meet Your Bar Tax Law Association Editor: Tony Morales Editor: Carol Manning [email protected] Deadline: May 1, 2021 FEBRUARY Marijuana and the Law SEPTEMBER Editor: Virginia Henson Bar Convention [email protected] Editor: Carol Manning Deadline: Oct. 1, 2020 OCTOBER MARCH DUI Probate Editor: Aaron Bundy Editor: Patricia Flanagan [email protected] patriciaaflanaganlaw Deadline: May 1, 2021 [email protected] Deadline: Oct. 1, 2020 NOVEMBER Elder Law APRIL Editor: Luke Adams Law Day [email protected] Editor: Carol Manning Deadline: Aug. 1, 2021

MAY DECEMBER Personal Injury Labor & Employment Editor: Cassandra Coats Editor: Roy Tucker cassandracoats@leecoats. RTucker@muskogeeonline.

EDITORIAL CALENDAR EDITORIAL com org Deadline: Jan. 1, 2021 Deadline: Aug. 1, 2021

If you would like to write an article on these topics, contact the editor.

66 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL 2020 EMPLOYMENT LAW SEMINAR

When: Friday December 4, 2020 from 9:00 a.m. to 4:30 p.m. (Lunch included)

Where: Crabtown in Bricktown, 303 E. Sheridan Ave., Oklahoma City, OK 73104 (Seminar will also be livestreamed)

CLE: 8 hours proposed (including at least 1 hour of ethics)

Tuition: $180.00 (registration by Nov. 12); $200 after Nov. 12 (E-Materials provided) ($50.00 discount for OELA members & gov/public service attorneys)

Registration: Online at www.OELA.org

PROGRAM

COVID-19: The Pandemic’s Impact Philip R. Bruce, on ADA/FMLA Claims, The Families McAfee & Taft First Coronavirus Response Act (FFCRA) & Employer’s Best Practices

But-For Causation: Justice Gorsuch Mark E. Hammons, Reinforces the But-For Standard’s Hammons, Hurst & Low(ish) Standard Associates

Tips from the Bench: Practical Tips Honorable Susan for Ethical Litigation Stallings, Oklahoma County District Judge

Bostic v. Clayton Cty.: Employers’ Best Michael C. Redman, Practices for Preventing Discrimination Interim Legal Director, Against LGBTQ Employees ACLU of Oklahoma

Trial from Both Sides of the Aisle: Barrett Bowers, Tips from Experienced Trial Attorneys Barrett T. Bowers, PLLC; Victor F. Albert, Sam R. Fulkerson & Kim Tran, Ogletree Deakins; Geoffrey Tabor, Ward Glass

ESI Update: Tips & Techniques for Gavin W. Manes, Data Preservation & E-Discovery Avansic E-Discovery & Digital Forensics

*Contact for Questions: Amber Ashby ([email protected]) Classified Ads

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68 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL OFFICE SPACE POSITIONS AVAILABLE

