The American Bar Association Section of Dispute Resolution Presents

The Sixth Annual Conference Resolution and Resilience in New York

April 15-17, 2004 New York City

Sheraton NY Hotel & Towers 811 Seventh Avenue (Between 53rd and 52nd Streets) New York, NY (800) 325-3535, (212) 581-1000 www.starwood.com/sheraton Reduced Hotel and Airline Rates Available CLE Credits Available

HIGHLIGHTS • The 15th Annual Frank E.A. Sander Lecture: Reconciliation and Reparations featuring Alexander Boraine, Ambassador Stuart Eizenstat and Professor Ziyad Motala • A stellar Plenary on Maintaining a Healthy Corporate Body, moderated by ABA President-Elect Robert Grey and featuring Enron Bankruptcy Examiner R. Neal Batson, Microsoft Mediator Eric Green, Tyco Executive Vice President William B. Lytton and Professor Lynn Stout • Skills Training by leading practitioners on the latest innovations in DR practice • Over 120 Presentations covering the diverse world of dispute resolution, organized into practice and interest specific tracks • Presentation of the D’Alemberte/Raven Award to Ambassador Richard Holbrooke • The Forum on Expanding Opportunities for Minorities and Women in Dispute Resolution • The Court ADR Mini-Conference for neutrals, judges, program administrators and more • Innovative teaching techniques at the Legal Educators’ Colloquium • An energized Special Focus on Family ADR

1 Conference at a Glance

Wednesday, April 14 1:00 pm – 5:00 pm Representation in Mediation Competition 4:00 pm – 6:00 pm Registration for Pre-Conference Events (Skills Training, Mini-Conference on Court ADR, Forum for Minorities and Women) 3:00 pm – 6:00 pm Section Council Meeting

Thursday, April 15 7:00 am – 10:00 amRegistration for Pre-Conference Events ONLY 10:00 am – 5:00 pm Conference Registration 8:00 am – 2:30 pm Mini-Conference on Court ADR (Limited ticket event, see page 7) 8:00 am – 4:00 pm Representation in Mediation Competition 8:30 am – 10:15 am Pre–Conference Skills Training Sessions (Limited ticket event, see pages 4, 5) 10:30 am – 12:00 noon Pre–Conference Skills Training Sessions (Limited ticket event) 9:00 am – 2:30 pm Forum on Expanding Opportunities for Minorities and Women in Dispute Resolution (Limited ticket event, see page 6) 1:00 pm – 2:30 pm Committee Meetings / Networking Sessions (See page 8) 2:45 pm – 4:15 pm Concurrent Sessions - Series A (See page 9) 4:30 pm – 6:30 pm Opening Plenary – Frank E.A. Sander Lecture Speakers: Alexander Boraine, Ambassador Stuart Eizenstat, Professor Ziyad Motala 6:30 pm – 8:00 pm Welcome Reception Honoring Faculty and Exhibitors Sponsored by JAMS, National Arbitration Forum, PricewaterhouseCoopers LLP

Friday, April 16 7:30 am – 8:30 am Section Committee Meetings 7:30 am – 8:30 am Gentle Yoga – An Opportunity for Guided Practice 8:00 am – 12:00 noon Representation in Mediation Competition and Finals 8:00 am – 4:00 pm Registration 8:30 am – 10:00 am Plenary – Maintaining a Healthy Corporate Body 10:15 am – 11:45 am Concurrent Sessions - Series B (See page 13) 12 noon – 1:45 pm Luncheon – Keynote Speaker: Ambassador Richard Holbrooke Former Assistant Secretary of State for European and Canadian Affairs The Presentation of the D’Alemberte/Raven Award Sponsored by Gibson, Dunn & Crutcher LLP, American Arbitration Association, Martindale-Hubbell

2:00 pm – 3:30 pm Concurrent Sessions - Series C (See page 16) 3:45 pm – 5:15 pm Concurrent Sessions - Series D (See page 20) 5:30 pm – 6:30 pm Section Committee Meetings 7:00 pm – Enjoy New York (See page 34)

Saturday, April 17 7:30 am – 8:45 am Section Committee Meetings 8:00 am – 1:00 pm Registration 9:00 am – 10:30 am Concurrent Sessions - Series E (See page 24) Legal Educators’ Colloquium (See page 32) 10:45 am – 12:15 pm Concurrent Sessions - Series F (See page 27) Legal Educators’ Colloquium 12:30 pm – 2:00 pm Legal Educators’ Colloquium Luncheon (Limited ticket event, see page 32) 2:00 pm – 3:00 pm Section Committee Meetings

2 Plenary Sessions

Thursday, April 15 4:30 pm – 6:30 pm The 15th Annual Frank E.A. Sander Lecture: Reconciliation and Reparations (a two-part session) Plenary Planning Co-Chair, Melanie Greenberg of Washington, D. C. will moderate this presentation. In Part I Former Deputy Secretary of U.S. Treasury Stuart Eizenstat will discuss efforts to achieve justice for Holocaust victims and families. In Part II Alexander Boraine of New York City, Founder and President of the International Center for Transitional Justice and former Deputy Chair of the South African Truth Commission appointed by Nelson Mandela will discuss the Commission. He will engage in a dialogue on the efficacy of Truth Commissions and Transitional Justice with Ambassador Eizenstat and human rights advocate Professor Ziyad Motala of Howard University School of Law and a native of South Africa.

Friday, April 16 8:30 am – 10:00 am Maintaining a Healthy Corporate Body: A Dialogue on Major Corporate Disputes of the Last Decade ABA President-Elect Robert Grey will moderate a distinguished Panel that will address some of the highest profile business disputes of the last decade. The Panel will include Neal Batson, Examiner for the Enron bankruptcy; Eric Green, the mediator in the Microsoft antitrust cases; William B. Lytton, Tyco Executive Vice President; and Professor Lynn Stout of the UCLA School of Law. Discussions will cover lessons in corporate governance for management, counsel and accountants, and the role of the neutral dispute resolution professional as examiner, mediator, and independent investigator. We will explore the connection between the fields of Dispute Resolution and Corporate Governance. For instance, could a post Enron corporate health examination facilitated by a dispute resolution professional help restore trust and a balanced view for the long-term health of the corporation?

Conference Executive Committee Section Chair Richard Chernick Conference Chair John Bickerman Program Committee Chairs John Lande, Lela Love Fundraising Barry Garfinkel, Larry Keeshan New York Advisors Elayne Greenberg, Scott Carfello SkillsTraining Program Margaret Shaw, Deborah Masucci Networking Sessions Jeffrey Senger Plenary Sessions Melanie Greenberg, Hal Abramson Legal Educators’ Colloquium Andrea Schneider, John Lande, Suzanne Schmitz Scott Peppet, Michael Moffit, Maureen Weston Local Activities Alida Camp Court ADR Mini-Conference Amy Bressler Nee, Ellen M. Miller Representation in Mediation Competition Ann Woodley, Paula Young Law Student Essay Competition Nancy Welsh Coordinator of Volunteers Gene Johnson Opportunities for Minorities and Women Homer La Rue, Marvin Johnson, Danielle Hargrove, Jack Hanna

Program Planning Track Chairs Arbitration Sarah Rudolph Cole, Paul Dubow, June Lehrman Community & Peer Mediation Timothy Hedeen, Gene Johnson, Maria Volpe Communication Bobbi McAdoo, Amy Glass Construction ADR Jim Groton, Ken Bloom, Dottie Terrell Corporate/Business Peter Phillips, Don Rome Court-Connected ADR Amy Bressler Nee, Ellen M. Miller, Daniel M. Weitz Employment & Labor ADR Jay W. Waks, Sara Adler Ethics Jay Folberg Family Paul D. Pearson, Andrew Schepard, Adam Berner Environment Heather Sibbison, David Batson Government John B. Stephens, Leah Meltzer, Charles Pou Intellectual Property & Technology Tim Cole International Betty Southard Murphy, Lawrence Graves Practice Development & Management John Phillips Miscellaneous Jack Hanna, Gina Viola Brown, John Bickerman

3 Pre-Conference Skills Training Thursday, April 15 8:30 am to 10:15 am

1. Advanced Negotiation Skills* L. Randolph Lowry, Malibu, CA The presenter will address the “Intuition of Mediators,” examining the intuitive responses the very best mediators seem to make even though they themselves are often unable to explain such responses. This pragmatic workshop will address how, when and why some mediators are driven by something beyond the training they receive.

2. Mediating the Case with Companies in Bankruptcy Hon. Cecelia Morris, Poughkeepsie, NY; Hon. Elizabeth Stong, Brooklyn NY; Marc Abrams, New York, NY The bankruptcy courts have embraced mediation to handle a wide variety of cases. The faculty will identify the kinds of terms, values and alternatives that distinguish mediation in this context, and work with participants to adapt their practices to the bankruptcy arena.

3. Mediating Employment Disputes* Margaret Shaw, New York, NY; Homer La Rue, Washington, DC Mediation is now part of every employment litigators’ toolbox. How have their expectations of mediation changed and how does the employment mediator adapt to and work with these changes? For example, are parties attempting more frequently to spin the mediator or do parties mislead the other side on their reason to mediate? How should mediators respond to these and other challenges?

4. Strategies for Growing Your ADR Practice Forrest “Woody” Mosten, Los Angeles, CA; Richard Chernick, Los Angeles, CA Are there differences between how you develop an arbitration and a mediation practice? What techniques are most successful, what are the best ways to implement them and how do you measure success?

5. Public Policy and Environmental ADR* Peter Adler, Keystone, CO; Howard Bellman, Madison, WI The presenters will tackle the current issues that are faced in Government Public Policy cases and in particular environmental cases that involve multiple parties including public interest groups and the government. These cases impact the public at large for years to come. The faculty will describe techniques to approach sophisticated parties who have learned to utilize mediation to their benefit and are pushing the envelope.

6. Advanced Skills for Resolving International Cases* Murray Smith, Vancouver, Canada Ann Ryan Robertson, Houston, TX Arbitration is the most accepted form of ADR in International cases. Parties are increasingly seeking special processes offered by arbitrators to overcome jurisdictional and enforcement problems. The faculty will use scenarios to delve into complicated issues facing international arbitrators and challenges for mediators in the international arena.

7. Helping Parties Resolve Complex Financial Issues Rufus Rhoades, Pasadena, CA Paul Bent, Pasadena, CA This session will give you some methods to assist the parties in unraveling financial Gordian knots that almost invariably slow the resolution process down. We will discuss such subjects as resolving conflicting valuations, addressing conflicting financial reports, looking at the parties' attempts to take different tax positions.

4 10:30 am to 12:00 noon

8. Making Decisions in Mediation: The New New Grid System Len Riskin, Columbia, MO In the mid-1990’s, Leonard Riskin introduced the “grid” of mediator orientations, based on the facilitative-evaluative role-of–the-mediator continuum and the narrow-broad problem-definition continuum. He has recently reconsidered that grid and proposed –in the Notre Dame Law Review – the “New, New Grid System,” which allows us to focus on a wide range of decisions (substantive, procedural and meta-procedural) and the influence that each participant (rather than just the mediator) exerts, or could exert, on such decisions. In this workshop, participants will learn the new system and use it to understand real and simulated mediations and improve their own practices.

9. Using the Non-Caucus Model in the Commercial Context Jack Himmelstein, New York, NY The non-caucus model for mediation is widely used in family mediation and is utilized increasingly in the employment context. Is this technique transferable to commercial cases? Participants will experience the challenges and rewards of the non-caucus model in this context.

10. International Mediation Karl Mackie, London, England; Eileen Carroll, London, England International mediation is increasingly common in today’s global environment. What special challenges does this create for mediators and mediation practice? The presenters will outline typical international scenarios from real life, and invite participants to consider how they might best be managed. The workshop will follow a structured approach focusing on the classic stages of a mediation model – initiation, appointment, preparation; opening and exploration; negotiation and concluding; follow-up and enforcement.

11. Business Disputes - Impasse Breaking Techniques for the Business Mediator* Linda Singer, Washington, DC; Michael Lewis, Washington, DC; Dwight Golann, Boston, MA What can mediators do to move the parties towards efficient settlements? Using cases from their own practices, the presenters will help the participants to experiment with mediator strategies designed to assist business parties to overcome the most common barriers to settling intractable commercial disputes.

12. Ethics Carrie Menkel-Meadow, Washington, DC This session will explore advanced ethical scenarios for neutrals in a variety of contexts; for example, are there any guidelines for neutrals who serve as both arbitrators and mediators and does such a mixed practice prevent them from accepting assignments? When does the mediation end and how can the mediator resolve post settlement disputes regarding the terms of the agreement? Beyond the ethics of more conventional mediators and arbitrators, this session will also focus on some ethics issues for the facilitator of multi-party or “convened” processes in both public and private disputes (consensus-building, class actions, environmental disputes, reg-neg and public policy disputes).

13. Advanced Skills for the Domestic (non-international) Arbitrator* Robert Davidson, New York, NY This session will explore critical skills of the arbitrator to manage and control the arbitration hearing even in the face of disruptive parties and to ensure party satisfaction, including satisfaction of the losing side. The techniques discussed also will explore the increasing judicial scrutiny of arbitration decisions and how the arbitrator can ensure that court intervention is minimal.

