1. CPR INSTITUTE FOR DISPUTE RESOLUTION VOL. 19 NO. 5 MAY 2001
DIGEST
AlternativesTO THE HIGH COSTS OF LITIGATION
NEUTRALS’
SKILLS
PRACTICE
TOOLS
(continued on page 148)
BY DAVID I. BRISTOW
& ZIMBA MOORE
The players at the casino gaming table bring
to mind those that appear at a
mediation room. There are the
rich and urbane, the wild-eyed,
the loud-speaking, the secretive
silent players who make notes of
every throw of the dice, and the
backers who do not play and
have appointed others to play for
them. Different languages are
spoken, many dialects are heard
and a wide range of morals is usually found
among the players. These factors pose a diffi-
cult job to the boxman who oversees the gam-
bling table, as well as the mediator.
All good boxmen and all good mediators
must possess the following attributes:
Preparing for Mediation in a
Multiparty Construction Dispute
• Respect: Respect is essential. If it is lost, the
game can degenerate into a chaotic state.The
mediator’s impartiality and reputation must
not be diminished by his or her
actions at any time in the me-
diation process. So too with the
boxman.
• Concentration: The boxman
must keep total concentration
at every moment of the game
and know where each player at
the table stands at all times. He
or she must make split-second
decisions which may decide the entire direc-
tion of the game and although outwardly
appearing detached, the boxman must be
constantly vigilant. So too the mediator.
BY PAUL R. FISHER
Though there are many basic axioms required
for a successful mediation, if an essential in-
gredient is forgotten, it can cause an impasse.
This is a summary of the most
critical elements necessary to
avoid an impasse. Even though
attorneys who have considerable
mediation experience may be
aware of the majority of these
elements, focusing on the
myriad of subtleties of the other
elements discussed in this article
will increase the likelihood of
mediation success.
Choose the Right Mediator: Though some
mediators believe they can mediate any dis-
Mediation Advocacy: Axioms
For Avoiding An Impasse
pute, most experienced counsel prefer a me-
diator who is eminently qualified in the
dispute’s substantive issues.
Consider the mediator with the right tem-
perament and mediation style,
one who can deal with the per-
sonalities unique to the dispute.
For example, the mediator
likely would need to be adept
in dealing with highly charged,
emotional issues such as those
arising in wrongful termination
and harassment disputes. Or a
mediator who is not intimi-
dated by combative parties or attorneys.
Consider a mediator whom all the attor-
(continued on page 138)
NEUTRALS’ SKILLS
Construction contracts, points out
David I. Bristow and Zimba Moore
of Toronto’s Fraser Milner Casgrain,
may be viewed as one long negotia-
tion. The authors provide guidance
for setting out the rules of a con-
struction mediation session before-
hand via a preliminary agreement.
They provide details featuring ADR
principles adaptable to any setting,
as well as a model preliminary
agreement. ........................ Page 135
PRACTICE TOOLS
Los Angeles neutral Paul R. Fisher
discusses the critical elements to
focus upon before, during and even
after a mediation session to avoid an
impasse.............................. Page 135
CPR NEWS
Featured are remarks by James F.
Henry, CPR’s founder and recently
retired president, that were made at
last month’s U.S. Supreme Court
ceremony honoring him, which was
held by the American Bar
Association’s Section of Dispute
Resolution......................... Page 136
CONTRACTS
Blank Rome Tenzer Greenblatt
partner Terry L. Trantina, of New
York City, provides a checklist for
drafting ADR clauses that fulfill
clients’ business needs. ..... Page 137
ADR BRIEF
Details on Vermont’s May 2001
declaration of Conflict Resolution
Month. .............................. Page 142
DEPARTMENTS
CPR News ........................ Page 136
ADR Briefs ....................... Page 142
Cartoon by Chase ............. Page 142
Online Info ... Pages 143, 149 & 150
Index Info ......................... Page 144
3. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 137CPR INSTITUTE FOR DISPUTE RESOLUTION
(continued on page 145)
By Terry L. Trantina
Most commercial clients aren’t happy with
the prospect of taking a dispute to court, par-
ticularly if they have been there before. It’s
extremely wasteful of their time, energy and
money.The litigation process is very un-busi-
nesslike. It exposes business
problems to the public and al-
lows strangers and even com-
petitorstorummagethroughthe
client’s file drawers. It is layered
with time-consuming processes
and unfathomable, unjustifiable
and repeated delays. The out-
comeisunpredictableanddepen-
dent on principles of general
applicationandpeoplethatarenotaccustomed
to the client’s particular business issues.
Perhaps the most irritating aspect of the
litigation process is that business men and
women must give up control to others, e.g.,
their own lawyers, the opposing parties’ coun-
sel, court clerks, judges and nameless mem-
bers of juries, to move the process forward
and to produce results affecting their busi-
nesses, perhaps in decisive ways. The process
appears to be simply spinning out of control,
chewing up their resources yet has no fore-
seeable outcome that will make all the aggra-
vation and effort worthwhile.
Offer them alternative dispute resolution.
That offer will initially, more likely than not,
simply add one more irritating unknown to
this list of barriers to the resolution of their
business problems. It is, however, a viable
How to Design ADR Clauses that Satisfy
Clients’ Needs and Minimize Litigation Risk
The author is a partner in New York’s Blank Rome
Tenzer Greenblatt LLP. The checklist in this article
has been adapted from a version that originally ap-
peared in the March/April 1999 issue of Business
Law Today.
solution to what they dislike about resolving
their business disputes that you should ask
them to consider. The best time to do it is
before disputes arise because post-dispute one
party always seems to place greater value on
the leverage gained by imposing on the other
party an undesirable litigation
process.
Too often attorneys take
ADR for granted or as essen-
tially “lawless” and begin by of-
fering clients a boilerplate ADR
clause or a clause taken from
another client’s contract. The
dispute resolution process that
can be imposed on a client by
using a boilerplate clause may permanently
sour them on ADR when they experience just
as many—or worse—problems as they did
in the courts. In fact, they may be subjected
to the worst of both worlds and end up spend-
ing inordinate time both in court and in ADR
and unhappy with the lawyer that suggested
ADR.
ADR is not “lawless” and is certainly not
“issueless.” Thankfully, however, ADR law is
neither broad nor impenetrable and the is-
sues are both identifiable and manageable.