60 YEAR LAW PRACTICE IN YUKON. One paralegal WATKINS TAX RESOLUTION AND ACCOUNTING retired in May and the other wants to work part-time as FIRM is hiring attorneys for its Oklahoma City and does this lawyer. Looking for attorney that wants his or Tulsa offices. The firm is a growing, fast-paced setting her own law practice. Office has six rooms and storage; with a focus on client service in federal and state tax library/conference room; two bathrooms and file room. help (e.g. offers in compromise, penalty abatement, Good client base/business. Financial arrangements innocent spouse relief). Previous tax experience is not negotiable. Fenton Ramey (405) 650-9885. required, but previous work in customer service is pre- ferred. Competitive salary, health insurance and 401K PRIME COMMERCIAL SPACE FOR LEASE IN MID- available. Please send a one-page resume with one-page TOWN TULSA, 31st & Harvard. Ideal for an attorney cover letter to [email protected]. or law firm that desires easy access to Broken Arrow expressway and front door parking. Newport Square THE OKLAHOMA BAR ASSOCIATION HEROES pro- Shopping Center has 1 suite available with 1,173 sf. Suite gram is looking for several volunteer attorneys. The need is already built out with high-quality finishes. Signage for FAMILY LAW ATTORNEYS is critical, but attorneys available on building awning as well as double sided from all practice areas are needed. All ages, all counties. pylon street sign. Competitive rental rates. Make this Gain invaluable experience, or mentor a young attorney, charming, unique, red brick, classy property your new while helping someone in need. For more information or professional home! Call Newport Square, LLC, for more to sign up, contact 405-416-7086 or [email protected]. information. (918) 921-4695. NORMAN BASED FIRM IS SEEKING A SHARP AND OFFICE AVAILABLE IN OKC. Senior AV-Rated Attorney MOTIVATED ATTORNEY to handle HR-related mat- moved to upscale building on MW Expressway with ters. Attorney will be tasked with handling all aspects beautiful city-wide view and has large office available of HR-related items. Experience in HR is required. Firm with all amenities for a lawyer. Furnishings available. offers health/dental insurance, paid personal/vacation $575 monthly. 405-858-0055. days, 401(k) matching program and a flexible work schedule. Members of our firm enjoy an energetic and OKC OFFICE SPACE FOR LEASE. Near downtown (5 team-oriented environment. Position location can be minutes or less to all three courthouses). Furnished. Two for any of our Norman, OKC or Tulsa offices. Submit conference rooms. Full kitchen. Room for receptionist and resumes to [email protected]. file storage. Security System. Cleaning service bi-weekly. Price negotiable. Please call (405) 413-1646 if interested. NORMAN BASED LAW FIRM IS SEEKING SHARP, MOTIVATED ATTORNEYS for fast-paced transactional TWO EXECUTIVE OFFICES IN MIDTOWN (OKC). work. Members of our growing firm enjoy a team atmo- Receptionist provided. Each office from $900 - $1,750 / sphere and an energetic environment. Attorneys will be month depending on sq. ft. Contact Larry Spears or Jo part of a creative process in solving tax cases, handle an at 405-235-5605. assigned caseload and will be assisted by an experienced support staff. Our firm offers health insurance benefits, paid vacation, paid personal days and a 401K matching LARGE EXECUTIVE OFFICE IN OKC, 325 SF, program. No tax experience necessary. Position location Huddleston Law Office, 2200 Shadowlake Dr., 73159. can be for any of our Norman, OKC, or Tulsa offices. Near SW 104th on Penn. Offers receptionist, large Submit resumes to [email protected]. conference room with full kitchen, high speed internet, utilities, security system, janitorial service, copier with fax. $750 month or $850 furnished. No deposit. Contact Terrie Huddleston 405-209-0640.

THE OKLAHOMA BAR JOURNAL NOVEMBER 2020 | 69 POSITIONS AVAILABLE POSITIONS AVAILABLE

SOUTH OKLAHOMA CITY LAW FIRM has opening SEEKING EXPERIENCED PROSECUTOR TO for attorney with Workers’ Compensation experience WORK IN OSAGE AND PAWNEE COUNTIES. and attorney with Social Security experience. Please Must have at least two years’ experience prose- send replies to Box CP, Oklahoma Bar Association, P. O. cuting felonies in the Oklahoma D.A. system. Box 53036, Oklahoma City, OK 73152. Minimum salary of $62,000 along with full State benefits. Please send resume and writing sample to Sharie Yates at [email protected]. LAWYER 1-5 YEARS, self-starter, and excellent writing and legal research skills. Great opportunity to gain liti- gation experience in high profile cases with an empha- sis in entertainment litigation. Salary commensurate BALL MORSE LOWE is accepting applications for an with experience. Please send confidential resume, ref- Associate Attorney to join the Litigation Practice Group erences and writing sample to: [email protected]. in our downtown Oklahoma City office. Qualified can- didates will have 1 to 3 years of civil litigation experi- ence (experience with business transactional matters is CAIN LAW OFFICE is seeking to hire an attorney with a plus). Health, vision, dental insurance and 401K match 2 – 5 years of experience. Prior experience in personal available. Pay commensurate with experience. Please injury litigation, excellent research and writing skills send resume, references, law school transcript and writ- preferred. The firm offers competitive compensation ing sample to [email protected]. and bonuses commensurate with experience and excel- lent benefits including 401K. Interested applicants send resume to [email protected].

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill a vacancy for: District Judge for Oklahoma County, Seventh Judicial District, Office 13 This vacancy is created by the appointment of the Honorable Trevor Pemberton to the Court of Civil Appeals on September 1, 2020. Office 13 is an at-large position. To be appointed to the office of District Judge for Oklahoma County, Office 13, one must be a legal resident and registered voter of Oklahoma County, Seventh Judicial District at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years’ experience in Oklahoma as a licensed practicing attorney, a judge of a court of record, or both. Application forms can be obtained online at www.oscn.net (click on “Programs”, then “Judicial Nominating Commission”, then “Application”) or by contacting Tammy Reaves at (405) 556-9300. Applications must be submitted to the Chairman of the JNC no later than 5:00 p.m., Friday, November 13, 2020. Applications may be mailed or delivered by third party commercial carrier. No hand delivery of applications is available at this time. If mailed, they must be postmarked on or before November 13, 2020 to be deemed timely. Applications should be mailed/delivered to:

Jim Webb, Chairman Oklahoma Judicial Nominating Commission c/o Tammy Reaves Administrative Office of the Courts 2100 N. Lincoln Blvd., Suite 3 Oklahoma City, OK 73105

70 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL

The Back Page Memories of RBG By Kay Bridger-Riley

FIRST MET JUSTICE Ruth the D.C. Circuit Court of Appeals IBader Ginsburg before she was (about a year later, as I remem- a judge. I had served as vice pres- ber). Many years later, when the ident of the ABA’s Law Student OBA finally created the Women Division during my third year of in Law Committee (we were the law school. During my second year, last state to create one) during the a case came down in California, 1997 presidency of Willie Baker, I which for the first time found was appointed to chair it. In that reverse discrimination. A white capacity, I invited Ruth (who was man named Bakke was contesting by then on the Supreme Court) to the quota system used to admit come to Tulsa and be our speaker Oklahoma Supreme Court members with medical students at the University for a weekend conference. I never U.S. Supreme Court Justice Ginsburg at of California – the Bakke case. This will forget the fact her initial the 1997 conference. From left are Justice threw many people into a tailspin, response was that if she could Joseph Watt, Justice Robert Simms, and the ABA appointed a group to come, she would, but I should Chief Justice Yvonne Kauger, Justice Ruth look into the issue called the Post- know Marty (her husband) Bader Ginsburg, Vice Chief Justice Hardy Summers and Justice Alma Wilson. Bakke Task Force. always traveled with her. I was a minority on that task The weekend conference was a me to serve on the ABA’s Center force in two ways – race and gen- huge success. During that event, I for Human Rights, I was again der. I shared that distinction with was able to introduce my children serving on the Executive Board (a one other person – Ruth Bader and my mother to Justice Ginsburg. group of 11) with Justice Ginsburg Ginsburg. We were among all the Later that year, my youngest daugh- along with Jerry Shestack, Father icons of male, Black civil rights ter, Shannon (in the third or fourth Robert F. Drinan and other icons attorneys. It was an amazing expe- grade), had a project in her school in the area of international human rience. RBG served on that task class in which they had to pick a rights. We met in her chambers at force until she was appointed to character from the government in the Supreme Court in D.C. on one D.C. to play. She decided to play occasion. The thing I remember the role of Justice Ginsburg. After most was that Justice Ginsburg that project, I suggested she write was always so very measured in Justice Ginsburg and tell her about her comments and although soft it. She did, and sure enough, Justice spoken, when she spoke, everyone Ginsburg wrote her back. I then listened. Even among the giants of got a call from RBG, asking me the the profession, it seemed as though name of Shannon’s teacher. I gave it her few quiet words held more to her, and a few days later we got weight than anyone in the room. a letter to her teacher from Justice Ginsburg thanking her for teaching civics to the children. We framed it After 40 years of civil rights and From left, Justice Ginsburg poses for a and gave it to Shannon’s teacher as business litigation in Tulsa, Ms. photo with Kay Bridger-Riley, Deborah Bridger-Riley retired from her Bruce and Linda Martin. Ms. Bridger- a Christmas present. Her teacher Riley and Ms. Martin co-chaired the was, needless to say, thrilled. practice and became a sorority conference held Aug. 27 & 28, 1997, at Then when my longtime ABA house director last year in Missouri the Marriott Southern Hills Hotel in Tulsa. friend, Karen Mathis, appointed and currently at AXO in Norman.

72 | NOVEMBER 2020 THE OKLAHOMA BAR JOURNAL THURSDAY & FRIDAY, texas credit DECEMBER 3 & 4, 2020 approved 10 a.m. - 2:50 p.m. 35TH ANNUAL ADVANCED Only BANKRUPTCY SEMINAR DAY ONE: Update Regarding Subchapter V, the Small Business Reorganization Act Mark A. Craige, Crowe & Dunlevy, Tulsa The Dark Side of Business Bankruptcy: Practice Pointers for Restructuring Professionals Salene Mazur Kraemer, Bernstein-Burkley, P.C. MCLE 4/0 DAY ONE Survey of Recent Oil and Gas Industry Developments Chuck Carroll, FTI Consulting, Inc., Dallas, TX MCLE 4/1 DAY TWO Survey of Recent Oil and Gas Bankruptcy Litigation in Oklahoma, Texas and Colorado Eric M. Van Horn, Spencer Fran LLP, Dallas, TX

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