* Denotes “master class”

5 Forum on Expanding Opportunities for Minorities and Women in Dispute Resolution Thursday, April 15 9:00 am – 2:30 pm This series of workshops is intended to expand the participation and involvement of minorities and women in the dispute resolution profession. The goal of this forum is to identify specific ways to address the problem of under- representation of minorities and women in our field and to feature practice development skills. 9:00 am - 10:30 am How Government Agencies Recruit and Assign Neutrals Angelia Tolbert, Little Rock, Arkansas, Moderator; Jeff Knishkowy, Director, USDA Conflict Prevention & Resolution Center, Washington, DC; Peggy McNeive, Acting Director, FMCS Access to Neutrals Initiative, Kansas City, MO; Leah Meltzer, United States Securities and Exchange Commission, Washington, DC

What Large Corporations Look For in Mediators/Arbitrators Linda Obayashi, Baltimore, MD, Moderator; Wilbur Hicks, Ombuds and Director, Dispute Resolution Program, Shell International, Houston, TX; Kevin Clunis, Employment Litigation Counsel, American Airlines, Fort Worth, TX; Deborah Masucci, Director of Dispute Resolution, American International Group Inc., Brooklyn, NY

10:45 am - 12:15 pm Sessions Repeated How Government Agencies Recruit and Assign Neutrals Steve Gonzales, Los Angeles, CA, Moderator; Faculty from the earlier session

What Large Corporations Look For in Mediators/Arbitrators Dan Naranjo, San Antonio, TX, Moderator; Faculty from the earlier session

12:30 pm - 1:30 pm Luncheon Greetings by ABA President-Elect Robert Grey, Jr., Richmond, VA, and Hon. Juanita Bing Newton, New York, NY

1:30 pm - 2:30 pm Diversity Committee Networking Session Danielle Hargrove, San Antonio, TX, Moderator

Planning Chairs: Danielle Hargrove, San Antonio, TX; Homer La Rue, Washington, DC Marvin Johnson, Silver Spring, MD; Jack Hanna, Washington, DC

Cooperating Organizations for the Forum for Minorities and Women: American Arbitration Association, CPR Institute for Dispute Resolution, JAMS, Mediators of Color Alliance Metropolitan Black Bar Association, National Arbitration Forum, National Native American Bar Association National Hispanic Bar Association Greater Washington Area Chapter, Women Lawyers Division National Bar Association

ABA Cosponsor: Commission on Racial and Ethnic Diversity in the Profession

6 Mini-Conference on Court ADR

BEYOND IMPLEMENTATION EXAMINING OUR ASSUMPTIONS AND FINE-TUNING OUR PROGRAMS

Thursday, April 15, 2004

8:00 am – 9:00 am Opening Breakfast Plenary

The Balance Between Process and Resolution, or Have We Tipped the Scales Too Far? Judge Nan R. Shuker, Senior Judge, Superior Court of the District of Columbia, Washington, DC Joseph B. Stulberg, Professor of Law, The Ohio State University, College of Law, Columbus, OH Lela P. Love, Professor, Benjamin Cardozo School of Law, New York, NY – Moderator

9:10 am -10:35 am Concurrent Sessions

The Successful Institutionalization of ADR: Hastening Justice or Just Undermining the Role of the Courts? Bobbi McAdoo, Professor and DRI Senior Fellow, Dispute Resolution Institute, Hamline University School of Law, St. Paul, MN Nancy Welsh, Assistant Professor of Law, Dickinson School of Law, Carlisle, PA

Serving Self-Represented Litigants: Program Design Approaches to Addressing Issues of Access and Justice Lois Bloom, Magistrate Judge, United States District Court for the Eastern District of New York, Brooklyn, NY Gail Davis, Coordinator of Dispute Resolution, Civil Court of the City of New York – Housing Part, New York, NY Jacqueline M. Nolan-Haley, Professor, Fordham University Law School, New York, NY – Moderator Andrew Thomas, Executive Director, Center for Dispute Settlement, Rochester, NY

Keeping Our Balance: Challenges for Established Programs — Part 1, Maintaining a Panel of Neutrals Miriam R. Arfin, Director of ADR Programs, U.S. District Court, Northern District of California, San Francisco, CA Ann D. Marshall, ADR Administrator/Settlement Staff Attorney, U.S. District Court, Western District of OK, Oklahoma City, OK David E. Michael, Director, Multi-Door Dispute Resolution Division, District of Columbia Superior Court, Washington, DC Hal I. Abramson, Professor of Law, Touro Law Center, Huntington, NY

10:45 am - 12:05 pm Concurrent Sessions

Promoting Quality in Court-Connected Mediation: The Next Wave Daniel M. Weitz, State ADR Coordinator, New York State Unified Court System, New York, NY Sharon Press, Director, Dispute Resolution Center, Tallahassee, FL Rachel Wohl, Executive Director, Maryland Alternative Dispute Resolution Commission, Towson, MD

Judges as Mediators Judge Nan R. Shuker, Senior Judge, Superior Court of the District of Columbia, Washington, DC Judge Harold Baer, Jr., U.S. District Court for the Southern District of New York, New York, NY James J. Alfini, President and Dean, South Texas College of Law, Houston, TX Amy Rothstein, Doar Rieck & Mack, New York, NY

Keeping It Fresh: Challenges for Established Programs– Part 2, Improving Outreach and Introducing Innovation Same Facilitators as for Part 1

12:10 pm - 1:20 pm Networking Lunch

1:30 pm - 2:30 pm Court Committee Networking Session

Mini-Conference on Court ADR Planning Committee: Ellen M. Miller, San Diego, CA; Amy Bressler Nee, Boston, MA; Gerald Lepp, New York, NY Hon. Robert M. Levy, Brooklyn NY; Jacqueline Nolan-Haley, New York, NY; Amy Rothstein, New York, NY Andrew Thomas, Rochester, NY; Daniel M. Weitz, New York, NY; David Michael, Washington, DC; Susan Yates, Chicago, IL

7 Networking Sessions

Thursday, April 15 1:00 pm - 2:30 pm

These Networking Sessions encourage broad and open dialogue by all attendees. They will allow individuals interested in a particular area of dispute resolution to meet with colleagues with similar interests in an informal setting. Experienced facilitators will lead a discussion of the most pressing and critical issues with an emphasis on comments and contributions from the attendees. Some sessions will be devoted to specific topics within the subject area. The purpose of the sessions is to provide an opportunity for dynamic participant interaction. There is no charge for these sessions. The six Networking Sessions and the facilitators for each are:

Session Facilitators ADR for All Professions Rita Callahan, Atlanta, GA Corporate ADR Kevin Kreb, Chicago, IL Court Annexed ADR* Ellen M. Miller, San Diego, CA; Amy Bressler Nee, Boston, MA Diversity* Danielle Hargrove, San Antonio, TX Ombuds John Barkat, Briarcliff Manor, NY Rethinking Federal Employee Dispute Handling Leah Meltzer, Washington, DC

* These sessions will occur during luncheons associated with pre-conference events. See pages 6 and 7.

Section of Dispute Resolution Meetings

Wednesday, April 14 3:00 pm – 6:00 pm Section Council Meeting

Thursday, April 15 1:00 pm - 2:30 pm Committee Meetings ADR Advocacy in Litigation Practice Entertainment ADR Community Based and Peer Mediation Pro Bono Intellectual Property & Online Dispute Resolution Research and Statistics Task Force

Friday, April 16 7:30 am - 8:30 am Committee Meetings Arbitration ADR and Tax Matters ADR and the Construction Industry

Friday, April 16 5:30 pm - 6:30 pm Committee Meetings Education Training Environmental and Nautral Resources ADR

Saturday, April 17 7:30 am – 8:45 am Committee Meetings Mediation International Resolution of Public Disputes

Saturday, April 17 2:00 pm - 3:00 pm Committee Meetings Lawyer as Problem Solver

8 Concurrent A: Thursday, April 15 2:45 pm – 4:15 pm

A1. Arbitral Power: Too Much, Too Little, Just Right?

Richard Chernick, Los Angeles, CA Bruce E. Meyerson, Phoenix, AZ Sarah Rudolph Cole, Columbus, OH Steven E. Bizar, Philadelphia, PA

The United States Supreme Court and the lower federal courts have expanded greatly the role and authority of arbitrators. That trend continued in the recent Bazzle decision. Have the courts gone too far in deferring to arbitral authority? This program will explore the growing power of arbitrators, and its implications for our justice system.

A2. Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Mediation Process

Daniel Bowling, Washington, DC David Hoffman, Boston, MA Peter Adler, Keystone, CO Dana Curtis, Sausalito, CA Marvin Johnson, Silver Spring, MD William Hartgering, Evanston, IL

It is essential for a practitioner to learn both mediation skills and theory. But there is also another dimension to being a dispute resolver – a more personal dimension. The contributing authors of a new book, Bringing Peace into the Room, believe that to master the art of mediation, one must begin to develop the personal qualities of a peacemaker, and, to that end, they urge mediators to become reflective practitioners focused on the life-long development of skills, theory, and the personal qualities of peacemaking.

A3. Community Mediation and the Bar: Beneficial Partnerships between the Court, the Bar and a Community Mediation Center

Elayne Greenberg, Great Neck, NY Mark Kleiman, Jamaica, NY Catherine Friedman, New York, NY

A panel of experts will discuss the interface between the Courts, the Bar and Community Mediation. They will describe how these centers can be effectively utilized by attorneys to benefit both practice and clients. They will discuss various community mediation programs that have ongoing relationships with the Criminal, Family and Civil Courts of New York City. Descriptions of programs associated with each court are presented from the perspective of: Director of ADR programs for the New York City Family Courts, an attorney with many years of Family Law experience and the Director Community Mediation Services, Inc., an agency that runs a community mediation center in Queens County. Among the programs at community mediation centers under discussion will be: Criminal: Community Mediation (neighborhood disputes, landlord-tenant, etc.); Youth Violence Intervention, Victim/Offender Mediation and Batterers Intervention Program. Family: Divorce and Custody-Visitation Mediation, Parent Education and Custody Effectiveness Program (PEACE), Parent-Teen mediation. Civil: Small Claims Mediation Program, facilitations of a co-op board, inter-ethnic or other large group conflicts, Americans with Disabilities Act conflicts, Special Education Hearings and Lemon Law cases.

Each area is presented from the viewpoint of the Center, the Courts, the Clients and the Bar. Case examples from each court will describe how cases are referred and the manner in which attorneys can use mediation to help make them more successful and their client’s effectively served. Each panelist will elicit examples from the audience of times when clients could have utilized or were involved in mediation or other alternatives to court. We will discuss the positive potential of community mediation centers in providing assistance to clients as well as the considerations attorneys may have in referring and sanctioning such participation.

A4. Construction Project ADR: Resolutions in Real Time

Robert C. McCue, Berwyn, PA Joyce K. Hackenbrach, Philadelphia, PA E. Mitchell Swann, Berwyn, PA Stuart A. Law, Jr., Princeton, NJ

This program will focus on the utilization of ADR methods and practices during the life of a construction project. Traditionally, ADR, primarily arbitration, has been a dispute forum for claims made by the contractual parties after a project is completed. Our session will focus on how ADR works - in concept and in practice - during actual project time. By using ADR to resolve on-going disputes during the project, the project keeps moving to completion. This type of ADR eliminates prolonged and expensive disputes for the parties involved.

9 A5. Advanced Neutrals’ Roundtable: Experienced Arbitrators and Mediators Discuss Complex Issues in Business Dispute Resolution

Gerald Aksen, New York, NY William H. Webster, Washington, DC Margaret Shaw, New York, NY Michael Lewis, Washington, DC Thomas Stipanowich, New York, NY

The panelists, neutrals of international reputation, will share their insights and experience in dealing with some of the most challenging topics they have faced. Advanced techniques learned through hard-won experience are shared and exchanged in this highly interactive session.

A6. Getting It Started with Interest-Based Mediation: Addressing Resistance and Responding to Participant/Attorney Interests- FERC Hydro Re-licensing

Joseph McMahon, Denver, CO Steven A. Shapiro, Washington, DC Cherie Shanteau, Tucson, AZ

This program is an interactive program where, using a hypothetical case, participants will work with the facilitators in answering important questions about how to start interest based processes. The program facilitators begin with the assumption that the greatest challenge to using interest-based processes is getting them started. Once started, we then work, as parties and neutral, to maintain the direction.

Therefore, how can we (either as counsel or neutrals) best invite others to participate? What can be said or done to respond to the resistance to interest based processes? How and to whom? What can be done to avoid sliding back into the positional “settlement culture?”

The program is targeted towards both ADR neutrals and advocates. In addition to the above, the program also seeks to address the following aspects of interest based mediation processes:

How can interest based approaches be used to give full understanding and value to each party’s legal positions? How can we clarify each participant’s best role in the process? How can we work to avoid the “settlement culture”? What steps can be taken to improve communications? What is the “understanding model” of mediation? What are we seeking to understand? What is the role of law in interest based processes?

A7. Why Employers Decline to Mediate at the EEOC

E. Patrick McDermott, Annapolis, MD Walter Wright, San Marcos, TX Hassan Tajalli, San Marcos, TX Ruth Obar, Salisbury, MD Anita Jose, Frederick, MD Kevin McCarthy, Portage, MI

The panel, pursuant to a research contract with the Equal Employment Opportunity Commission, conducted a comprehensive survey of employers who have declined to accept the EEOC’s offer to mediate a charge of discrimination made against their organization. This program will provide the results of this research. Some of the issues covered in this program include:

Why do employers decline the offer to mediate? How can a mediation program provider improve its mediation acceptance rate? What amount of information does an employer possess at the point where they decline to mediate? Why do some EEOC offices have significantly higher acceptance rates than others?

A8. Dispute Resolution & Decision Making: Judges, Neutrals, and Parties

Gregory Todd Jones, Atlanta, GA David F. Sally, Ithaca, NY Chris Guthrie, Nashville, TN

Dispute resolution is about decision making. Because decision outcomes for conflicting parties depend, at least to some extent, on the decisions of other parties to the conflict, as well as a multitude of external circumstances and third party decision making, these decisions are always made under conditions of uncertainty or risk. Dispute resolution is about guiding this decision making in such a manner as to mitigate this risk to the greatest extent possible. In this session, leading multi-disciplinary researchers at the intersection of dispute resolution and decision making will offer practical insights into how a better understanding of decision making – judicial decision making, neutral decision making, and party decision making – can improve the efficacy of advocacy, both in the courtroom and outside of the courtroom at the negotiation table.

10 A9. Whistle While You Work: The Neutral as Whistleblower?

Steven C. Salch, Houston, TX Maxine Aaronson, Dallas, TX Jerry P. Roscoe, Washington, DC Charles M. Carberry, New York, NY Kathryn Keneally, New York, NY Jay Folberg, San Francisco, CA

A party discloses a federal financial crime during a mediation. What should the mediator do? How do you reconcile ethical and confidentiality obligations with federal regulations and criminal statues? How do you respond to that grand jury subpoena addressed to you as neutral? Just how "confidential" is the process? Are the rules different for mediators who are government employees or lawyers? This panel of experienced neutrals, ethics experts and white collar criminal defense counsel will discuss these and other knotty questions and provide practical advice on how to keep the negotiation going while keeping yourself out of hot water. Special attention will be given to the impact on the mediation community of the change in the ABA Model Ruels and the recently issued SEC rules under Sarbanes-Oxley

A10. If We Build It Will They Come? An Exploration of the Politics of Creating and Implementing a National Mediator Credentialing Program

Josefina M. Rendon, Houston, TX Leila Taaffe, Atlanta, GA Robert M. Jones, Tallahassee, FL Peter R. Maida, Washington, DC

This session is offered by the Chair of the ABA Section of Dispute Resolution Task Force on Mediator Credentialing, a Task Force that will have completed its second year of work by the time of the 2004 conference.

The scope and depth of mediation practice has grown dramatically over the last twenty years. The number of individuals who call themselves mediators or who call what they do mediation is not measured, but is believed by the Task Force to be perhaps in the tens of thousands. The numbers of programs that provide mediation services is estimated by the Task Force to be in the thousands. Court mediation or ADR programs, federal and state agency mediation programs, national programs that are run privately or supported by a federal government agency, community mediation centers, university mediation programs, and even internet mediation programs prepare mediators, refer cases to them, or provide mediators for agency-related disputes. None of these is regulated by a state license. Only a handful are regulated by a certification limited to the program. And yet, mediators want credentials, as evidenced by the number of mediators who use what we call a substitute credential, showing on their resumes the number of rosters they are listed on, or the types of cases they have experience in. Mediator credentialing has returned to the national agenda of two major mediator membership organizations, and to the current agendas of many statewide mediator membership organizations or non-membership coalitions. The Association for Conflict Resolution has been exploring a national certification program. The Section of Dispute Resolution Task Force has been exploring national or statewide accreditation of mediator preparation programs.