ADR law is straightforward. Simply put, the
federal law, the U.S. Arbitration Act (referred
to as the Federal Arbitration Act or the FAA),
9 U.S.C. 1-16, is applicable to all transac-
tions “involving interstate commerce,” a stan-
dard that reaches the limits of the
Constitution’s Commerce Clause power and,
therefore, most contracts.
As interpreted by the U.S. Supreme Court,
the FAA allows the drafter of a pre-dispute
arbitration provision to dictate every aspect
of the dispute resolution process and have that
provision enforced by both state and federal
courts precisely as written. Furthermore, the
FAA preempts any state law that would in-
terfere with that enforcement as long as the
provision is not unconscionable, i.e., the pro-
cess is substantively and procedurally fair.
Fundamental fairness, does not require a guar-
antee of a jury, a publicly subsidized decision
judge, class actions, the rules of evidence,
boundless discovery or an appeal. Fundamen-
tal fairness is, again, a simple matter.The pro-
cess simply cannot give advantage to one party
or deprive a party of a timely, merit-based
inquiry and decision by a neutral third party
and the availability of the remedies available
at law or in equity. The requirement of fun-
damental fairness does not restrict process
design, only abuse.
UNDERSTAND BUSINESS NEEDS
How do you achieve client satisfying results
through ADR? First, take some time to un-
derstand the client’s business needs; i.e., the
nature of likely or significant, but less likely
disputes; the nature of the business relation-
ships or environments that may cause these
disputes; what the client dislikes most about
resolving disputes in court; and what, in af-
firmative terms, will be required in a process
or the background of the neutral to produce
a merits-based, cost-effective and timely reso-
lution.
Second, become familiar with the state and
federal case law that have identified flaws in
other ADR clauses. The basic principle flow-
ing through all of the decisions interpreting
ADR provisions subject to the FAA or indi-
vidual state arbitration acts is that ADR provi-
sions are to be given effect and enforced
preciselyasthepartiesexpresslyprovideintheir
arbitration provision. There are a number of
decisions where the court laments that “if the
clause had only expressly provided for it, the
court would have had no choice but to en-
forceit,”butbecausetheADRclausewasvague
or silent on the issue, the court could not grant
the party’s post-dispute request for relief from
the effects of the boilerplate arbitration clause.
Third, don’t confidently copy another
ADR clause that was custom-designed for
another client. That actually may be worse
than using the boilerplate clause or having
no clause at all.
CONTRACTS
ONLINE CLAUSES
This article is expected to be one of the subjects under
discussion in CPR’s ADR 2001 online seminar beginning May 21
and running for a week at www.cpradr.org. The topic is
transactional ADR. For full details, see page 143 of this issue.
4. 138 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
ABOUT THE CPR INSTITUTE FOR DISPUTE RESOLUTION
WOULD YOU LIKE FURTHER INFORMATION ABOUT CPR?
See our Web site at www.cpradr.org or complete the following
form:
Name:
Organization:
Title:
Address:
Telephone:
ORGANIZED BY PROMINENT CORPORATE COUNSEL,
THE CPR INSTITUTE FOR DISPUTE RESOLUTION has
become a leader in developing uses of private alternatives to
the costly litigation confronting major corporations and pub-
lic entities. The membership of CPR, a nonprofit organiza-
tion, consists of more than 500 large companies, leading U.S.
law firms, academics and judges. See “Membership” at our
Web site, www.cpradr.org.
TO ITS MEMBERS, CPR OFFERS EXTENSIVE BENEFITS
AND SERVICES, including research access to CPR’s unique
ADR database; training and counseling; a complete library of
ADR practice tools and model procedures; and semi-annual
conferences.
RETURN TO: Membership and Administration, CPR Institute for Dis-
pute Resolution, 366 Madison Avenue, New York, NY 10017. Tele-
phone: (212) 949-6490. Fax: (212) 949-8859. Internet: info@cpradr.org
(continued from front page)
Construction
• Knowing the game: The boxman must know
the game most thoroughly and should be fa-
miliar with any and every combination of
problems that might arise that would impair
the games smooth flow. The mediator should
also know the “game” of construction.
• Knowing the players:The casino usually knows
the high rollers and the undesirable players. If
they are not known when the game begins the
boxman sizes them up as play proceeds and
anticipates the way they will play. So too the
mediator.
•Whentointervene:Watchaboxmancloselyand
you will see that he or she will not intervene
unlessitisabsolutelynecessary.Theplayersmust
believe that it is their game and no referee is go-
ing to constantly blow his or her whistle to in-
terrupt.When an interruption comes it must be
an important one, and if there are too many in-
terruptions the players will drift to another table
and a different game. So too with the mediator,
the parties will drift to arbitration or court.
•Patience:Theboxmanmustpossessamandarin’s
patience, listening closely to the pleas and com-
ments of the players however wrong or outra-
geous, then make a decision which will keep the
game moving smoothly. So too the mediator.
Listening is the most important skill for the
mediator and the boxman.
THE PLAYERS
The construction industry is made up of gam-
blers. They gamble on weather, strikes, financ-
ing and on the competence and ability of all
the other members of the construction group.
They gamble on the construction project, and
in the boardrooms. One author suggests that
construction contracts are in fact one long ne-
gotiation from beginning to end. These gam-
blers, however, are the people that built
everything meaningful despite the enormous
risks. They come to mediation with this back-
ground, and the mediator should recognize the
factthatpeopleinthisindustryareabreedapart.
THE GAME
There are a number of root causes of construc-
tion disputes and the mediator must be skilled
in recognizing and dealing with them. They
include: unfair/unclear risk allocation; unre-
alistic time/cost/quality targets by clients; un-
controllable external events; adversarial
industry culture; inappropriate contract forms;
unrealistic tender pricing; clients’ lack of in-
formation or decisiveness.
There are also a number of proximate causes
of construction disputes, such as: poor commu-
nications; personality clashes; vested interests;
variations or changes by client; exaggerated
claims; errors in estimating; inadequate contract
administration; inadequate contract documen-
tation or inadequate design information; inac-
curatedesigninformationortenderinformation;
and inappropriate payment modalities.
The mediator’s job involves recognizing at
an early stage which, if any, of the above factors
applies to the dispute on the table. The system
of preparing for the multiparty mediation is
designed to help the mediator to identify those
factors early in the game in order to accelerate
the process toward resolution.