The question for both organizations, and for state mediator membership organizations, is “If we build it will they come?” Will federal and state court mediation programs shift from their current mediator requirements to a national or statewide credential? Will federal or state agency programs adopt a national or statewide credentialing requirement for their mediators? Will mediators submit themselves to a credentialing process? Will mediator preparation programs submit themselves to an accreditation system? What is the most effective way to build a national or statewide mediator credentialing program? In this session, moderated by Peter R. Maida, a nationally recognized leader in the field, panelists with expertise in mediation programs and individual practice will discuss the critical issues related to implementation of a national or statewide mediator credentialing program.

A11. A National Consensus Council: Boon to Policy Development or Too Good to be True?

John B. Stephens, Chapel Hill, NC Larry Susskind, Cambridge, MA Phillip J. Harter, Columbia, MO Peter L. Strauss, New York, NY

Legislation to establish the United States Consensus Council has moved forward over 2002-03. A task force of political and legal leaders guides the effort, and several prominent dispute resolution practitioners are formal advisers. Is everyone “on board” for this institutionalization of dispute resolution on public policy issues? Does a formal, national consensus-building body enhance or detract from the U.S. Congress’ role to represent, compromise and problem-solve on national issues?

This session offers support and criticism of the idea for the United States Consensus Council with attention to separation of powers issues, changing the culture of Washington politics, and dispute resolution professionals seeking, and honoring, perspectives that challenge their interests.

A12. Negotiating at the Front Lines: Resolving Disputes in War Zones

Joseph McDade, Washington,DC Paula McCarron, Washington, DC Charles J. Dunlap, Washington, DC 11 While the public is watching on CNN and the bombs are falling in war zones, a great deal of interest-based negotiation is occurring behind the scenes. This session will demonstrate in graphic fashion how U. S. armed forces particularly The United States Air Force consider negotiation a number one tool in times of war. Why, because during a military deployment it is critical to think creatively to solve problems. General Dunlap, Major McCarron and Mr. McDade will detail the importance and process of negotiations with civilians in deployed settings such as Iraq; between military leaders of different countries; across cultures, including military cultures; and negotiations with nongovernmental organizations.

A13. HOT TOPICS ON ADR IN SOUTH AMERICAN COUNTRIES- FOCUS ON ARGENTINA, BRAZIL AND COLOMBIA. ISSUES AND TRENDS

Christian Acuna, Bogota, Colombia Nelida Basabe, Buenos Aires, Argentina Maria Rosa Cattaneo, Buenos Aires, Argentina Julia Roig, Miami, FL Adolfo Braga Neto, Brazil

Presenters will explain all the hot topics, recent news and developments on ADR - basically mediation and arbitration - that are taking place in Latin American countries - focusing on Argentina, Brazil and Colombia. Different programs that have been organized to develop a culture of arbitration and mediation in these South American countries will be explained. The recent Brazilian arbitration law, and the mandatory mediation Argentine law that has been established for more than seven years now, in Buenos Aires area, will be described in an interactive way. In these countries, an increasing number of ADR providers, public and private, are becoming active in the field, and the number of professionals trained as arbitrators and mediators is growing very fast. A modern arbitration statute that has passed the Argentine Senate on November 28th 2002 will be presented and we will explain how we are trying to improve our arbitration legislation. We will also deal with hot topics in mediation and multidoor programs that have been established recently in Buenos Aires. Presenters will also discuss current ADR programs in Colombia. The U.S.Agency for International Development (USAID) is providing financial assistance to increase the availability of ADR throughout the country as an efficient, accessible and restorative conflict resolution mechanism. This part of the presentation will outline USAID\'s policies and strategies to offer technical assistance and financial aid to the Colombian government in establishing community mediation centers throughout the country and the presentation will encompass the goals, accomplishments, challenges and future direction of this ADR development program. We hope that the session will help non-South American attendees to understand better the hot topics of ADR and its changing legal landscape in biggest South American countries and familiarize them with South American ADR practices. We definitively expect that perhaps our efforts, fights and struggles could show other colleagues some steps to be taken into account in other regions of the world.

A14. Truthfulness and Lying in Mediation: Hidden Agendas and Shell Games

Jay Siegel, Brookline, MA Jack Himmelstein, New York, NY Louise E. Dembeck, New York, NY Alida Camp, New York, NY

The success of mediation depends upon the parties respecting the integrity of the process. However, too often they and their lawyers come to the table intending to use mediation for ends other than a good faith settlement. Not only do they play games with the mediator by appearing candid while telling less than the whole truth, but they may engage in a fishing expedition or through bluffing, manipulate opposing parties. How may a mediator counter such shell games? This energetic panel, which was so well-received in 2003, will lead another spirited interactive session that examines these tactics. We will discuss how mediators can protect themselves and the process from the games lawyers (and their clients) play.

A15. Enlightened use of Structured Settlements to Resolve Cases

Edward “Trey” Bergman, III, Houston, TX Lawrence Curtis, Rockville, MD Thomas R. Woodrow, Chicago, IL James L. Street, Austin, TX

This exciting and informative multi-media presentation is designed to show both plaintiffs and defense counsel, as well as mediators, methods by which to resolve personal injury disputes through the innovative and creative use of structured settlements. The panel consists of a National Settlement Counsel for the Firestone Delamination litigiation, a National Defense Structured Settlement Broker, a National Plaintiffs Structured Settlement Broker and a National Attorney-Mediator.

A16. Better than Tort Reform: The Health Care Ombuds

12 Carole Houk, Alexandria, VA Ed Porter, Oakland, CA

The current system for resolving medical malpractice disputes in the U.S. is lengthy, inefficient, and expensive. Compensation often turns on the severity of the injury more than negligence, and litigation –even mediation of litigated cases - rarely results in an improvement in medical care. It has long been theorized that the U.S. healthcare system would benefit, both practically and economically, from earlier and less adversarial conflict resolution techniques than are currently practiced, particularly between patients and providers. An innovative and sensible model of resolving patient-provider issues shows clearly promising results in its first two years of operation. The National Naval Medical Center (NNMC) in Bethesda, Maryland is the first acute health care institution in the U.S. to establish an Organizational Ombudsman/Mediator (OOM) position for the purpose of resolving healthcare disputes such as unexpected adverse outcomes, medical errors, and possible malpractice significantly earlier in the process and outside of the more traditional legal venues. Through the use of an experienced clinician well trained in the disciplines of mediation and ombuds practice, NNMC has improved patient safety, provided creative options for resolutions, enhanced both staff and patient satisfaction and created an informal feedback loop that identifies and fosters systemic improvements within the hospital.

Friday, April 16 7:30 am - 8:15 am Early Friday Morning — Gentle Yoga - An Opportunity for Guided Practice

Helaine Golann, Newton, MA Dwight Golann, Boston, MA

Peace of mind and a calm body are important to being effective at ADR. Warm up for an active day at the conference by joining us for 45 minutes of gentle yoga, led by a certified Kripalu yoga teacher. We will not be teaching yoga, and this session is not meant for beginners. But novices and once-a-week practitioners are very welcome. If you like to do yoga, we hope you will join us.

Concurrent B: Friday, April 16 10:15 am – 11:45 am

B1. Following Goldilocks through Grizzly Choices: Update on Drafting Effective, Enforceable Arbitration Clauses

Anne W. Larkin, Richmond, VA Paul Dubow, Danville, CA John Allen Chalk, Fort Worth, TX Stuart Widman, Chicago, IL

Update of recent case law challenges and upholdings of arbitration clauses; drafting considerations to continue to get enforceable results.

B2. Negotiation Effectiveness: Is it the Words We Use, the Meaning We Intend, or Who’s Speaking That Counts?

Deborah M. Kolb, Boston, MA Jonathan R. Cohen, Gainesville, FL Andrea Schneider, Milwaukee, WI

In this presentation Deborah Kolb will share her insights about “shadow negotiations” and the “moves” and “turns” negotiators employ as they manage the complex relationships inherent in every negotiation: How do parties position themselves to claim legitimacy & maintain credibility, assert their power & influence; and shape perceptions of what solutions are possible? Jonathan Cohen makes a case for “linguistic awareness,” challenging neutrals and negotiators to invest intention and mindfulness at the level of the spoken word. The “text” we choose to use, including labels & metaphors, may influence participants’ perceptions of each other, the dispute resolution process, and potential outcomes.

Andrea Schneider will posit when measuring negotiators’ effectiveness, does gender make a difference (anymore?) or is it all about style? Schneider’s recent empirical work compares “problem-solving” and “adversarial” negotiation styles in both men and women and then asks subjects to evaluate their fellow negotiators’ effectiveness—with some surprising results. Amy Glass: Will ask whether this rings true. Does it work in practice? An experienced mediator will offer a practitioner’s reaction to the panelists’ presentations and moderate discussion between panel members & the audience.

B3. Can Community Mediation Survive Its Own Success?

Mark V. Collins, Cohoes, NY Linda Baron, Washington DC Andrew Thomas, Rochester, NY

Community Mediation has evolved and proliferated for more than thirty years in North America, and in so doing, has provided a strong foundation on which private and court-annexed mediation has also grown. This workshop intends to highlight the accomplishments of Community Mediation, illustrate how they have impacted courts, discuss the dangers and pitfalls that community mediation centers are 13 contending with, and demonstrate the interconnectedness between the successes of community, private and court-annexed mediation to the field of alternative dispute resolution.

B4. A New Frontier in Dispute Resolution: ‘Up Front’ Prevention, Control and Early Resolution of Disputes

James P. Groton, Atlanta, GA Dorothy Terrell, Vienna, VA Lester Edelman, Falls Church, VA Gerald S. Clay, Honolulu, HI

Dispute resolution typically focuses on disagreements that have already ripened into disputes. However, the highest and best forms of dispute resolution are (a) preventing disputes in the first place; (b) managing problems before they develop into disputes; and (c) resolving disputes as soon as they develop, while facts are fresh and before hostilities have escalated. In recent years the construction industry has developed many techniques for preventing, managing and quickly resolving disputes. These techniques have proved to be highly successful, and they are readily transferable to other areas of business.

This program will describe the dozen or so innovative prevention and early resolution techniques that exist, and demonstrate how they can be used in virtually any business environment. These techniques move the dispute resolution process “upstream” to the sources of disputes, and add significant new dimensions to the practice of dispute resolution.

The panel includes lawyers who have had vast experience in construction industry dispute prevention and early resolution, as well as experience in other fields of business and governmental activity.

B5. Commercial Mediator as Deal Maker: Meeting the Needs of the Adversarial Litigator

Simeon H. Baum, New York, NY Susan D. Romer, New York, NY Stephen Hochman, New York, NY Steven Bloom, New York, NY

Participants will be further aware of the facilitative and evaluative approaches to mediation. Participants will be able to listen and engage in what promises to be an animated panel discussion between proponents of both the evaluative and the facilitative styles of commercial mediation. Participants will also have the valuable experience of listening to a consumer of commercial mediation to learn what it is such a client is seeking. Participants will be able to appreciate that within the facilitative-evaluative continuum is a mediator/deal maker’s tool chest. The mediator/deal maker can use the various tools within the continuum at various times and use various styles but successful commercial mediation is all about effective deal making.

B6. Court Related Mediation? - What the Research Does and Doesn’t Show

Ellen M. Miller, San Diego, CA Susan Yates, Chicago, IL Heather Anderson, San Francisco, CA

California's Administrative Office of the Courts has recently completed an extensive analysis of five different civil mediation programs operating in five state courts. The Center for the Analysis of ADR Systems (CAADRS) also completed a comprehensive analysis regarding pace, cost and satisfaction of more than 60 studies of court mediation programs. What can we learn from these studies-- both in terms of the impact of court related mediation and how to better write and conduct evaluations? What are the limitations of the research? Are we evaluating what we want to know? Are the findings useful when all is said and done? This program will be an information session for those who participate in, evaluate and study programs.

B7. New Approaches to Conflict Resolution in the Workplace: a Panel Discussion

Ruth D. Raisfeld, Scardale, NY Richard G. Hatfield, Chapel Hill, NC Marsha Wagner, New York, NY Stephanie Morse, Weehawken, NJ David B. Lipsky, Ithaca, NY John Sands, West Orange, NJ

A new book, “Emerging Systems for Managing Workplace Conflict,” by David B. Lipsky, Ronald L. Seeber, and Richard D. Fincher, describes the evolution of corporate dispute resolution systems from litigation avoidance and claim settlement mechanisms to processes that promote a corporate culture of conflict management. Based on a survey of 1,000 of the nation’s largest corporations, hundreds of interviews with executives, managers and attorneys in sixty companies, and extensive discussions with dispute resolution professionals, the authors identify important criteria for introduction, design and implementation of internal ADR systems. Author David Lipsky, Professor of Industrial and Labor Relations and Director of the Institute of Conflict Resolution at Cornell University, will report on the conclusions he and his co-authors reached about the past, present, and future of corporate ADR systems. Marsha Wagner, Ombudsman at Columbia University since 1991, and a member of the Board of Directors of The Ombudsman Association, and Stephanie Morse-Shamosh, an attorney and First Vice President, Program Facilitator, for the Issue Resolution Office of UBS Financial Services, Inc. since 1999, will offer their experiences as proponents and directors of internal ADR systems that have been influential in the higher education and corporate sectors, respectively. The 14 discussion will be moderated by Ruth Raisfeld, an employment relations lawyer who serves as a mediator, arbitrator and investigator of workplace disputes.

B8. Mediation Case Law Revue

James R. Coben, St. Paul, MN

Using video reenactments of the year’s leading mediation cases, Professor James Coben, director of the Dispute Resolution Institute at Hamline University School of Law and mediation editor for the World Mediation and Arbitration Report, reviews the latest developments in mediation case law. The revue provides an efficient (and entertaining) look at the steadily increasing volume of litigation about mediation. Participants also are provided with a written summary of the year’s top mediation cases.

B9. Practical Ethics: Resolving Ethical Dilemmas Through Collaboration

Jeremy A. K. Zeliger, Cohoes, NY Julie Loesch, Buffalo, NY

The goals for this workshop include: Helping ADR professionals recognize ethical dilemmas, introducing a dynamic and collaborative process to resolve ethical dilemmas, reviewing model standards of conduct, and discussing actual ethical dilemmas.

In this workshop, attendees will participate in a small-group exercise that highlights the benefits and limitations of traditional rules-based approaches to resolving ethical dilemmas. Participants will also explore how two or more standards of conduct for a given ADR process can yield an ethical dilemma, as well as how standards of conduct for ADR professionals can conflict with any or all of the following: standards of conduct for other professions, the ADR professional’s internal ethos, and the reporting requirements of referral organizations.

The presenter will then define and discuss Practical Ethics, which is a framework for resolving ethical conflicts that challenges professionals to link theoretical concerns with practical ones, acknowledge institutional considerations, and decide who has (or should have) authority to resolve these dilemmas. Participants will also apply the model standards of conduct for mediators to a hypothetical ethical dilemma in a structured, collaborative process, and they will compare and contrast this collaborative approach—which has its roots in the Practical Ethics paradigm—with more traditional, rules-based approaches to resolving ethical problems.

B10. Cutting Edge Strategies to Resolve Complex/High Asset Property and Spousal Support Issues

Forrest S. Mosten, Los Angeles, CA

This workshop will explore creative mediator approaches to valuing businesses and resolving spousal support in long-term marriages. Use of experts and coordination with lawyers at the session will be demonstrated.

B11. Accountability in Governmental Dispute Resolution

Nina E. Olson, Washington, DC Judy Kaleta, Washington, DC John C. Fleming, Austin, TX Robert M. Ackerman, Carlisle, PA Richard Reuben, Columbia, MO

Public accountability is an important element of democratic governance. Yet it presents particular challenges to governmental dispute resolution because of the unique process requirements of mediation, ombudsry, and other dispute resolution processes. Such crucial process values as independence, confidentiality, and neutrality can conflict with reporting, effectiveness, and political obligations of government servants, duties that have only become heightened in the aftermath of corporate scandals, Sept. 11, and lean economic times. This panel explores the implications of this tension for governmental dispute resolution program design and operation.

B12. Permanency Planning Mediation

Frank Woods, Cohoes, NY Susan Glatki, San Rafael, CA Kathleen Cleary, San Rafael, CA May Ping Szeto, Brooklyn, NY Jenny Psaki, Brooklyn, NY

This session will look at two different aspects of Permanency Planning Mediation. The first will be of how New York City Family Court is developing a court connected program that uses collaborative decision-making among all the parties involved in a child protective case and engages parents directly in the decision-making about the future placement issues of their children and enables them to remain invested in their children’s lives. The second segment of the session addresses California’s PPM Program run by Consortium for Children, an established independent non-profit agency that offers an opportunity for birth families and prospective permanent families to determine the types of contact the children should maintain with their siblings, birth parents and others who have had a significant relationship in the children’s lives. Consortium for Children is the largest program of its kind in the nation, has conducted over 1000 permanency planning mediations and saved the State of California millions of dollars. 15 Both programs will discuss the dynamics of multi-party mediation, what cases are appropriate for Permanency Planning Mediation, how they have helped move children to permanency faster, helped maintain stable relationships for children, and assisted agencies in providing better services and improved their relationships with the families they serve.

B13. The New York and Panama Convention Connection: The Treaty Framework for International Arbitration

Steven K. Anderson, San Diego, CA Delissa A. Ridgway, New York, NY John P. Bowman, Houston, TX

The speakers will discuss and analyze the differences and similarities of the New York and Panama Conventions. The program will include both practice insight into the mechanisms of these treaties and also the trends of enforcement and use around the world. Judge Delissa Ridgway will share her knowledge and experience of the New York Convention and corresponding enforcement trends. John Bowman, the author of a book and frequent lecturer about the Panama Convention will discuss how the mechanisms of this treaty differ and why it might matter. Steve Andersen will discuss how a new cooperative agreement between the Inter-American Commercial Arbitration Commission and the International Centre for Dispute Resolution lay a new foundation and infrastructure for the use of the Panama Convention.

B14. The ABCs of Online Dispute Resolution: What is It and How Does It Affect Me?

Debi Miller-Moore, Charlotte, NC Anthony Patrick Limitone, Jr., Morristown, NJ Karen Wilcox, Uniondale, NY

This program will address issues of interest to neutrals concerning the fast-growing field of online dispute resolution (ODR). Examples of ODR will be given with an emphasis on the role of the neutral today and into the future and will look at the possible impact on “traditional” ADR practices. The program will include a discussion of the Best Practices recommendations for ODR providers and neutrals from the ABA’s eCommerce and ADR Task Force along with a brief explanation of some of the technical standards needed behind the scenes.

Both providers and neutrals with experience in ODR will be represented on the panel.

B15. Games People Play: Enlarging Our Tool-Box of Techniques to Promote Mediation Across Cultures

Ewan Malcolm, Edinburgh, UK Avi Schneebalg, Brussels, Belgium Giuseppe de Palo, Rome, Italy Lou Gieszl, Towson, MD

Based on lessons learned advancing the use of mediation in Maryland and Scotland, this energetic workshop features fun, interactive, competitive and co-operative activities that help explain conflict resolution to diverse audiences. The session highlights techniques you can use and provides an opportunity to discuss innovative ways of promoting understanding of ADR across cultures.

Concurrent C: Friday, April 16 2:00 pm – 3:30 pm

C1. Class Arbitration Under Bazzle: What the Future Holds for Arbitrators, Advocates and Parties

Edward F. Sherman, New Orleans, LA Chris Drahozal, Lawrence, KS Eric Tuchmann, New York, NY Maureen Weston, Malibu, CA John Townsend, Washington, DC

Prior to the Court’s decision in Bazzle, the American Arbitration Association was developing guidelines for class arbitrations. Now a reality, this panel will discuss the Bazzle decision and its ramifications for the arbitration process. Additionally, the panelists will discuss the AAA’s new Supplementary Rules for Class Arbitrations and provide insight into the discussions of the blue ribbon working group which has developed them. Also, there will be a presentation on previous experiences of earlier and existing mass claims in arbitration and how this area has developed.

C2. The Positive Side of Resistance

Lisa Gaynier, Ann Arbor, MI Sally Higgenbotham, Amesbury, MA Ann L. Begler, Pittsburgh, PA 16 The instinct to push back is very alive for many attorneys, mediators and others who are highly skilled in persuasive techniques and positional approaches. Yet, we often experience that each time we push, the other person pushes back harder and stronger. If we’re not careful, we find ourselves, and our clients, in an ongoing tug of war. Issues become diffused and confusing. Reaching resolution begins to feel impossible. Before we know it, we, and our clients, are on the brink of an impasse.

In fact, it is the counter-intuitive process of being able to actually see and understand the benefit of resistance, and being able, in real-time, to support the push-back that is the catalyst necessary to reach a resolution.

In this workshop, participants will learn a theoretical framework that identifies resistance as a positive force. You will identify specific forms of resistance that arise in mediations. Through interactive exercises, you will begin to learn how supporting resistance reduces conflict, avoids impasse and leads to change.

C3. Justice Initiatives Promoting Accountability, Competency and Community Safety

Alice J. Rudnick, Cohoes, NY Annemarie Adams, Ilion, NY Kathy Vaughan, Staten Island, NY Rosalyn Magidson, Goshen, NY

This session will explore innovative ways individuals, agencies and organizations promote restorative juvenile justice. The panel will highlight initiatives including school-based conflict resolution, juvenile accountability, peer and parent/child mediation, family group conferencing, community service and victim impact awareness education. Participants in this session will be encouraged to see their roles as facilitators in a restorative justice system that develops community partnerships, sets collaborative priorities, and assesses consistent policies and practices.

C4. Innovations in Evidence Presentations in Construction Arbitrations

Richard F. Smith, Vienna, VA Judith Ittig, Washington, DC Robert J. MacPherson, New York, NY Roy S. Mitchell, Washington, DC

Presenting persuasive evidence in construction arbitrations is often a difficult balancing act. How do you fulfill arbitration’s promise of speed and efficiency, while providing each party the right to fully present its case? Presentation of evidence summaries by attorneys and the use of panel testimony are two of several innovative ways to meet the needs of the parties and the arbitrators for efficient and organized evidentiary hearings.

This program will present in detail how attorneys can effectively present evidence and how panels of witnesses can efficiently provide the arbitrators with an organized body of evidence to make a reasoned decision. Other options will be discussed. The panel will share their practical experience and ideas based on actual arbitration experience in the United States and abroad.

C5. Mediating With —Not Against—Insurance Companies: Advanced Topics

Jacquelyn Beatty, Seattle, WA Jeff Kichaven, Los Angeles, CA Kim Hogrefe, Warren, NJ Jill Berkeley, Chicago, IL

A follow-up to Last Year's Well-Received Program on this topic. The successful mediation of commercial cases increasingly depends on the mediator's ability to deal effectively with insurance companies. Get rare insights into the thought process of insurance carriers and the lawyers who represent and oppose them. Topics will include: The simultaneous resolution of liability and coverage claims, allocation among multiple policy periods; and allocation among multiple layers of coverage.

C6. Caught in A Round-About: What Direction Should We Go From Here to Foster Good Faith Participation in Mediation by Mediators and Mediation Advocates

Jack W. Cooley, Chicago, IL Roger L. Carter, Columbia, MO Kimberlee Kovach, Austin, TX John Lande, Columbia, MO Homer La Rue, Washington, DC

In the last few years, numerous articles have been written by academics and practioners alike suggesting various avenues that the ADR profession should take to foster good faith participation by mediators and mediation advocates in mediation-particularly in the context of court-annexed mediation. This topic is seen as controverisal in the ADR community, and it has tradionally sparked vigorous debate. Courts on the one hand and mediators and mediation advocates on the other often disagree on what requirements should be imposed on the mediators and mediation advocates. The principal approaches to fostering good faith requirements in mediation generally fall into three categories: the sanctions approach; the anti-sanctions approach; and the moderate approach. In addition, proposals to promote good-faith participation differ 17 about how much policies should rely on sanctions-based rules and how much they should rely on other strategies. The panel will consist of academics, practitioners, and a former judge, each of whom has carefully studied the good faith issue and has written articles or reports on one or more of these approaches. The focus of the panel discussion will be a draft resolution on the good faith topic, which was drafted by the current Chair of the Section's Mediation Committee, and which is currently published for member's comments. Audience participation will be highly encouraged. Plan to come early and stay for the fireworks!!

C7. The Way You Wear Your (Neutral) Hat: Litigators Critique Neutrals

Abigail Pessen, New York, NY David Marshall, New York, NY Arnold Pedowitz, New York, NY Claire Gutekunst, New York, NY Anne Golden, New York, NY

Highly respected employment and business litigators who are frequent users of mediation and arbitration will offer valuable “consumer feedback” on neutrals from both the employee and management perspectives. Topics will include what litigators look for in a neutral, what they like - - and dislike -- about neutrals’ modus operandi, and whether they want different skills and styles from arbitrators and mediators. Lively interaction with neutrals in the audience will be encouraged.

C8. The Beauty of Conflict and the Power of the Visual Arts

Robert D. Benjamin, Portland, OR Sue Lynn Thomas, Portland, OR

Throughout history, aesthetics in general and the visual arts in particular----painting, drawing and sculpture---have been a primary means by which to 'regard the pain of others.' Artist's grapple with many of the same themes in their pictorial characterizations of conflict as do mediators and other conflict managers, and, as they have always done, breathe important and fresh perspectives into the understanding and management of conflict. Art offers important insights into the understanding of perspective, the power of context, and paradoxically, the beauty of conflict. Bosch, Goya, Picasso, Beckmann, Bacon, Richter, Giacometti, Golub, Kentridge and Kienholz are only some of the best known artists among many that will be viewed and considered in this interactive workshop with an eye towards reflectively helpfully thinking about managing conflict from a different vantage point

C9. Is There a Place for Justice in Mediation?

Ellen Waldman, San Diego, CA Jacqueline Nolan-Haley, New York, NY James J. Alfini, Houston, TX Jonathan M. Hyman, Newark, NJ

It is usually thought that "justice" is not the mediator's job. Justice is for the courts and its formal procedures, a world that mediation avoids. Ethical standards for mediators do not mention justice or make the seeking of justice any part of the mediator's role. Is this common view overdrawn? Has it become time to consider how concerns about justice could play a role in mediation? The panelists at this session will discuss how mediation might incorporate justice - both procedural and substantive, both for the parties and for others not at the mediation table - without losing the essential characteristics that give mediation its worth.

C10. Mediation and Domestic Violence

Nancy Ver Steegh, St. Paul, MN Kelly Browe Olson, Little Rock, AR

Victims of domestic violence should have the opportunity to make an informed decision about which divorce process will best meet the needs of their families. During this presentation social science research will be used to 1) establish that families experience different types of violence and differ from each other in ways that are significant for choosing a divorce process, and 2) provide objective information on how mediation and adversarial divorce compare in terms of effectiveness, satisfaction rates, and compliance with agreements or orders. Ten individual and systemic factors to be considered in choosing whether to mediate or use the adversarial divorce process will be suggested. The presenters will discuss practice safeguards and define the initial and on-going training that mediators should have when working with domestic violence survivors, the mediator qualities attorneys should look for when referring their clients to mediation, and how to prepare their D.V. clients for family mediation. Ideas for reform will be outlined.

C11. Ready, Able, and Neutral?: Using, Abusing, and Improving Inside-the-Government Mediators

Neil Kaufman, Washington, DC Elissa Tonkin, Boston, MA John Conbere, Minneapolis, MN Elena Gonzalez, Washington, DC

18 ADR practice, especially mediation, is spreading into new arenas that highlight striking fairness and practicality challenges. In particular, government agencies and corporations are increasingly training and employing their own personnel to serve as in-house, part-time (or “collateral duty”) mediators – often for workplace, regulatory, policy, and other conflicts to which the organization is itself a party.

The proposed session will not debate whether this trend is good or bad. Rather, it takes this as a fact and seeks to offer thoughtful advice to agency officials, mediators, and program managers. Panelists will discuss spotting and dealing with systems design, quality, ethics, confidentiality, and other questions that, if mishandled, could affect program success and even impair the dispute resolution field’s broader credibility.

C12. Online Parent/Youth Coaching Program

Frank G. Evans, Houston, TX Bruce Wettman, Houston, TX John Coselli, Houston, TX Charles Asher, South Bend, IN

The primary objective of this Online Parent/Youth Coaching Program is to give courts, schools, and juvenile institutions an additional way to encourage responsible communication and conflict resolution methods among parents and their children. In essence, the program enables parents and their children to communicate effectively and to resolve conflicts in a collaborative manner online with the assistance of a trained conflict resolution coach.

The Online Parent/Youth Coaching Program is available, free of charge, to all Family Law and Juvenile Courts, as well as to all schools and juvenile institutions.

In the intitial program, the program managers, the Center for Legal Responsibility at South Texas College of Law and Resolution Forum, Inc a(501) (3) non profit organization, will collaboratively train and coordinate a team of volunteer law students who will administer the program with oversight by a Coordinating Board of the participating entities. Each conflict resolution coach will also have the ongoing advice and counsel of a select board of experts who will be available for consultation on the program's online bulletin board. After the completion of the initial program phase, the program will be analyzed and revised for widepread replication.

The program also incorportes special materials for divorcing parents that are available online form the Freedom 22 Foundation’s UpToParents Program, [email protected]

C13. Mediating in the Shadow of Different Law

Nadja Alexander, Queensland, Australia Lisa B. Bingham, Bloomington, IN Julie Macfarlane, Ontario, Canada Margaret Ross, Old Aberdeen, Scotland, UK

Mediation practice is shaped by the dispute system design within which it occurs. The incentives, obstacles, and barriers to mediation will vary with the structure and rules of each national judicial system. Even within English-speaking countries sharing a common law and adversarial tradition, there is wide variation in practices concerning pleadings, case management, the timing of an intervention, attorneys’ fees, discovery, rules of evidence such as the admissibility of admissions against interest in settlement negotiations, privilege, confidentiality, and mediator compensation. There is also wide variation in the institutionalization of mediation. In some jurisdictions, all practice is freestanding and independent from the courts. In others, practices may be embedded in a court-annexed program. This in turn has implications for local expectations regarding the model of practice, training, and credentialing for mediators prevalent in that country. This comparative and international session will explore these differences and their impact on practice across four jurisdictions: Australia, Canada, Scotland, and the United States.