THE FIRST PRELIMINARY MEETING
Assuming that all parties have agreed to a
mediation, then a preliminary meeting should
be called by the mediator. It usually only in-
volves counsel. Counsel should be requested
to prepare a diagram showing all of the parties
involved in the construction project and to
send a copy to the mediator and to all parties
involved in the mediation long before the date
of the mediation.
A draft form of mediation agreement
should be tabled at this first meeting. See the
sidebar containing the draft mediation agree-
ment on page 140.
The procedure of the mediation hearing it-
selfshouldbereviewed,especiallyifsomeparties
represented have never previously been involved
inamediation.Theorderofpresentationsshould
bediscussedandagreeduponaswellasthelength
of time for each party’s presentation. The hours
ineachdayofthemediationshouldbediscussed
andincludedinthemediationagreement.Coun-
sel should be advised that the hours should be
flexibleandthatduringthedaysfixedtheyshould
be prepared to work long hours even into the
evenings and weekends.
David I. Bristow, Q.C., is counsel to the national Cana-
dian law firm Fraser Milner Casgrain LLP (www.fmc-
law.com) and is based in Toronto. He is a panel member
of the American Arbitration Association, the CPR In-
stitute for Dispute Resolution, the International Cham-
ber of Commerce and, in Canada, ADR Chambers and
the Private Court. Zimba Moore is a barrister of En-
gland and Wales, currently working in the Toronto of-
fice of Fraser Milner as Fox Scholar of the Middle Temple
Inn of Court. The article has been adapted from an
address delivered to a Continuing Legal Education fo-
rum of the Canadian Bar Association in Ontario in Feb-
ruary 2001. The forum focused on the subject of ADR
as an “all-terrain vehicle” suited to the resolution of
disputes in diverse areas of legal practice.
5. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 139CPR INSTITUTE FOR DISPUTE RESOLUTION
(continued on following page)
In some cases, counsel may wish to agree
that liability alone be discussed in one part of
the hearing and quantum in another part. Any
agreement on this will be recorded in the me-
diation agreement.
Once the procedural format is agreed upon,
it should be reduced to a written agreement and
adhered to as strictly as possible. It may be diffi-
cult to anticipate and agree to a format for the
mediation beyond the initial presentations.The
mediator should work with each counsel to pro-
duce realistic schedules in light of each counsel’s
intended approach.The statement of procedure
should form part of the mediation agreement.
Seeclause2.4inthemediationagreementsidebar.
The costs, legal and otherwise, if the entire
problem had to go to trial or arbitration should
be discussed at this first preliminary meeting.
The mediator should ask each counsel to esti-
mate how long a trial or arbitration would take
and what fees would be incurred, including
counsel’s fees, experts’ fees and the loss of op-
portunity cost incurred while the client is tied
up in the court or arbitration process. It is wise
to put the clients’ hourly time equal to or
greater than the lawyers’.
In most cases at these early stages many cli-
ents and their lawyers do not know the enor-
mity of the costs involved unless it is put down
inawrittenform.Eachcounselshouldbeasked
to undertake to deliver a copy of their estimate
to their client. This is only a request but coun-
sel usually agree. Ask the parties to exchange
their own drafts and see if they can come up
with a consensual draft. This is a powerful in-
strumentforresolutionbeforemediationstarts.
It is essential in all mediations, and most
important in multiparty actions, that the
mediator’s fees are set out clearly in the me-
diation agreement, along with how and when
the parties’ contributions to those fees will be
made. See clause 10 in the mediation agree-
ment sidebar. A retainer should be paid in
advance of the mediator’s work and further
monies received to keep the mediator’s fees
current at all times. It may be appropriate to
appoint one counsel to collect all of the funds
to be forwarded to the mediator.
Apartywhodoesnotcontributeitssharecan
sourmediationveryquickly.IanScott,beforehe
became Ontario Attorney General, in his first
arbitration was unable to get payment of his fees
from one of the parties. His decision reserved,
he phoned the recalcitrant party requesting pay-
ment.The reply came, “you’ll get paid when the
judgment is rendered in my favor.”
It is important to anticipate the number
of parties that will attend each pre-mediation
meeting. A sufficient number of break-out
rooms for all of the parties will need to be
provided; in a large dispute this may amount
to a substantial number. The cost and loca-
tion of the mediation facilities should there-
fore be ascertained and arrangements made
by the parties to pay these costs. See clause
10 in the mediation agreement sidebar.
It must be made clear at the outset of the
mediation process that the parties attending
the mediation hearing have authority to settle,
or at least that those who have authority can
be reached by phone at any time during the
mediation, day or night. See clause 2.7 in the
mediation agreement sidebar.
Finally the mediation date or dates should
be fixed. See clause 11 in the mediation agree-
ment sidebar. In many cases, more than one
pre-mediationmeetingisnecessaryandthedate
or dates for potential further meetings should
be discussed at the first preliminary meeting. It
is important at this early stage to fix dates even
if those dates appear to be some time off, or
even if further meetings may not be needed.
If there is a general agreement as to the
formandcontentofthemediationagreement,
the mediator can prepare a final draft and send
it to all parties for execution. The mediation
should not start until all parties have executed
the agreement and payment of the mediator’s
agreed remuneration has been received.
PREPARATION AFTER
AGREEMENT IS EXECUTED
Counsel will have been encouraged at the first
meeting to prepare an issues chart showing
each item claimed, with the chart divided into
liability and quantum. This chart will follow
on from the parties’ agreement as to the es-
sential nature of the dispute, a description of
which should have been included in the me-
diation agreement. See clause 3 in the media-
tion agreement sidebar. The chart should
contain a column for each party to complete
with a short statement as to their position.
All parties also should prepare a mediation
briefoftheirposition,preferablyalongthelines
of the issues chart. Agreement will be neces-
sary as to which documents need be produced
and when. Dates for exchange of documents
and experts’ reports should be set. Only the
mostimportantdocumentsforeachparty’scase
should be produced. The mediator usually is
looking for each party’s “best shots” and the
mediation can get bogged down with nones-
sential or even trivial matters if the mediator
does not keep a firm hand on the issues and
the documentation. If the parties can agree on
a joint documents brief then this should be
produced.