For example, recent law reform in the Australian system of courts and tribunals has introduced certain procedures inspired by the civil law tradition. Two of these include increasing judicial case management and the introduction of a settlement function of the judge. Where civil law procedural elements have entered the Australian legal system, one also notices a tendency for court-related mediation programs to form part of the general justice system (the justice model).

Canadian systems differ from the US court models as to timing of mediation. In both Ontario and Saskatchewan, which have the most developed court-connected programs, mediation is at a very early stage, before discovery. In Saskatchewan, almost all mediators are non- lawyers, something also true in certain but not all parts of Ontario. These design features are both a function of culture and affect mediation practice.

Scotland has a mixed civil and common law tradition that is generating scholarly interest as a model for reconciling the legal systems of the UK and continental Europe. Scotland does not provide for discovery in civil litigation. This feature may both help and hinder mediation. Counsel has an incentive to use mediation to obtain information about a case, and mediators can use new information to work toward settlement. However, the absence of disclosure may obscure the underlying conflict. Moreover, it is part of a culture of surprise in litigation that makes clients, and some lawyers, reluctant to disclose information voluntarily in mediation.

This panel will highlight similarities and differences among the four Anglophone jurisdictions. It will present an overview of structural dimensions along which systems can vary, outline features unique to each judicial system, and discuss how these structural features affect mediation practice in each jurisdiction. The presenters include both scholars and practicing mediators. 19 C14. When the Going Gets Tough: Advanced Mediation Techniques

William Bettinelli, San Francisco, CA John Bickerman, Washington, DC Amy J. Glass, Kalamazoo, MI Michael Young, New York, NY

The presenters will introduce a set of scenarios as a starting point for panel and audience discussion. The focus of this session will be on multi-party cases.

C15. Skills and Techniques Used in Mediation and Conflict Management in Hospitals

Carol Liebman, New York, NY Chris Hyman, New York, NY

We will present our work exploring ways the skills and techniques used in mediation and conflict management, and the theories which underlie those processes, can be used in a hospital setting to enhance physician-patient communications as a means toward improved patient safety, patient relations and liability risk management. This project is part of The Pew Charitable Trusts grant of $3.2 million to The Project on Medical Liability in Pennsylvania, a two-year program of research, consultation, and communication that seeks to provide objective information about the medical liability system, broaden participation in the debate, and offer new approaches to prevent errors and compensate injuries. It is our thesis that the skills used by mediators to enhance communication, help parties identify interests, exchange information, and craft workable long term resolutions could be useful in the aftermath of adverse medical events.

Concurrent D: Friday, April 16 3:45 pm – 5:15 pm

D1. International Arbitration & the Shrinking World

Julie Bedard, New York, NY David Rivkin, New York, NY Richard Naimark, New York, NY Carroll E. Neesemann, New York, NY Robert Davidson, New York, NY

Over the years the dominance of the world economy by the US has had a tendency to “Americanize” international arbitration. Thus, for example, discovery has become more prevalent, and cross-examination of witnesses has become commonplace. As the world shrinks and the trend towards a global economy continues -- and international arbitration becomes more prevalent – what further changes can be anticipated? For example, what affect, if any, will result from developments in the U.S. like the newly revised Code of Ethics for Arbitrators that will “internationalize” domestic arbitration and does not seem to be limited by the borders of the U.S., or the new California Standards for Disclosure by Arbitrators in Contractual Cases that will require disclosures about international arbitrations for arbitrators who hear any case in California. The panel will be comprised of leading experts and practitioners who will have to deal with these matters in the marketplace, They will address what is anticipated and seek out the views of the experienced neutrals in the audience.

D2. Multi-Dimensional Communication: Taking Communication into New Territory

Barbara Madonik, Toronto, Canada

This encore presentation will revisit and build upon the material that brought another capacity crowd to Barbara Madonik’s session at ABA’s annual dispute resolution conference in Seattle. Barbara will return for another fast-paced, hands-on workshop where she exposes many elements of verbal and nonverbal communication patterns that conflict resolution professionals often miss. During this session she will demonstrate how to work with a number of innovative communication strategies revealed in her book, I Hear What You Say, But What Are You Telling Me? The Strategic Use of Nonverbal Communication in Mediation. In this interactive workshop participants will discover creative ways to control mediation communication and eliminate nonproductive activities. They will learn how to get the big picture by standing across the room from parties. They will discover how to pick up more information by simply changing small ways they talk on the telephone and listening for what is really important. They will work with the presenter as she points out how to create powerful rapport and avoid inadvertent pitfalls that may be tripping them up. With demonstrations and exercises that move from space, touch and tone to noticing factors that can forecast how parties might react under stress, this jammed packed session will examine many elements most mediators and arbitrators miss. Their exploration of multidiminational communication will allow them to experience and practise different dimensions of communication that provide the seeds for collaborative environments and resolution. Session participants will develop a new awareness of how to harness many communication dynamics that may now work for them instead of against them.

D3. After Deadly Conflict: The Role of Truth and Reconciliation Commissions in South Africa and Peru

Alex Boraine, New York, NY 20 Javier Caravedo, Lima, Peru Donna L. Pavlick, Columbia, MO Susan Opotow, Boston, MA Paula M. Young, Grundy, VA Mathew Kukah, Boston, MA

This program will cover three topics. It will begin with a general analysis of the theory behind the use of truth and reconciliation commissions as a vehicle for fostering social justice and reconciliation after deadly conflict. It will next consider the work of the Peruvian Truth and Reconciliation Commission, which issued its nine-volume report in late August 2003. The commission concluded that more than 69,000 Peruvians died or disappeared from 1980 to 2000 during a period of violent guerrilla insurgency and authoritarian government. It will also consider the political and social response to the report and the hurdles the commission faced in completing it. This portion of the program will be presented by one of the persons involved in preparing the final report.

The program will end with a discussion of the cultural values of black South Africans that shaped that country’s peaceful transition to a democracy, in which blacks exercised the right to vote for a president and parliamentary representatives for the first time in twenty-five years. We will consider the cultural value of ubuntu and describe its role in a transition to democracy based on a restorative justice model. Under the South African transition plan, a Truth and Reconciliation Commission (TRC) heard and recorded the testimony of 37,672 victims of human rights abuses and the amnesty applications of over 7,000 persons who committed those abuses. If the TRC granted amnesty to a human rights abuser, he or she could not be sued by his or her victims or prosecuted by the state for the crimes covered by the amnesty. As the quid pro quo offered to victims for foregoing any right to civil suit or criminal prosecution, the state promised to pay reparations consistent with the cultural value of ubuntu and international law.

The TRC concluded its work earlier this year, but the promise of reparations remains unfulfilled and many victims feel cheated. Reparations play some role in healing the wounds of apartheid’s victims, but more importantly, under ubuntu, reconciliation with wrongdoers cannot happen without payment of the fine or reparation. The state’s failure to pay reparations may jeopardize the ability of South Africa to reach the goals set out in the preamble to the Promotion of National Unity and Reconciliation Act. It calls for “the need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization.

D4. Curing Conflict: Bridging the Divide Between Dispute Resolution and Health Care

Virginia L. Morrison, San Anselmo, CA Lorraine Sanchez Hayes, Peachtree City, GA Dale Hetzler, Atlanta, GA Debra S. Gerardi, San Anselmo, CA

It is rare for a field to be more rife with conflict and pressures than health care is, but conflict management techniques and processes have not been widely adopted. How can DR professionals more effectively integrate their expertise into health care operations? What roles do identity, complex adaptive systems, competing cultures, and accountability play? What case can we make that DR techniques reduce errors and litigation, improve patient care and retention of professionals, help allocate finite resources, and decrease costs?

This interactive session will discuss current DR models in health care and the possibilities for culture change through DR, including themes and insights generated during the March 2004 conference organized by session presenters: Advancing Conflict Management in Healthcare: An International Dialogue on Improving Working Relationships, Collaborative Leadership, Culture Change, and Community Building.

D5. Build Better Corporate Boards: Dispute Resolution for Publicly Traded Corporations

John Wofford, Cambridge, MA Margaret Blair, Washington, DC Reid Meyers, San Antonio, TX Tina S. Van Dam, Midland, MI

Corporate Boards, CEOs, and General Counsels of large, publicly traded corporations are involved with decisions that would be improved by the participation of DR professionals, including development of Corporate Mission statements, strategies for dealing with serious disputes involving public agencies, governments, major customers, suppliers, workers in general, or key personnel, and disputes over accounting practices, among others. This program will be for members who are interested in the cutting edge of the theoretical and policy debate among corporate law scholars, and also Section members who work with corporations (or who hope to work with them in the future).

Participants in the Panel Will Address Some of the Following Issues: What the Economists and Legal Scholars are Saying, and Why it Matters; Focus on Share Value to prevent excessive CEO empire-building and other abuses; Focus on building trust among key employees, suppliers, customers, communities, states, countries.

D6. Appropriate Dispute Resolution in the Courts: Efficient Matching of ADR Processes to the Case

David Michael, Washington, DC Howard Herman, San Francisco, CA Daniel Weitz, New York, NY

21 Ever since Professor Frank Sander introduced the concept of the Multi-Door Courthouse, ADR program administrators have experimented with the practice of “fitting the forum to the fuss.” This program will explore the evolution of several state and federal court ADR programs including the D.C. Multi-Door Courthouse, one of the first Multi-Door Courthouses in the United States and the Northern District of California, considered by many as the “birthplace” of Early Neutral Evaluation. Topics include: What value is there in matching processes to cases? Is it working? Are we agreed as to the criteria among the different ADR processes? Can we still say that certain categories of cases are more appropriate to specific processes or must referrals be made on a case by case basis? Panelists will also discuss what Multi-Option ADR Programs look like today and the implications for the Multi-Door Courthouses of the future.

D7. Mediating EEO Claims: The Faults and Failures of Successful ADR Programs in the Federal Government

Howard Gadlin, Bethesda, MD Carrie Menkel-Meadow, Washington, DC Wallace Warfield, Fairfax, VA Gary Gilbert, Washington, DC

Throughout the federal government agencies boast of the success of ADR in addressing EEO complaints. Reports on such programs cite cost savings, faster resolution of cases and disputant satisfaction ratings among the virtues of ADR. This panel will present a detailed critical analysis of the use of ADR in addressing EEO complaints in the federal sector. The analysis will examine how such programs encourage, or even require, employees to translate common workplace grievances that have no relation to EEO issues into allegations of discrimination. We will argue that as currently operating, the EEO ADR process actually heightens the level of racial tensions and hostilities within the federal workplace. We will discuss the ways EEO ADR programs can then be seen as contributing to the reproduction of patterns of discrimination and of racial and ethnic inequality. Using the EEO ADR programs as examples we will also critique the expansionist philosophy of ADR programs and proponents and suggest alternative ways of envisioning ADR programs.

D8. Perspectives on Race and ADR from Law Professors of Color and Teachers of Dispute Resolution

Llewellyn Joseph Gibbons, Toledo, OH Benjamin G. Davis, Toledo, OH Isabelle R. Gunning, Los Angeles, CA Michael Z. Green, Fort Worth, TX

This year and during the 2003 ABA Section of Dispute Resolution Spring Conference, a special pre-conference forum was held on expanding opportunities for minorities and women in dispute resolution. This program will continue those efforts by providing the perspectives of three African American Professors of Law and Dispute Resolution Teachers and their views about the implications on racial justice from the continued growth of the dispute resolution movement. Nearly 20 years ago, a landmark article criticized the use of Dispute Resolution from a racial justice perspective. See Richard Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359. This panel will explore the aspect of race in present day application of dispute resolution in three discrete and distinct settings: international; intellectual property and technology; and employment and labor. Professor Benjamin Davis, University of Toledo School of Law, will address racial perspectives in international dispute resolution within his paper and presentation, “The Color Line in International Commercial Arbitration.” Then Professor Llewellyn Gibbons, University of Toledo School of Law, will address racial perspectives in intellectual property and technology dispute resolution within his paper and presentation, “On the Internet Nobody Knows Your Race or Ethnicity, or Do They?” Finally, Professor Michael Green, Texas Wesleyan University School of Law, will address racial perspectives in employment and labor dispute resolution within his paper and presentation, “Agreements to Arbitrate Future Employment Disputes As A Condition of Employment: Are They Really Racially Restrictive Covenants?” Professor Isabelle Gunning, Southwestern University School of Law, will act as overall moderator and add her own insights to the panel discussion.

D9. The Review of the Model Standards of Conduct for Mediators

Wayne Thorpe, Atlanta, GA Terry Wheeler, Columbus, OH Sharon Press, Tallahassee, FL

The Section of Dispute Resolution, along with the American Arbitration Association and Association for Conflict Resolution, are reviewing the Model Standards, which were first adopted by these three organzizations in 1994. A committee composed of two representatives from each organization is leading this effort, with the assistance of a reporter. The panel will identify issues they are dealing with in their review and invite comments from the audience on issues of concern as well.

D10. How to Safely Provide Children a Voice in Mediation

Gay G. Cox, Dallas, TX Jill M. Katz, Kansas City, MO Lori Burns Bucklew, Kansas City, MO Joe Scroppo, Manhasset, NY

22 Mediation works best when all of the stakeholders are represented in the mediation. When parents divorce, mediators often define the stakeholders as the parents. This definition excludes the most crucial part of the divorce mediation, the children. Children can and should be safely, effectively and appropriately included in the mediation process. This presentation will give attendees an overview of how the child's voice is included in the mediation process. The presenters will provide practical information to enable mediators and other practitioners to incorporate the child's voice in the mediation process in a safe, effective and appropriate way.

D11. Disputants’ Voices in Mediation: Is Satisfaction All They Want or Need?

Nancy A. Welsh, Carlisle, PA Grace E. D’Alo, Carlisle, PA

In their responses on mediation satisfaction surveys, disputants report that they get what they want. But do they get what they need and are entitled to expect? Based on observations of mediators, qualitative measurement of their performance, and in-depth interviews with disputants before and after (immediately and 18 months after) their mediation sessions, the presenters will make suggestions regarding program design, process design, training, and evaluation. The data discussed is from a qualitative study of the Pennsylvania Special Education Mediation Services that was conducted by Nancy Welsh and Grace D’Alo in November of 2000. The session will also be structured to have an interactive discussion on whether quality performance requires clarity regarding both the procedural and substantive norms that should guide mediators within a particular context.

D12. The Shift from Adversary to Advocate — Collaborative Law

Suzanne Brunsting, Rochester, NY Paul Pearson, Buffalo, NY Barry Berkman, New York Rita S. Pollak, Brookline, MA

Collaborative Family Law – An alternative process for resolving family law issues and divorces is becoming available across the country. Collaborative Law is the practice and art of settling cases with legal counsel, but without court intervention at any stage. Each client has built- in legal advice and advocacy during negotiations and each attorney is committed to guiding the clients toward reasonable resolutions. Settlement is the only agenda and all involved rely upon an atmosphere of cooperation and professionalism.