Any expert’s reports should be exchanged
and filed with the parties’ mediation briefs. In
many construction cases, these reports really
go to the heart of the dispute. If all reports are
ready then counsel might agree at some point
in the mediation process to involve only the
experts and the mediator. Sometimes a sepa-
rate mediator might be brought in to deal with
the expert’s opinions. If the mediator can get
the experts to agree, either with respect to
matters of liability or quantum, this could go
a long way to resolving the matter.
In most complex construction cases, the
documents are put on a computer. The par-
ties should be canvassed as to what computer
systems they are using and if they are com-
patible with the systems of other counsel. If
the mediator has a retrieval system and it is
compatible with the parties’ systems, then it
may be possible at the mediation itself to re-
trieve documents directly from the system.
As can be seen, each stage of the media-
tion process may lead to difficulties that, in a
complex multiparty dispute, may necessitate
a further pre-mediation conference. Further
meetings of course can be held by teleconfer-
ence or video conference. In many cases, cli-
ents and their counsel are in different cities
or even different countries, so it may be more
cost-efficient and practicable to conduct pre-
mediation conferences through an electronic
medium. That said, it is recommended that,
at an early stage, as many counsel as possible
meet face to face.Teleconferences should cer-
tainly not be encouraged until all counsel have
met in this way. This will give all parties an
opportunity to size one another up.
Onceaninitialface-to-facemeetinghasbeen
held, video conferences are preferable to tele-
conferences.Counselwhoarenotlocatedinthe
areashouldbecanvassedastowhethertheirfirms
or their cities have compatible video hook-ups.
Teleconferencing or video conferencing is not
recommended for the mediation itself.
Even at the pre-mediation conferences, the
mediator should attempt to have the insurer’s
counsel, the bonding company’s counsel and
the guarantor’s counsel in attendance. If the
mediator can find out policy limits and
whether there is any defense the insurer or
bonding company might be raising which
would deny coverage to the client, it will be
important in the mediation.
Bonding companies always have a master
surety agreement along with the bond. They
are supposed to have indemnitors involved
who can pay any loss the bonding company
may face.This is not always the case. A bond-
6. 140 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
ing company with no solvent indemnitors will
act differently than if fully covered. It is help-
ful to find this out, and the mediator should
attempt to do so, just as the boxman assesses
the depth of the players’ pockets.
If there are joint venturers, it is important
to find out if there is a conflict between them.
Such a situation can prevent or jeopardize any
settlement. If the mediator identifies the con-
flict he or she either can attempt to resolve it
or work a way around it. For example, a stand-
still agreement might be negotiated by the
mediator before the actual mediation starts
whichwouldallowthejointventurerstospeak
with a unified voice at the mediation, reserv-
ing to themselves the resolution of disputes
internal to the group.
Sometimes, it is advantageous to appoint
a spokesman for a particular group. For ex-
ample, a spokesman could be appointed for
lien claimants to review the quantum and
timeliness of the claims. A committee might
be appointed, as is usually done in construc-
tion lien actions, and probably would have
to be done in any event if an action follows.
Similarly, a spokesman could be appointed
to represent the group of trust claimants.
The mediator should find out who is sol-
vent and who is not. The level of solvency
could include cash or any other asset the party
might have that could be put into the settle-
ment mix. Product might be put up in lieu of
cash, shares exchanged, or any number of
permutations or combinations. Future busi-
ness might be important as well as the politi-
cal aspects of a particular situation.
• • •
As can be seen, the preparation for a complex
multiparty mediation is in many ways simi-
lar to the preparation for an arbitration. Prepa-
ration is essential for all parties as well as the
mediator. The mediator will find that the
parties will almost invariably need herding
and must therefore think of herself or him-
self as a cheerful sheepdog, constantly on the
move, moving the flock slowly until they are
all in the mediation barn.
The mediator’s job is to shape a game for
the players that will attract their interest and
their enthusiasm and that will be clear to
them. At the end of the preliminaries, the
mediator, and hopefully the parties, will be
ready for the game to begin. You may find in
a carefully prepared mediation that the dis-
pute is well on its way to resolution before
the actual mediation commences.
SAMPLE FORM AGREEMENT
For construction disputes, a first preliminary meeting between parties and the
mediator can set the ground rules for potentially complex negotiations. This sample
mediation agreement memorializes the ADR game plan. The mediation shouldn’t
begin until the parties have signed the agreement. Please note that this form is
intended as a rough guide only. The parties, with the mediator’s assistance, will
create their own mediation agreement.
–By David I. Bristow and Zimba Moore
MEDIATION AGREEMENT
THIS AGREEMENT made this _________ day of ________, 2001
B E T W E E N:
_____________ Hereinafter referred to as (the “Contractor”) OF THE FIRST PART
- and -
_____________
Hereinafter referred to as (the “Owner”) OF THE SECOND PART - and -
_____________, counsel to the Contractor OF THE THIRD PART - and -
_____________, counsel to the Owner OF THE FOURTH PART.
WHEREAS:
a. Pursuant to a contract dated ______ (the “Contract”), the Contractor agreed to
construct a ______ for the Owner as more particularly described in the Contract;
b. A dispute and difference (the “Dispute”) has arisen and is still subsisting between
the parties as herein provided;
c. The Contract provides in Part ______ for a dispute resolution mechanism;
d. Pursuant to Part ______ of the Contract, the parties have agreed to refer the entire
Dispute to Mediation (the “Mediation”);
e. The parties have appointed ______ to mediate the Dispute (the “Mediator”).
NOW THEREFORE IN CONSIDERATION of the sum of ONE ($1.00) DOLLAR now paid by
each of the parties to the other, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby cov-
enant and agree as follows:
1.00 Purpose of the Mediation
1.1. The parties agree that mediation is assisted negotiation during which the parties
work together in an effort to achieve a fair and mutually agreeable settlement of their
dispute. In entering into this Agreement, the parties and their counsel affirm their
intention to work cooperatively and constructively toward attaining this objective.
2.00 Mediation Procedure
2.1 The Mediation shall take place ________ unless otherwise agreed upon by the
parties.
2.2 The parties agree that the procedure to be followed with respect to the mediation
including, without limitation, the procedure as to the provision to the Mediator, in
advance of the mediation, of documentation with respect to the Dispute and a sum-
mary of the position taken by each of the parties, shall be as determined by the
parties.