The shift from adversary to advocate represents a profound change in focus for experienced matrimonial attorneys. We are changing the way we listen to clients and the way we ask questions to help identify legitimate long term needs and interests.

D13. International & Local Lawyers in Asian Arbitrations — Let’s Compare the Techniques and Approaches

Cao Lijun, Bejing, China Grant L. Kim, Seoul, Korea Sally A. Harpole, Hong Kong, China John Savage, Singapore Tushna Thapliyal, Bangalore, India

A review of techniques and approaches for party representation in international commercial arbitrations in the People’s Republic of China, Hong Kong, Korea, Singapore, the Philippines and India. Arbitrators and lawyers from Asia will comment on the use of evidence, witnesses and experts, cross-examination, time frames and scheduling, procedural challenges, conciliation combined with arbitration, dealing with local legal customs and client expectations and other aspects of arbitration practice in a lively question and answer format, highlighting international and local distinctions.

D14. Breaking Impasse: Techniques Mediators Use to Avoid or Break an Impasse

Robert A. Creo, Pittsburgh, PA Phyllis N. Segal, Boston, MA Marvin E. Johnson, Laurel, MD James K. L. Lawrence, Cincinnati, OH

This interactive workshop will focus on the wide range of tools experienced mediators draw from their toolboxes to break an impasse and purposively advance toward agreement. The discussion and role-playing will include risks attendant to the use of evaluative techniques, a mediator's proposal, suggesting an expert, brainstorming additional options, reality testing and exploring risk adversity.

D15. Water Wars Come East: Mediating Life’s Most Precious Resource

Dustin Ordway, Grand Rapids MI James Tierney, Albany, NY Peter Skinner, Albany, NY Pamela Bush, West Trenton, NJ

Westerners have long known that claims involving water scarcity are among the most vexing and complex disputes to resolve, with many lasting decades. Easterners are now learning the lessons of the West as competing interests vie for overburdened supplies of water. For example, the Delaware River is the longest un-dammed river east of the Mississippi, extending 330 miles. 15 million people depend on the 23 Delaware River Basin’s water which must also be used for industrial uses, recreational purposes and for the protection of aquatic life. This talented panel has years of experience in managing water supply issues and resolving the inevitable disputes that arise when interests clash.

D16. Mediation Representation: How to Represent Clients in a Problem-Solving Process

Lawrence R. Mills, Seattle, WA Ann E. Woodley, Tempe, AZ Gina Viola Brown, Washington, DC

This lively, interactive program is designed to assist mediation advocates in enhancing the effectiveness of their representation of clients before and during the mediation process. It will include coverage of creative problem-solving and negotiation techniques. The panel includes a litigator with experience representing clients in mediation, a professor who is the National Co-Chair of the Representation in Mediation Competition and who has has extensive experience running the ABA Section of Dispute Resolution's "Representation in Mediation" competition and has taught courses on this subject, and the ABA staff person who coordinates the national competition.

Concurrent E: Saturday, April 17 9:00 am – 10:30 am

E1. Avoiding the Arbi-Trial: How B2B Arbitration Can Be Expeditious and Cost Effective

Luis Martinez, New York, NY Elizabeth Shampnoi, New York, NY Gerald F. Phillips, Los Angeles, CA Stephen P. Younger, New York, NY Richard Mattiaccio, New York, NY Rona G. Shamoon, New York, NY

Myths abound about the case that took dozens of arbitration hearings and in the end cost just as much as it would have in litigation. This program and its distinguished panel will discuss how large Business to Business cases can benefit from the advantages of arbitration over litigation. It will also provide and demonstrate ways to streamline the process to make arbitration what it should be: quicker and less costly, NOT litigation in disguise, without any sacrifice in effectiveness of presentation. Discover how to avoid the pitfalls of a lengthy and costly arbitration as well as the steps to take towards efficiency well in advance of the dispute.

E2. Legal Educators’ Colloquium: The Interface between Negotiation Theory and Mediation Practice

Bobbi McAdoo, St. Paul, MN Scott Peppet, Boulder, CO Jacqueline Nolan-Haley, New York, NY

This session will discuss the implications of the emerging canon of negotiation for negotiation's counterpart, mediation. Our maturing understanding of negotiation theory offers more opportunities for mediators to inform the practice of mediation. What “best practices” for mediators are emerging? What implications do those theories have for the styles of mediation or other issues? Finally, the session will address the implications for our teaching.

E3. Legal Educators’ Colloquium: Grading in Negotiation Courses

Joseph Harbaugh, Fort Lauderdale, FL Russell Korobkin, Los Angeles, CA Michael Moffitt, Eugene, OR Charles Wilson, Columbus OH Kimberlee Kovach, Austin, TX

While many Negotiation courses share instructional methods and teaching goals, a surprising degree of variability exists in the evaluation mechanisms applied to students’ performances. No method of evaluating students in a skills-based course such as Negotiation is perfect. Nor does the elimination of grades address all of the considerations in structuring useful classroom experiences. How can instructors create evaluation systems that are fair, administratively workable, and reliable? Can evaluation methods promote appropriate experimentation, seriousness, and sustained learning? A panel of experienced negotiation instructors shares different perspectives on grading in negotiation courses.

E4. Legal Educators’ Colloquium: Lawyer as Problem Solver Exercises

Lela Love, New York, NY

This session will be devoted to examining how exercises, role-plays, and simulations can be most effectively used to develop the perspective of the lawyer as problem solver.

24 E5. Maximizing Corporate and Legal Performance Through ADR — Recent Research

Richard Naimark, New York, NY Timothy R. Lister, New York, NY Dorothy Crouch, New York, NY Greg Martire, Englewood Cliffs, NJ Robert Williams, New York, NY

In 2003, the American Arbitration Association (AAA) undertook a major research study that examined attitudes toward the use of non- judicial dispute resolution techniques among a broad range of businesses that included Fortune 1000 companies, medium-size public companies and privately held businesses. In this study, the AAA sought to determine whether there are characteristics that define different approaches to dispute management by corporate legal departments. The research explores the relationship between approaches to managing and resolving disputes and benefits to the company.

E6. Why are Public Meetings a Disaster? — ADR Tools, Techniques and Common Sense

John L. Krauss, Indianapolis, IN Nan Stager, Bloomington, IN

Why are public meetings a disaster? This program will cover the role of an in-house or contract neutral for a governmental agency in helping the agency understand how ADR processes can be used to avoid poor decisions, frustrating meetings, costly litigation and bad press.

The presenters will discuss the lawyer’s need to understand their role as a facilitator and conflict resolution educator in such areas as:

Rethinking the timing of public involvement in public policy decision-making The identification of key stakeholders Naming and framing the problem so that the issues and choices can be understood and owned by all the participants Structuring the physical setting of the rooms The need for ADR training of agency personnel Understanding your audience – diversity, knowledge, economic background Helping the public understand risk and rewards of proposed actions. Exchanging best practice situations and ideas ( What do you have in mind here?)

E7. Harassment Solutions Through Conflict Resolution

Michele Lane, San Ramon, CA Michal Longfelder, San Francisco, CA

Despite a plethora of trainings available today, workplace harassment remains the most challenging and serious concern facing employers and employees today. Organizations often sustain tremendous losses including damaged working relationships, litigation expenses, and mistrust leading to a non-productive workplace. While attorneys and dispute resolution professionals are typically brought in after the fact, many harassment charges can be avoided all together if employees have the skills and tools they need to address harassment.

This workshop examines how attorneys, ADR professionals, and employers can take a proactive stand to prevent harassment initially and, most importantly, how to address the inevitable turmoil amongst employees that results from a harassment claim. Participants will acquire a clear understanding of the critical skills employees need to avert harassment, and address the conflict that arises with harassment and in the workplace in general. Learn the basics of simple and effective conflict resolution skills used to avert future harassment claims, workplace conflict, and to create positive, productive work environments.

E8. Common Pitfalls and Some New “Twists” to IP ADR

Jeff Jury, Austin, TX David Plant, New London, NH Peter L. Michaelson, Red Bank, NJ Sandra Franklin, Troy, Michigan Alan Limbury, Wooloomooloo, Australia

This session, primarily in a round-table discussion and drawing from the speakers' actual experiences, will address common pitfalls that often occur in the context of traditional mediation and can cause it to fail when used to resolve complex IP disputes. The speakers will also discuss various novel approaches they used that successfully overcame these pitfalls. Relevant cross-cultural aspects, as they influenced the formation of these approaches, will also be addressed.

E9. Delivering Quality Mediation: What’s Ethics Got to Do With It?

Timothy Germany, Sands Point, NY Timothy Hedeen, Kennesaw, GA Roger C. Wolf, Baltimore, MD Mary Thompson, Austin, TX 25 Brad Honoroff, Brookline, MA

Numerous authorities have called for improving the training and support systems that promote ethical behavior in ADR. Observers call for more practical steps to (1) improve mediators', provider organizations', and trainers' awareness of ethics concerns and (2) inculcate improved skills to help them avoid ethical dilemmas or handle them effectively in real time. While some favor detailed, context-specific standards, others see greater benefit in enhancing educational and support devices that promote ethical behavior and help neutrals identify and effectuate effective, defensible responses in tough cases. This session will explore the relationship between ethics and quality mediation, focusing on steps to address the limitations of current thinking and practice, worthwhile ethics education “models” and training tools, tangible support mechanisms to aid mediators or other DR professionals with ethics dilemmas, and next steps in tying ethics into the way we teach, think, and act as dispute resolvers.

E10. Applying Improv Theater Skills for the Transformative/Problem-Solving DR Practitioner

Larry Jay Tish, Cambridge, MA Jen Ulin, Belmont, MA Rob DiNinni, Boston, MA Ron Jones, Boston, MA

Look behind the curtain to discover the wizardry of successful improv! Great improv actors master skills which are vital to successful DR practice. This is an on-your-feet session in which participants will learn and practice improvisational theater skills such as listening, being in the moment, and accepting offers. You will leave with a new perspective, some new skills, and a smile on your face!

E11. Mediating with the Government

Robert M. Levy, Brooklyn, NY Gerald P. Lepp, Brooklyn, NY Jeffrey M. Senger, Washington, DC

Mediating with a governmental agency presents practical constraints and structural difficulties. Frequently, the governmental representative lacks adequate authority. They must take the proposed settlement back to persons who were not present at the mediation. Parties do not communicate directly with each other, and they do not benefit from observing the process. However, the reality is that governmental agencies on all levels handle thousands of cases annually. Accordingly, these special considerations must be addressed and dealt with appropriately. Further concerns that can make mediating with the government more complicated are the need for public institutions to act uniformly in all cases, and to avoid compromise of certain fundamental principles. Finally, special considerations regarding confidentiality can arise in government mediations, because of the public's right to know how its money is being spent.

The workshop addresses the challenges of mediating with governmental agencies. The instructors, a United States Magistrate Judge, ADR Administrator in a Federal District Court, and Senior Counsel of the US Department of Justice, offer participating attorneys an opportunity to learn how to deal with these special considerations. At the end of the program, the audience is invited to share their own concerns or offer solutions they may have developed to problems in an open forum.

E12. Mindfulness in Mediation

Tuan Pham, Annandale, VA

Mindfulness in mediation is about self-observation and control. It takes mediators beyond the level of intellectual understanding of conflict resolution to actually experiencing it. Participants learn to: Draw parallels between mediation and meditation, i.e., instruments of peace building Appreciate the why, what, when and how of this 2600 year-old Buddhist tradition. Look, listen and “touch” deeply. Let go distraction to focus on the task at hand. Calibrate receptivity and activity. Disarm strong impulses where necessary. Turn each meditation session into a mediation simulation practice. Integrate mindfulness practice with a life of responsible action and service.

There will be a follow-up to this session on the morning of Sunday, April 18th.

E13. Pro and Con Globalization: Why Dispute Resolution Will or Will Not Work

Betty Southard Murphy, Washington, DC Jérôme Henry , Paris, France

The Program will review the FTAA, NAFTA, and the new FTA’s with Chile and Singapore and discuss their impact on workers’ rights and both the U.S. and global economies.

E14. How to Make Money Mediating

Diana Mercer, Playa Del Rey, CA 26 Andrew Golden, Santa Monica, CA Natalie J. Armstrong, Santa Monica, CA Daniel Naranjo, San Antonio, TX James MacPherson, Granite Bay, CA

This Marketing seminar will provide you with specific and proven marketing tools and techniques to help you build or augment a successful practice. We will give you the tools as well as some creative and inexpensive ideas to promote your practice. In addition, you will receive specific ADR business contacts and resources, links to appropriate media, and more than 60 success stories from around the globe.

E15. Emotion and Negotiation Success: Why Not Too Bad May Not Be Good Enough and the New Science of Efficient Emotion

Clark Freshman, Miami Beach, FL Daniel Shapiro, Cambridge, MA

This workshop goes beyond the usual assumptions about emotion and negotiation: the workshop draws on cutting edge original research to show that even very mild emotional changes can increase one’s success at negotiation. The workshop also draws on cutting edge research to show how positive emotions, such as happiness, enthusiasm, and optimism, make negotiators more successful. Finally, the workshop introduces a variety of tools to increase awareness of emotion, ways to shift emotions, and ways to modify negotiations when emotions seem stuck. Both faculty for this workshop study, teach, and write about emotion and negotiation. Dan Shapiro, a psychologist with the Harvard Negotiation Project and teacher at Harvard Law School, is currently finishing a book on emotion and negotiation with Roger Fisher, the best- selling author of Getting To Yes. Clark Freshman, a law professor at the University of Miami, is also writing a book on emotion and negotiation based partly on his own statistical research with Adele Hayes and Greg Feldman on how approaches to emotion predict success at law school and at negotiation.

Concurrent F: Saturday, April 17 10:45 am – 12:15 pm

F1. A New Era for Arbitration Ethics Cosponsored by the ABA Section of International Law and Practice

Florence Peterson, New York, NY Edward Anderson, Minneapolis, MN Richard W. Berry, New York, NY Ruth Glick, Burlingame, CA Jay Welsh, Irvine, CA Robert A. Holtzman, Los Angeles, CA

Recently, California enacted Ethical Standards for Neutral Arbitrators in Contractual Arbitrations which mandates comprehensive and special rules for arbitrator disclosure and action. Arbitration providers have come under legislative mandate as well. Have any of these statutory developments influenced the rest of the nation? Join representatives of the major ADR providers to see the effect of the California experience.

F2. Legal Educators’ Colloquium: ADR Advocacy Clinics — Teaching Law Students to Think and Act Like Lawyers in ADR

Deborah Masucci, Brooklyn, NY Jim Coben, St. Paul, MN Hal Abramson, Huntington, NY Barbara Black, White Plains, NY Romaine Gardner, New York, NY

The use of ADR in the business context has increased substantially; however, traditional law school teaching still focuses on advocacy in the court room setting. Five years ago, SEC Commissioner, Arthur Levitt, approached law schools and asked that they provide legal services to small investors who could not retain lawyers to help them recover losses from investments in the stock markets. Several law schools established arbitration clinics to teach students advocacy strategies and techniques in arbitration proceedings. Law schools are also offering mediation advocacy programs. The panel will discuss the framework of the programs, how they have evolved, their success and future plans.

F3. Legal Educators’ Colloquium: On Negotiation in Law, Society, Economics, and Everything Else

Chris Honeyman, Madison, WI Deborah M. Kolb, Boston, MA Carrie Menkel-Meadow, Washington, DC

27 Underlying a huge range of social activity, and pervading a great variety of supposedly “legal” activity, is negotiation. Research and teaching of negotiation have mushroomed in the past twenty years; by now, an understanding of negotiation's essentiality is supposedly inculcated in many types of undergraduate, graduate and professional education. Yet the ideas currently taught and researched are based on quite different materials, and significantly different doctrines, in the various disciplines and types of schools, without much effort to determine whether or why this should be so. At the same time, most researchers maintain that negotiation is a universal phenomenon whose theories and skills should cross all of these disciplines. Up till now, a coherent effort at assessing and highlighting those aspects of negotiation that really are universal has been lacking. The session will discuss how a unified canon of negotiation may be created.

F4. Legal Educators’ Colloquium: Resources for Adjuncts

Maureen Weston, Malibu, CA Dwight Golann, Boston, MA Kelly Browe Olson, Little Rock, AR Jane Juliano, Washington, DC Kathy Scanlon, New York, NY

Many ADR courses at law schools are taught by adjunct faculty members, i.e., part-time, non-tenure track faculty who are generally full-time ADR practitioners or lawyers. Many of us teaching as adjuncts are unaware of fertile source material useful in teaching, developing successful course plans and syllabi, and in evaluating students by law school standards. This session, as well as a new Subcommittee on the Teaching of ADR, aims to connect those teaching ADR courses as adjuncts with each other as well as with full-time ADR professors. Dialogue sessions, facilitated by both full-time ADR faculty as well as a number of adjunct faculty and practitioners, will focus on concerns and ideas for teaching ADR courses on an adjunct, part-time basis and for sharing information regarding teaching materials, course syllabi, role-plays, video-tapes, literature, and other teaching material that has proved pedagogically useful.

F5. The Effective Arbitration of Complex Financial and Accounting Matters

Kevin Kreb, Chicago, IL William E. Hartgering, Chicago, IL Barbara G. Werther, Washington, DC Harvey Kelly, New York, NY

A four-person panel comprised of an experienced arbitrator/mediator, a CPA with arbitration and mediation experience and two practicing attorneys who have represented clients in arbitration proceedings will examine the challenges in arbitrating complex financial and accounting matters. Discussion topics will include the use and effectiveness of expert witnesses in arbitration; challenges arbitrators face in evaluating, and advocates face in presenting, complex financial and accounting issues; unique characteristics associated with discovery; and resources available to arbitrators to enhance their understanding of financial and accounting matters.

F6. Judicial Mediation in Canada: When Judges Act as Mediators for the Benefit of Citizens and Lawyers

Helene De Kovachich, Montreal, Canada Louis Marquis, Sherbrooke, Canada Louise Otis, Montreal, Canada

Judicial mediation does recognize that the instruments for dispute resolution are readily available to judges when the remedy sought and the interest of the parties are such that a just solution may be reached without the need for a final judgment on the merits. Judicial mediation permits the parties to remain within the formal system in the event that the attempt at negotiations fails. Our tribunals have integrated the two tracks for resolution (adversarial system and mediation) into a harmonious and functional dispute resolution structure.

F7. Building and Expanding an Employment, Labor and Workplace ADR Practice

Michael Dickstein, San Francisco, CA Rita Callahan, Atlanta, GA Lawrence A. Huerta, San Diego, CA Susan Meredith, New Haven, CT

Hear experienced panelists discuss the varied and growing opportunities in workplace ADR. Explore how changing your ADR focus can expand your practice. Learn how successful practitioners use different processes and types of cases to build their workplace practices. Discuss opportunities for advanced practitioners to distinguish themselves in the marketplace.

F8. ADR and its Future in Resolving Historic Preservation Conflicts in America

Tanya L. K. Denckla, Charlottesville, VA Deborah M. Osborne, Washington, DC Elizabeth Merritt, Washington, DC Thomas Patrick Keefe, Jr., Spokane, WA John M. Fowler, Washington, DC

Build or preserve? This question is frequently debated across America’s historic and multicultural landscape. Can ADR be effective for resolving disputes about historic properties and cultural resources to which Indian tribes attach religious and cultural significance? Topics will include: how conflicts are typically resolved at the Federal project level under the National Historic Preservation Act; the challenges of ADR 28 involving Native American and non-Native interests; ADR models for public involvement and for the time honored government-to- government relationship; and mediated v. litigated preservation outcomes from across the nation.

F9. Ensuring Confidentiality Does Not Sabotage a Just Enforcement of Your Mediated Agreement

Peter Robinson, Malibu, CA Elizabeth Davidson, Washington, DC Arthur Pearlstein, Washington DC

Confidentiality typically precludes the examination of the formation of the mediated agreement---- which is usually integral to how contract law determines fairness in the enforcement of agreements. The fairness issue could be a defense to the agreement (fraud, mistake, duress), a question whether the agreement constitutes an enforceable agreement (definateness of essential terms, conditions precedent, agreements against public policy), or a question of interpretation. In most of these situations, standard contract law looks to, among other things, the circumstances at the formation of the agreement. For mediated agreements, confidentiality may frustrate a court's ability to fairly enforce the intended agreement.

This workshop will encourage thoughtful practitioners (mediators or advocates) to address this problem by three approaches:

1. Review the confidentiality statutes and case law in your jurisdiction. Does your state provide for an exception to confidentiality for enforcement purposes (like Connecticut) or not (like California).

2. Lobby for the enactment of the Uniform Mediation Act ----although it only provides a qualified and limited exception for enforcement purposes. The workshop will identify how you may want to encourage your state to strenghten this provision of the UMA when enacting.

3. Consider including language in all your mediated agreements which specifies that all parties waive mediation confidentiality if a judge deems it necessary for a fair determination of the enforcement of the agreement.

The workshop leader has identified more than 45 cases around the country where courts have experienced varying degrees of intensity regarding the piercing of confidentiality to apply contract law while enforcing mediated agreements. The case studies used in the workshop will be from actual cases.

F10. Self-Awareness & Conflict: The Enneagram as Catalyst

Thomas A. Baldwin, Cincinnati, OH Louise Phipps Senft, Baltimore, MD Lawrence H. Hoover, Jr., Bridgewater, VA

NOTE: This special session time from 10:45am – 2:00pm; break from 12:15-12:30pm Self-awareness, the ongoing attention to one's internal state, has a profound influence on the way we "do" conflict. The enneagram, a personality typology that identifies nine separate and distinct personality types, helps us understand the unconscious motivation from which we operate. The enneagram types are fixations of attention that drive our behavior and condition our experience. When we are aware of how our fixated attention operates and when we develop mindfulness practices we are able to focus on becoming more productive, proactive, and responsible in our professional practice and in our personal lives. Understanding other personality types contributes to our capacity to experience empathy and compassion both professionally and personally.

Participants will type themselves, discuss the attributes of their type and interact with each other and presenters on the relevance of type to conflict, dispute resolution and professional and personal relationships.

F11. Design and Implementation of Specialized Statutory Arbitration and Mediation Programs

Cynthia S. Mazur, Washington, DC Deborah Kant, Washington, DC Kathleen Scully-Hayes, Baltimore, MD

This conference session will examine specialized federal alternative dispute resolution programs (i.e., arbitration and mediation) mandated by statute. Unlike many of the ADR programs with which we are all familiar, these programs involve regulatory disputes, which lie at the core of the agencies' missions. These are programs where Congress has determined that certain types of specialized disputes (outside of the traditional areas of contract, tort, and workplace) should be resolved in the first instance by dispute resolution mechanisms.

Deborah Kant, Director of the Civil Division’s Alternative Dispute Resolution Office at the Department of Justice, Cindy Mazur, Director of the Alternative Dispute Resolution Office for the Federal Emergency Management Agency (FEMA) at the Department of Homeland Security, and Kathleen Scully-Hayes, the Director of the Office of Hearings and Appeals at the Center for Medicare and Medicaid Services at the Department of Health and Human Services (HHS) will lead the discussion on these specialized programs in the government today.

These programs include FEMA's arbitration programs for victims of the Los Alamos fire and disputes with National Flood Insurance contractors; the National Telecommunications and Information Administration's med/arb program for auctioning disputes over agencies' transfer of telecommunications spectrum to private companies; the Department of Housing and Urban Development's manufactured housing program for disputes between manufactures, retailers, and consumers regarding mobile homes; and HHS's provider reimbursement review

29 board's mediation program for medicare disputes with hospitals. In this highly interactive session, the presenters will focus on how to design and evaluate these programs, their pros and cons, how to make them successful, how to obtain neutrals, and more.

F12. Resolving a Current Crisis: What Can We Learn?

John Sturrock, Edinburgh, Scotland, UK Heather Allen, London, England, UK

As mediators, we strive for co-operation and collaborative problem-solving. This session will focus on a current crisis in the world. How would we handle this conflict if it could be brought to a process of facilitated discussion?

In this inter-active workshop, we aim to gain new insights into designing a process for conflict management when several parties, significant history, different cultures and strong emotions are involved.

Participants will be asked to assume the role of a member of the delegation of one of the interested parties in the crisis. They will be asked to identify the issues as that party sees them, using their knowledge, imagination and intuition. Participants will also be asked to discuss how they would approach a process of mediation or other facilitated discussion, if they wished to strive for a co-operative solution.

What process would we design? What factors must we take into account? What do we need to understand - and how would we find out? What surprises might there be? What are each party's interests and needs in this crisis? As advocates, how would we present our side's cause? How would we respond to other viewpoints?

The session will be facilitated in the form of a mini-mediation, punctuated by moderated discussion, in order to involve participants and to encourage reflective learning on the design of the process.

F13. U.S. Initiatives to Bring Commercial, Court and Labor-Management Mediation to Eastern and Central Europe

Eileen Barkas-Hoffman, Washington, DC Elena Nosyreva, Voronezh, Russia Neal Blacker, Los Angeles, CA Davor Babic, Zagreb, Croatia Mladen Vukmir, Zagreb, Croatia Frank Carr, Ellicott City, MD

One of the major problems facing Eastern European economies is the backlog of cases in the courts, particularly commercial courts, causing delays in adjudicating cases, in effectuating payment of debts, and, in general, in hampering the smooth working of the economy. Both foreign and domestic investors will be reluctant to inject badly needed capital into Eastern European countries without a reasonable guarantee that their inevitable disputes will be resolved in a fair, speedy and efficacious manner. Eastern European Countries are beginning to recognize that Commercial Dispute Resolution ("CDR" or alternative dispute resolution in the commercial context) is a practical method for resolving disputes quickly and enhancing judicial efficiency by speeding up cases, reducing (and preventing) case backlogs, and effectuating payment of debts.

In addition, the newly emerging Eastern European economies are also beginning to understand that economic revival depends upon having an effective means of resolving labor management disputes (Labor management Dispute Resolution or LMDR) in order to prevent unnecessary strikes, work stoppages and economic disruption. Developing economies which lack effective CDR and LMDR find it increasingly difficult to attract the requisite foreign and domestic capital jump-start economic growth. Thus, Effective CDR/LMDR requires an array of techniques, including arbitration, mediation and/or conciliation to resolve disputes whereby parties can settle, or help settle, disputes and controversies without the need to resort to courts and litigation. The US government through its Agency for International Development (USAID) has been at the forefront of funding and implementing ADR programs in Eastern Europe.

This program focuses on the challenges facing implementers of mediation programs in Central and Eastern Europe including cross-cultural issues to be faced in training mediators, problems to be dealt with in establishing mediation centers (and training Center administrators) and, as critically, challenges involved in convening cases and marketing mediation programs in countries which do not have a strong background in ADR.

F14. Enhancing Your Non-Verbal ADR Communication and Negotiation Skills

Julie L. Bronson, Los Angeles, CA Patrick Collard, Las Vegas, NV Gina Collura, Los Angeles, CA

A study by a major telecommunications company showed that more than 55% of communication between people is non-verbal. That means in an important business negotiation, a job interview or almost any other interaction, a majority of the information needed to know is not coming from what the other person is actually saying. This educational program is for Court neutrals, judges and staff interested in developing non-verbal ADR communication and negotiation skills. The program will address issues such as how to determine whether an impasse exists, the Do’s and Don’ts of non-verbal communication, and how to most effectively arrange your office space. It will include an open forum for questions and answers. The presentation will include video clips of a mediation and courtroom proceedings with an analysis of non-verbal communication signals.

30 F15. Forgiving in Mediation: What Role?

Dana Tait Sandlin, Charleston, SC J. Wescoat Sandlin, Charleston, SC Chris Boesch, Santa Barbara, CA Tina Patterson, Euless, TX Eric Galton, Austin, TX

Mediators, as facilitators of promises, may orchestrate a "dance" of forgiving which empowers and heals individuals in conflict by enabling new relationships to emerge from disputes. A working definition of forgiving, and ways to introduce forgiving in mediation will be presented.

This workshop will: A. Illustrate the usefulness of "forgiving" as a concept in mediation; B. Present a definition of forgiveness in civil mediation transcending cultural and religious differences; C. Demonstrate the application of Enright's Model of Forgiving Another to civil mediation.

The findings from a study of Southern California mediators on the use of forgiveness in practice will be considered. Enright's Process Model of Forgiving Another: cognitive, behavioral, and affective phases, are applied to the context of civil mediation, recognizing the mediator functions as a pragmatist encountering most clients for a brief period within the history of conflict. Participants will be asked to critique the definition and model.

GET SESSION PAPERS ON CD

Compilation of all electronically-submitted session papers, up to 100 papers, will be available for purchase. $30 for conference registrants and $50 for non-registered purchasers or post-conference purchasers. See the registration form on page 19. The CD will be completed by July 15, 2004.

31 Legal Educators’ Colloquium

Sponsored by the Association of American Law Schools, the ABA Section of Dispute Resolution, and the ABA Section of Legal Education and Admissions to the Bar

Saturday, April 17 9:00 am – 2:00 pm

Join law professors, adjuncts, and faculty from other disciplines to explore and discuss innovative ways to teach dispute resolution. The Colloquium runs concurrently with the Resolution and Resilience Conference and is free to all persons registered for the conference. This year the Colloquium will feature six breakout sessions with experienced teachers and researchers serving as the presenters. The Legal Educators’ Working Lunch, a separate ticketed event, provides a networking opportunity for Colloquium attendees and presenters.