2.3 Notwithstanding section 2.2 of this Agreement, if agreement has not been reached
as to the procedure to be followed and the Mediator notified as to such procedure on
or before ________ , the Mediator shall stipulate the procedure to be followed by
notice to the parties.
2.4 The procedure, when settled either by the method stipulated in section 2.2 or 2.3,
shall be attached as Appendix A hereto and shall form part of this Agreement.
(continued from previous page)
Mediation Preparation
7. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 141CPR INSTITUTE FOR DISPUTE RESOLUTION
2.5 The parties acknowledge that the Mediator is at liberty
to meet with the parties jointly or separately and that the
Mediator is under no duty to confide in either of the parties
what the other has said, nor to confide in either of the par-
ties the position which the other has taken, or proposes to
take, with respect to a satisfactory resolution of all or any
part of the Dispute, or all or any part of the subject matter of
the Mediation.
2.6 The parties acknowledge that, notwithstanding section 2.5
and unless the Mediator has instructions to the contrary, the
Mediator may confide in either or both parties if in the Mediator’s
view the chance of the mediation being successful will thereby
be improved.
2.7 The parties agree that a representative of each party, with
authority to settle the Dispute, will attend throughout the
Mediation.
3.0 Description of Dispute
3.1 The parties agree to the Mediation process in order to
resolve a dispute between them, the essential facts of which
are as follows:
1. _______ 2 _______ 3. _______ 4. _______ 5. ________
4. Disclosure
4.1 The parties acknowledge that cooperation and good faith
are essential to the mediation process and as such, the parties
agree to disclose to each other and to the Mediator all infor-
mation which is relevant to the dispute.
5. Confidentiality
5.1 The parties and mediator agree to keep all information
exchanged in the Mediation confidential. Statements made or
information disclosed by a party shall not be divulged outside
the Mediation or used in any subsequent legal proceedings
unless all parties consent. This does not include any final settle-
ment agreed to in writing and signed by the parties. The par-
ties may agree in writing that this also will be confidential.
6. Prohibition of Mediator as a Witness
6.1 The parties agree that the Mediator shall not be called by
either party as a witness in any subsequent legal proceedings
between the parties.
7. Termination of Mediation
7.1 The parties acknowledge that the Mediation is a voluntary
form of negotiation, and as such, either party or the mediator
may terminate the process at any time, for any reason, with-
out reasonable notice.
8. Role of Mediator
8.1 The parties acknowledge and agree that the Mediator’s
role is to act as a neutral facilitator in the parties’ negotia-
tions and that the Mediator does not provide legal advice,
decide any issues between the parties, or make judgments
relating to the merits of the parties’ cases.
8.2 The parties also acknowledge that the Mediator shall dis-
close any conflict of interest with either party prior to enter-
ing into this agreement.
9. Role of Counsel
9.1 The parties agree that if the parties retain counsel for the
Mediation, their role is to ensure that their clients’ interests
are satisfied, and that any settlement agreement is legal and
enforceable. As such, the parties’ counsel undertake to pre-
pare their clients for the mediation process and to review this
Agreement with them, as well as to prepare any settlement
agreement which may be reached.
10. Mediation Fees
10.1 The parties agree to share the costs of this mediation equally.
11. Date, Time and Location of Mediation
11.1 Subject to change, the Mediation shall take place at ___.
11.2 The Mediation hearing shall, unless otherwise agreed,
commence at ___ a.m. and continue until ___ p.m., recom-
mencing at ___ p.m. and running until ___ p.m.
11.3 Subsequent sessions, if deemed necessary by the parties,
shall be held at times agreeable to the parties and the media-
tor, and shall be subject to all provisions of this Agreement.
12. Indemnity
12.1 The parties agree that they will indemnify and save harm-
less the Mediator from all costs or claims which they may now
have, or might have in the future, respecting or arising from
this Mediation.
13. Liability of Mediator
13.1 The Mediator shall not be held liable to either of the par-
ties for any act or omission arising, directly or indirectly, from
or in connection with the services to be provided by the Media-
tor in connection with this Mediation, unless the Mediator is
shown, with regard to such act or omission, to have acted in
bad faith.
13.2 The parties acknowledge that the Mediator is not, in acting
as a mediator, providing legal services and is not expected to,
and will not, act as a legal adviser to you in connection with the
Dispute and that any opinion which the Mediator may offer in
respect of the merits of any position which either of the parties
takes in respect of the Dispute is in the context of endeavouring
to mediate the Dispute and may not be relied upon for any other
purpose whatsoever.
14. Alteration of Mediation Agreement
14.1 The parties agree that this Agreement may not be altered
other than in writing and with the written consent of all the
parties and the Mediator.
15. Cancellation
15.1 In the event that the Dispute is cancelled or settled within
___ calendar days prior to commencement of the Mediation, the
Mediator’s fees will be forfeited. If the Dispute is cancelled prior to
the ___ calendar days before the commencement of the Mediation,
the Mediator’s fees will be applied on account of any fees and
disbursements incurred prior to the cancellation date and any ex-
cess of the Mediator’s fees will be returned to the parties.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement.
[SIGNATURE LINES OMITTED]
SAMPLE FORM AGREEMENT (continued)
8. 142 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
ADR BRIEF • ADR BRIEF • ADR BRIEF
CartoonbyJohnChase
VERMONT HOLDS ITS
SECOND ADR MONTH
Right now, it’s all about ADR in Vermont.
May 2001 marks Vermont’s second “Con-
flict Resolution Month,” apparently making
the Green Mountain state the nation’s first in
memorializing a focus on alternative paths to
litigation.
Organizers say they hope that Conflict
Resolution Month becomes an annual event.
Democratic Gov. Howard Dean signed a
proclamation on March 26 making the des-
ignation. Dean’s statement said that “the
people of Vermont should enjoy communi-
ties that reflect and enhance the values of a
just and civil society,” and “the existence of
such communities is closely linked to the
availability of alternative conflict resolution
resources.”
Conflict Resolution Month has eight
goals: Create a preference for nonjudicial con-
flict resolution; educate and train more people
in the benefits and use of conflict resolution;
increase the use of nonjudicial conflict reso-
lution; increase cooperation and understand-
ing in communities; reduce litigation; support
existing conflict resolution programs and start
new ones; increase collaboration among ex-
isting conflict resolution organizers and pro-
viders, and increase understanding and the
use of problem-solving negotiation.