Saturday, April 17 9:00 am – 10:30 am

E2. Legal Educators’ Colloquium: The Interface between Negotiation Theory and Mediation Practice Bobbi McAdoo, St. Paul, MN; Scott Peppet, Boulder, CO; Jacqueline Nolan-Haley, New York, NY

E3. Legal Educators’ Colloquium: Grading in Negotiation Courses Michael Moffitt, Eugene, OR; Charles Wilson, Columbus, OH; Joseph Harbaugh, Ft. Lauderdale, FL

E4. Legal Educators’ Colloquium: Lawyer as Problem Solver Exercises Lela Love, New York, NY

Saturday, April 17 10:45 am – 12:15 pm

F2. Legal Educators’ Colloquium: ADR Advocacy Clinics — Teaching Law Students to Think and Act Like Lawyers in ADR Deborah Masucci, Brooklyn, NY; Jim Coben St. Paul, MN; Hal Abramson, Huntington, NY; Jill Gross, White Plains, NY; Romaine Gardner, New York, NY

F3. Legal Educators’ Colloquium: On Negotiation in Law, Society, Economics, and Everything Else Chris Honeyman, Madison, WI; Deborah M. Kolb, Boston, MA; Carrie Menkel-Meadow, Washington, DC

F4. Legal Educators’ Colloquium: Resources for Adjuncts Maureen Weston, Malibu, CA; Dwight Golann, Boston, MA; Kelly Browe Olson, Little Rock, AR

12:30 pm - 2:00 pm Legal Educators’ Working Lunch

Please join us for this working lunch, an opportunity for small groups to gather, learn more about innovative new research and teaching techniques and network on a wide variety of dispute resolution topics.

Table Topic Facilitators Negotiation and Everything Else Andrea K. Schneider Grading Negotiation Michael Moffitt Lawyer as Problem-Solver Lela Love Aduncts Maureen Weston Negotiation Theory and Mediation Practice Scott Peppet ADR Advocacy Clinics John Lande

Legal Educators’ Colloquium Planning Committee: Andrea Schneider, Milwaukee, WI; John Lande, Columbia, MO; Suzanne Schmitz, Carbondale, IL Scott Peppet, Boulder, CO; Michael Moffit, Eugene, OR; Maureen Weston, Malibu, CA

32 Premier Sponsors

Gibson, Dunn & Crutcher LLP JAMS

Sponsors American Arbitration Association Martindale-Hubbell National Arbitration Forum Straus Institute of Dispute Resolution at Pepperdine University Sullivan University PricewaterhouseCoopers LLP Dispute Analysis and Investigations

Supporters Straus Institute for Dispute Resolution Bank of America Richard Chernick Contributors Bryan Cave LLP ADR Associates Cravath, Swaine & Moore LLP Boston Law Collaborative, LLC Complete Equity Markets Carroll Neesemann Fulbright & Jaworski, LLP Loeb & Loeb LLP Hughes Hubbard & Reed, LLP Mills Meyers Swartling Morgan & Finnegan, LLP Stradley Ronon Stevens & Young, LLP Skadden, Arps, Slate, Meagher & Flom Walter Stratton LLP

• NY County Lawyers Association Cooperating Organizations Arbitration and ADR Committee • American Arbitration Association • New York State Bar Association • American College of Civil Trial Mediators • New York State Council on Divorce Mediation • Association of Attorney-Mediators • NYU Conflict and Dispute Resolution Program • Association for Conflict Resolution • Paris Bar (L’Ordre des Avocats à la Cour de Paris) • Association of Black Women Lawyers of NJ • Pennsylvania Bar Association’s • Association of Family and Conciliation Courts Alternative Dispute Resolution Committee • The Association of the Bar of the City of New York • Texas Association of Mediators • Benjamin Cardozo School of Law’s Kukin Program for Conflict Resolution • Chartered Institute of Arbitrators • City University of New York Dispute Resolution Consortium • Connecticut Bar Association ABA Co-Sponsors • CPR Institute for Dispute Resolution Administrative Law and Regulatory Practice Section • Dispute Resolution Program at Antitrust Law Section John Jay College of Criminal Justice - CUNY Commission on Racial & Ethnic Diversity in the Profession • Family and Divorce Mediation Council of Greater New York General Practice, Solo and Small Firm Section  Greater Washington Area Chapter, Women Lawyers Government and Public Sector Lawyers Division Division Section of Family Law National Bar Association The Section of Individual Rights and Responsibilities • Institute for Transnational Arbitrations Judicial Division • International Academy of Mediators Section of Environment, Energy and Resources (SEER) • JAMS Section of Labor and Employment Law • Metropolitan Black Bar Association Section of State and Local Government Law • National Arbitration Forum Section of Public Utility, Communications and Transportation • National Association for Community Mediation Law • National Hispanic Bar Association Section of Real Property, Probate and Trust • National Native American Bar Association Section of Business Law New Jersey State Bar Association Section of Science and Technology Law • New York County Lawyers Association Senior Lawyers Division 33 Tort Trial and Insurance Practice Section Young Lawyers Division

TOURS/SPECIAL ATTRACTIONS

April in New York! Resolution and Resilience participants and their families will have the opportunity to tour exciting New York attractions including everything from shopping on Seventh Avenue to visiting Ellis Island. New York City has an unlimited variety of interesting, educational and fun attractions.

This year, we are giving our delegates the opportunity to customize their own tour of the “Big Apple.” We provide the web address and contact information for selected activities and you make the choice of what tours you want.

1. Broadway is the longest thoroughfare in Manhattan but when you hear “Broadway,” you usually think of the few blocks from 41st Street to 52nd. That’s the stretch known as “The Great White Way,” which has the heaviest concentration of live theater in the Americas. Visit www.broadway.com or www.bestofbroadway.com for information on the hottest shows on and off Broadway. Call 1-800-Broadway, (212) 239-6200 or (212) 307-4100. For discount tickets on site, you can check out TKTS ® Times Square Theatre Centre, located at 47th Street & Broadway, N.Y.C. TKTS® booths sell Broadway, Off-Broadway, Dance and Music events. Tickets are either half or three-quarter price (plus a $3.00 per ticket service charge) and are available on the day of performance. Payment is by cash or traveler’s check. All available tickets are posted on boards outside the ticket windows. Changes in availability can occur on an hourly basis as cooperating theatres supply or withdraw tickets, depending on box office demand. See www.tkts.com.

2. The New York Pass is the visitor’s passport to New York, including admission to over 40 top attractions in New York City, unique added values and discounts at an additional 20 shops, restaurants, and service providers, as well as public transportation on all New York City bus and subway lines. Please visit them at www.newyorkpass.com

3. Museums and Galleries: visit www.nycvisit.com for information on museums and galleries. For small tour groups of eight or more, contact www.viptoursny.com at 1-800-300-6203. Larger groups should contact www.phototrektours.com at (212) 460-2514.

4. Hush Tours: A 4-hour luxury bus tour of Harlem and the Bronx focused on the core elements of hip-hop music (rapping, dj-ing, graffiti art, break-dancing). Includes interactive demonstrations, all-you-can-eat soul food lunch, and photo ops.

5. Walkin’ Broadway™ is the newest attraction to hit Times Square and makes Broadway’s Theater District come alive for theater fans and international tourists. This self-guided audio tour delivers theater, history, architecture, music, humor and the true beat of New York City right in front of your eyes ... and in your ears! Cost: $10.00 per person Website: www.WalkinBroadway.com

6. Central Park Walking Tours: Eight different tours of Central Park, including regional tours of park regions as well as separate tours specializing in Trees, Sculpture, Bridges and Architecture. Costs begin as low as $10.00 per person in groups; $17.00 per person individually. Website: www.centralparkwalkingtours.com

7. Jazz Tours: Tours of vibrant hidden jazz haunts. NY jazz fans are treated to an assortment of outstanding choices nightly: From the upscale Village venues such as Blue Note, to the vintage Harlem night clubs such as Lenox Lounge. Website: www.bigapplejazz.com

8. Food Tours: Savory Sojourns. Your self-formed group can get a new and exciting “insider’s” view of New York City...Visit top gourmet restaurants and the most interesting, food-worthy neighborhoods from the Battery to the Boroughs. Hands on cooking and demonstrations. Unique behind-the-scenes looks at galleries, boutiques and historic neighborhoods round off the experience. Mouth-watering website: www.savorysojourns.com

Please note. The American Bar Association Section of Dispute Resolution is providing this tour information as a courtesy to our attendees and cannot guarantee the outcome. Please contact your tour agent directly for tour information, questions and requests for refunds. Visit our web site for periodic updates on the special attractions and for links to tour web sites: www.abanet.org/dispute/conference/6th/home.html

34 Join the American Bar Association Section of Dispute Resolution that prepares its members for the law profession of the future!

Take advantage of these benefits:  Publications - Dispute Resolution Magazine and Just Resolutions Newsletter, and discounts on books from the Section’s growing publications program.

 Practice Tips & Ethics Guidance - The Section provides critical advice in the fast changing world of ADR.

 CLE Sessions - The Section offers several CLE trainings a year on current topics of interest to neutrals and lawyers who represent clients in ADR proceedings. Members receive a registration discount equal to the cost of Section Membership.

 Internet Participation - You will share the latest dispute resolution information and resources on the Section’s Web Site and the Section-sponsored E-Mail Discussion Groups.

All these, for just $35 a year (for members of the ABA). Associate and Law Student Rates Also Available. Call 1-800-285-2221 to join today, or to place book orders! Or use the registration form on page 19 to join and obtain member discount on the conference fee. Call 202-662-1680 for more information about the Section of Dispute Resolution.

Books from the Section of Dispute Resolution (Additional discounts available at the conference)

Mediation Practice Guide: A Handbook for Resolving Business Disputes By Bennett G. Picker (Second Edition) (2003, 222 pages) PC: 4740056, $39, Section of Dispute Resolution members—$32

Dispute Resolution Ethics – A Comprehensive Guide Edited by Phyllis Bernard and Bryant Garth (2002, 520 pages) PC: 4740055, $49.95, Section of Dispute Resolution members—$39.95

Mediation: A Path Back for the Lost Lawyer By John Van Winkle (2001, 140 pages) PC: 4740053 $35, Section of Dispute Resolution or Senior Lawyers Division members—$25

Arbitration Now: Opportunities for Fairness, Process Renewal and Invigoration Edited by Paul Haagen (1999, 274 pages) PC: 4740052, $45, Section of Dispute Resolution members—$35

ADR Personalities and Practice Tips Edited by James Alfini and Eric Galton (1998, 264 pages) PC: 4740051 $45, Section of Dispute Resolution members—$35

ACCOMMODATIONS / TRAVEL INFORMATION The Sheraton New York Hotel & Towers (www.starwood.com/sheraton) has a block of rooms held at the reduced rate of $189 (single/double) plus tax (13.25%) and a $2.00 occupancy tax for Conference attendees. The cut-off date for hotel reservations is March 29, 2004 at 5:00 PM (CST). Reservations received on or before the cut-off date will be honored at the ABA group rate. After the cut-off date, the hotel shall continue to accept reservations, at the ABA group rate, ONLY on a space-available basis. Call the Hotel directly at (212) 841-6450 or (800) 325-3535 and refer to the ABA Section of Dispute Resolution Sixth Annual Conference.

Take advantage of the ABA Special Travel Rates. Either you or your travel agent may call. Please refer to the following discount codes. American Airlines, Discount Code: 16666, (800-433-1790); Delta Airlines, 189419A, (800-241-6760); US Airways, 36632473, (877-874-7687). For airfare

35 discounts, call the ABA travel agent, Jennifer Slago at 312-988-5862 or email to [email protected]. Visit ABA Online Travel to reserve your tickets at http://wcp.getthere.net/abaonlinetravel. Our Tax ID# is 36-0723150

For additional information, call 202-662-1680, fax 202-662-1683 or send e-mail to mailto:[email protected].

REGISTRATION FORM For Internal Use Only: Resolution and Resilience in New York (ABA Section of Dispute Resolution’s 6th Annual Conference) April 15-17, 2004 Sheraton Hotel & Towers of NY, 811 Seventh Ave., NYC (800-325-3535, 212-581-1000) web Name: Title:

Organization:

Address:

City/State(Province)/Zip:

Telephone Number: Facsimile: E-Mail Address:

REGISTRATION FEES Early Bird Pre-Registration On Site Reg. Your Choice Main Conference Registration (Closed) (By 3/29/04) (After 3/29/04) Regular Registration $385 $425 $

Government Employees, Judges, Community Mediators $340 $375 $

ABA-DR Section Member (ABA ID #: ) $300 $330 $ Registration & DR Section Membership for ABA Member $330 $365 $ Includes $35 to join the DR Section – for current ABA members only. To join the ABA & DR Section, contact 800-285-2221 to obtain an ABA ID # and get qualified to receive the Section Member Rate. Registration & ABA/DR Section Associate Membership $470 $520 $ Includes $175 to join the ABA and the DR Section as an Associate. Conference Faculty $295 $325 $

Full-Time Law or Graduate Students (Student ID Required) $ 75 $ 85 $

Pre-Conference Skills Session Registration (Limited ticket event, see pages 4-5) Registration opens 4:00 pm on Wed., 4/14/04. Skills Session – if NOT registered for the conference $115 $125 $ Skills Session – if registered for the conference $ 95 $105 $ Skills Session – Full -Time Law or Graduate Students $ 45 $ 50 $ Please indicate your pre-conference skills workshop preference by number in each time slot. 8:30 am - 10:15 am Session 1st choice ______2nd choice ______3rd choice ______10:30 am - 12 noon Session 1st choice ______2nd choice ______3rd choice ______Seating is limited. Tickets will be issued subject to participant limits in each session. See pages 4-5 for numbers and descriptions. Legal Educators’ Colloquium Registration (See page 15) Free, if registered for the conference $ 0 $ If not registered for the conference $ 75 $ Students - if not registered for the conference $ 15 $ Legal Educators’ Luncheon (Limited ticket event) $ 30 $ Court ADR Mini-Conference Registration (Limited ticket event, see page 7) Registration opens 4:00 pm on Wed., 4/14/04. $ 50 $ Forum on Expanding Opportunities for Minorities & Women in DR (Limited ticket event, see page 6) Registration opens 4:00 pm on 4/14/04 $ 40 $ CD-ROM of Conference Session Papers (check here __ for Mac version) For registered conference attendees $ 30 $ For non-registered purchasers or post-conference purchasers $ 50 $ PAYMENT INFORMATION TOTAL DUE $ ______Enclosed is check payable to the ABA-DR, check # ______. Pay with __American Express __VISA __MasterCard: Credit Card Number: Expiration Date:

36 Cardholder’s Name: Signature:

Please return this form to: ABA Section of Dispute Resolution, 740 15th St. NW, Washington D.C., 20005 or Fax to: 202-662-1683 For more information, call 202-662-1680. Visit www.abanet.org/dispute for conference updates and schedule. CANCELLATION POLICY: Refunds, less an administrative fee of $50, will be given for cancellations received in writing by 3/5/04. Cancellations received after that date will not be refunded; however substitutions may be designated with notification to our office. We are not responsible for charges arising from cancellations or changes. Requests for refund must be submitted in writing. SPECIAL NEEDS: If you have special needs that will affect your attendance at the conference, please check here ___ and attach a statement describing your needs. We will confirm your arrangements in writing.

37