And while Vermont business ADR is in
its nascent stages, organizers have strongly
pushed to get the business community in-
volved, says Middlebury mediator Michael
Palmer, who as chair of the Vermont Bar As-
sociation ADR Committee serves as Conflict
Resolution Month coordinator. “We’re find-
ing out we have to do it step by step,” he says.
“People are receptive if they know about it.”
For example, on May 17 in the state capi-
tol, Montpelier, the event organizers have en-
listed for two discussions an officer of the
Policy Consensus Initiative, a national orga-
nization that monitors state ADR efforts.The
topics to be covered at the statehouse semi-
nars include “How the Business Community
CanWin with Better Conflict Management.”
Earlier this month, the American Arbitra-
tion Association hosted a Burlington session
titled “ADR Can Control Your Litigation
Costs; Here’s How!”
Other sessions involve business-oriented
topics such as negotiating with a hard bar-
gainer, workplace conflict management,
and demonstrations of various ADR tech-
niques.
The month-long ADR observation ends
on June 1 at theVermont Law School in South
Royalton with the “Second Annual Vermont
ADR Conference: Building Stronger Com-
munitiesThrough Alternative Dispute Reso-
lution.” The day-long meeting will include a
town meeting looking at the future, “ADR—
What Would It Look Like if It Were Really
Working in Vermont?”
Building stronger communities is the over-
all theme of the 2001 Conflict Resolution
Month. The initial program schedule in-
cluded more than a dozen events throughout
the state.The month kicked off with a May 1
ceremony in Montpelier at which the procla-
mation was read. Michael Palmer estimates
that more than 1,000 people will take part in
the events.
A broad 16-group coalition is participat-
ing in organizing the events, including state
and judicial agencies and departments, col-
leges, community groups, the Vermont Bar
Association, and regional and national orga-
nizations.
For registration to the closing conference,
call (802) 229-0516; information about fol-
low-up programs slated for later this year is
available from Palmer at (802) 388-4073.
CORRECTION
In last month’s front page story, “Circuit City:
Backlash Is Immediate as Caucus Readies
Reversal Bill,” 19 Alternatives 111 (April
2001), the name of Ann E. Reesman, a part-
ner atWashington, D.C.’s McGuiness Norris
& Williams, was misspelled. Alternatives
apologizes for the error.
9. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 143CPR INSTITUTE FOR DISPUTE RESOLUTION
Greek scholars seemed to recommend an-
other course. Recently, CPR, together with
the Fordham University School of Law’s
Louis Stein Center for Ethics and Law, con-
vened a panel of legal and theological ex-
perts to commence a conversation about
litigation as practiced today and the place
of ADR in our Western religious and secu-
lar value systems. [See “When the Spirit
Moves: Where ADR and Values Meet,” 19
Alternatives 91 (March 2001).] I was
stunned by the strong preference given to
mediation and other private forms of dis-
pute resolution in the Catholic, Protestant,
Jewish and Islamic faiths. Each have not
only preached a preference for mediation
over judgment but, in one way or another,
has institutionalized mediation to resolve
conflict.
One has to wonder how we, with this
heritage of values, have evolved to our liti-
gious predicament where adjudication is the
predominant and often the only choice.
The fact is that ADR concepts are more
directly aligned to our basic value systems
than we have generally recognized. This
subject warrants continuing examination.
My third observation is about you. On
balance, those involved in the leadership
of ADR seem a bit special. They tend to
possess a large view of our professional role.
They are demonstrably innovative and
comfortable with change. They are proac-
tive. In my experience, ADR leadership in
large part seem to be the same persons who
have led support for the quality and re-
sources of the courts, civil rights and legal
services delivery. They are very sensitive
about their own professionalism.
Change seldom is led by the established
leadership.Yet, the most successful and dis-
tinguished members of the bar and bench
are increasingly involved in ADR and play-
ing leadership roles. Perhaps the ultimate
example of this is Judge William Webster
whose professional, public and ADR careers
are extraordinary.
Another example of the outstanding
leadership and thought involved in ADR is
to be found in the 23 contributions to the
recent CPR publication, “Into the 21st
Century: Thought Pieces on Lawyering
Problem Solving and ADR.” This book
consists of superb thought pieces on law-
yering, problem solving and ADR. [“Into
the 21st Century” served as the January
2001 issue of Alternatives.]
In sum, this ADR movement possesses
leadership. It rests on sound fundamental
values. It offers an enormous opportunity
for constructive change. Our responsibility
is to recognize its real significance and our
importance to it. As ideas go, this one is
big. It can indeed influence how we behave
with one another. Ideas don’t get much big-
ger than that.
Thank you very much for this unique
privilege.Asindicated,youareaspecialgroup
of people whose company I relish.
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
(continued from page 136)
Valuing Relationships
(continued on following page)
CPR ESTABLISHES A
NEW AWARD FOR
PROBLEM SOLVING
The CPR Institute for Dispute Resolution
last month announced a new category for
the CPR annual awards program, “Prob-
lem Solving in the Law School,” to recog-
nize scholarly and innovative legal
education.
The award along with the publication
of “Problem Solving and the Law School
Curriculum: Statement and Recommenda-
tions for Further Integration,” which was
produced by the CPR Problem Solving and
Legal Education Advisory Project. Bro-
chures detailing both the statement and
recommendations, and the award guide-
lines, are available for download at
www.cpradr.org/PSmenu.htm.
The new award will be part of CPR’s an-
nual Awards for Excellence in Alternative
Dispute Resolution, which are presented
each year at CPR’s January members meet-
ing in New York.The award emanates from
thestatementandrecommendations,thelast
ofwhichendorsedestablishinganawardrec-
ognizing legal academics who teach prob-
lem solving.
The award will be open to any course,
seminar or clinic taught at a law school “that
teaches problem solving in an innovative
manner.”The evaluation criteria will be in-
novation in teaching problem solving; sub-
stantive and pedagogical strength; the
ability to be adapted by other law teachers
and schools; and other distinguishing or
particularly meritorious features of the
course, seminar or clinic.
Applications for the first award are due
Nov. 15. The application should include
the outline of the course, seminar or clinic,
accompanied by the coordinating profes-
sors’ description, student evaluations and
any other relevant materials.
Established in 1999 with support from
the Open Society Institute of the Soros
Foundation, the CPR Problem Solving and
Legal Education Project works to integrate
problem-solving theory and practice into
the core of legal education. Under the guid-
ance of an advisory council of law teachers
and deans from 11 law schools, the council
and project have developed the statement
and recommendations, which encourage
law schools to intensify and deepen the
teaching and scholarship about the lawyer
as problem solver, and provide a blueprint
for discussion and reform.
The recommendations address seven
principal areas: faculty, research, courses,
teaching materials, other graduate schools
and programs, role of the bar, and
funders.
CPR President Thomas J. Stipanowich
says that “a major challenge for the nation’s
law schools is to develop curriculum and
scholarship to support the teaching and ex-
amination of the lawyer’s multifaceted
problem-solving approach.”
Details on the 19th annual CPR Awards,
to be presented next January, will appear
when they are released this fall in Alterna-
tives’ CPR News and on CPR’s Web site at
www.cpradr.org..
CPR’S ONLINE SEMINARS
RETURN MAY 21 ON
TRANSACTIONAL ADR
ADR 2001, CPR’s online discussion forum,
returns this month with its first session fo-
cused on Transactional ADR. The seminar
takes place at CPR’s Discussion Forums
page, which can be reached through the
10. 144 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
CPR NEWS • CPR NEWS • CPR NEWS • CPR NEWS
AANNUAL
INDEX
ALTERNATIVES
PUBLISHES AN INDEX
FOR THE PRECEDING YEAR
EVERY FEBRUARY.
The index includes listings
by subject and author.
The 1996–2000 indexes are
posted at the Alternatives link at
www.cpradr.org/publicat/htm.
Newer and back issues are
searchable on Westlaw®
and Lexis-Nexis®
.
See back page for details.
CPR home page at www.cpradr.org. It will
be open to all CPR members and panelists.
The week-long program begins on
Monday, May 21, 2001. It will run for five
days of moderated discussion, and will be
left open for an additional two days over
the weekend for “open posting.”
CPR’s ADR 2001 moderator is Peter
Zeughauser, who is a founder and principal
of ClientFocus, a Corona del Mar, Calif.,
management consulting firm. The seminar
is expected to cover all aspects of using ADR
in a transaction, with a heavy emphasis on
conflict prevention and the most effective
ways to write ADR into deals. The seminar
also expects to review enforcement.
In addition to Zeughauser, the panel in-
cludes Andrew Carr, British Nuclear Fuels,
Cheshire, England; Frank Carr, U.S. Army
Corp.ofEngineers,EllicottCity,Md.;Karol
K. Denniston, Paul, Hastings, Janofsky &
Walker, London; Thierry Garby, Garby-
Vialars-Dupas, Paris; James Groton,
Sutherland, Asbill & Brennan, Atlanta;
MichaelLeathes,BritishAmericanTobacco,
London; Col. Cheryl Nilsson, U.S. Air
Force, Wright-Patterson AFB, Ohio;
AlejandroPonieman,AsociacionInterameri-
cana de Mediacion, Buenos Aires; Donald
Lee Rome, West Hartford, Conn.; William
T. Sellay, Robinson & Cole, Hartford,
Conn.; Jean Timsit, Centre de Resolution
desConflits,Paris,andTerryTrantina,Blank
Rome Tenzer Greenblatt, New York.
Information about the self-directed,
one-time registration process is posted on
a Discussion Forums entry page accessible
from the CPR home page.
The Discussion Forums page contains
full-text versions of the seven previous CPR
online seminars, each of which also has been
the subject of special Alternatives supple-
ments. The archive seminars are available
for download free of charge.
STIPANOWICH HONORED
BY LONDON INSTITUTE
CPR announced in early May that its presi-
dent, Thomas J. Stipanowich, was invited
to become a Companion of the Chartered
Institute of Arbitrators.
Stipanowich, who also is publisher of
Alternatives, is only the fourth person to
receive the institute’s highest honor, and is
the first honoree outside Great Britain.
With about 10,000 members in 85
countries, the 86-year-old institute pro-
motes and facilitates the determination of
disputes by arbitration and other ADR,
including mediation, for business and com-
mercial areas, including construction, ship-
ping, engineering, finance, insurance,
commodities, medicine, health, informa-
tion technology, sports and the automotive
industry.
The London-based institute launched a
mediation panel and began training media-
tors in December to complement a range of
other educational and training services.
CPR SPRING MEETING
SET FOR NEXT MONTH
CPR’s annual spring meeting for members
and panelists will be held June 24–27 at the
Jackson Lake Lodge in Jackson Hole, Wyo.
The meeting is intended for senior cor-
porate counsel and senior law firm part-
ners who serve as their organization’s named
representatives to CPR, or their ADR
Counsel or delegate. All CPR panelists also
are invited to the Spring Meeting.
The program is scheduled to include the
following sessions:
• Mediators and Arbitration: A Tutorial—
A session that will examine hybrid ADR
processes, and how mediators can set the
stage for arbitration.
• Creativity in Legal Problem Solving—A
two-part seminar that will present legal
brainteasers requiring creative thinking,
then turn to real cases that analyze how
parties responded to inventive mediation
processes.
• General Counsel Roundtable—A session
that will focus on creative ADR decision
making and ADR systems design in corpo-
rate law departments, featuring leading cor-
porate counsel.
• “Escalation of Commitment”—A work-
shop that will explore how parties irratio-
nally escalate their commitment to civil
litigation by devoting more resources to the
dispute, and fewer to deciding how to end
it; the seminar will examine ways in which
organizations can reduce the likelihood of
its occurrence.
• My SevenToughest Issues in Mediation—
An experienced United Kingdom neutral
draws on a 20-year mediation career to of-
fer thoughts on mediating tough cases.
• Master Mediation Class—CPR Training
Corps members will put volunteers through
an employment mediation scenario for an
in-depth discussion of paths of action,
mediator strategies and techniques, and
party dynamics.
• Practitioner Caucuses—Small, facilitated
discussion groups will generate the issues
to be addressed in the seminar.
• Spotlight on New ADR Legislation:
What Practitioners Need to Know about
the Uniform Arbitration and Mediation
Acts—The seminar will cover key process
design considerations for lawyers and ar-
bitrators.
• Predictors of Negotiation Success: Seeing
Yourself as Your Counterpart Sees You—A
Harvard University professor will provide
feedback on profiles submitted by attend-
ees prior to the meeting, and lead a discus-
sion on how participants can use their
feedback.
For more information, see the Members
Only section of the CPR Web site, or call
CPR at (212) 949-6490 for a registration
packet.
(continued from previous page)
11. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 145CPR INSTITUTE FOR DISPUTE RESOLUTION
(continued from page 137)
(continued on following page)
Fourth, use an up-to-date issues checklist
when drafting ADR clauses. Each time you
run across another court decision that ad-
dresses a flaw in someone else’s ADR clause
or ads a new gloss on an old issue, modify the
check list.
A FEEL FOR THE BASICS
The following is the author’s checklist. The
advice to avoid blindly adopting another
attorney’s ADR clause applies equally to
checklists. Before you use this check list to
draft a clause, become familiar with it and
then make it your own. Check it against ex-
isting case law. Read the principal cases, fo-
cusing first on the U.S. Supreme Court cases
since 1983 and then on cases dealing with
the application of the state contract law prin-
ciple of “unconscionability” in the context of
both commercial and consumer or employee
pre-dispute arbitration agreements.
Most important, get a good feel for the
basic concepts that drive the courts in this
area. Then put the checklist in your own
words, use your own format. This article’s
checklist is simply a starting point, not for
drafting an ADR clause, but for drafting your
own checklist.
The checklist here assumes the incorpo-
ration of ADR rules of one of the principle
ADR providers, e.g., the American Arbitra-
tion Association’s commercial arbitration rules
or the CPR Institute for Dispute Resolution’s
nonadministered arbitration rules. Each of
these entities has a set of basic procedural rules
that can provide by incorporation a proce-
dural base from which to begin drafting a
suitable ADR provision.
Also bear in mind that each ADR entity’s
set of procedural rules is different in some
important respects and each entity’s rules may
include provisions that may or may not be
surprisingtothedrafter,butreflectthatentity’s
particular ADR or managerial philosophies.
For example, the manner in which a sub-
poena for witnesses or documents may be is-
sued differs significantly. The AAA’s rules
permit party attorneys to issue subpoenas,
while CPR limits that right to the arbitrator.
The AAA’s rules require a “reasoned award”
only if the request is made by the parties be-
fore appointment of the arbitrator. Both the
CPR and AAA rules now alter court prece-
dent on whether an arbitration panel may rule
on its own jurisdiction over the dispute, i.e.,
the threshold issues of “arbitrability” and the
“scope” of the arbitration provision.The AAA
also has a set of ancillary rules covering selec-
tion of an arbitrator on an emergency basis
when the parties wish to obtain interim relief
through ADR before a regular arbitrator can
be selected that to hear the merits of the dis-
pute, rather than having to resort to filing for
injunctive relief in a court.
ADR entities also have specialized rules
for particular industries or types of disputes.
These can be particularly useful in keeping
the size of the ADR clause to a minimum,
since the specialized rules are drafted with the
assistance of experts in the particular field.
But they must be specifically mentioned in
the clause to ensure they will be applied.
The distinctions between the ADR enti-
ties themselves is important. Some ADR enti-
ties administer the proceedings for the parties,
much like a court clerk, and charge fees for
their services (like the AAA); while others (like
CPR) do not generally administer the process
andsimplyprovideneutralpanelandappoint-
ing services and permit the arbitrator or me-
diator once selected to administer the process
directly and collect neutral fees.
Therefore, it is critical that you become
familiar with each of the specific provisions
of each ADR organization’s set of rules be-
fore incorporating them by reference. This is
particularly important as the rules have be-
come more sophisticated and are revised more
often to keep pace with best practices and
developments in the courts.The drafter needs
to include a statement in the ADR provision
incorporating the selected entity’s rules, and
another stating that, where the terms of the
ADR clause add to or differ from the ADR
entity’s incorporated set of rules, the ADR
clause will govern.
Both the CPR and AAA have also pub-
lished their own checklists and ADR clause
drafting aids for practitioners wishing to cus-
tomize basic clauses suggested by these enti-
ties. See, respectively, CPR’s www.cpradr.org
and the AAA’s www.adr.org. Finally, in some
instances, the checklist below may indicate a
preference for a specific approach to an issue
because this author feels strongly about how
the point should be handled. For example, a
strong preference is indicated for placing the
arbitrator in control of discovery and prohib-
iting party-issued subpoenas for documents.
This eliminates a potential problem when
enforcement of a third-party subpoena be-
comes an issue.
Be particularly leery of jumping to the
same conclusions before you review the statu-
tory or case law upon which my conclusions
are based. Develop your own preferences, and
always remember the proverb, “When there
appears to be only two choices, the third one
is probably the best.”
And, finally, be creative, but be fair. The
surest way to dragging your client back into
the courthouse is to overreach by drafting in
an “edge.”
CLAUSE DRAFTING CHECKLIST
Specify the Type and
Combinations of ADR
1. Select number and type of ADR steps
a. Mandatory pre-litigation negotiation
only.
b. Mandatory pre-litigation mediation
only.
c. Arbitration only.
d. Negotiation and arbitration.
e. Mediation and arbitration.
f. Negotiation, mediation and arbitration.
g. Incorporate other ADR types (e.g.,
med/arb, factfinding, mock trial).
2. Good faith, face-to-face negotiation
a. Between same players with stake in
outcome.
b. Escalate above players to “big-picture
executives” (recommended approach).
c. Require presence of a person with
authority to bind. The minimum
acceptable is a “reachable” decision
maker.
d. This step slows process down. (Is time
an issue? Desirable?)
3. Mediation by neutral third party
a. Almost always a good idea; successful
a majority of the time.
b. Require presence of a person with
authority to bind. The minimum
acceptable is a “reachable” decision
maker.
c. This step slows process down. (Is time
an issue? Desirable?)
4. Arbitration
a. Binding (preferred).
b. Nonbinding (operates to give both
sides a view of how a court may decide
the issues and facilitate settlement, but
may give losing party an idea of how
to improve arguments. It’s risky, often
taken less seriously, time consuming,
and an added expense).
5. Other binding processes, e.g., minitrial
with mock judge and jury; med/arb.
How to Design ADR
Clauses that Satisfy
Needs, Minimize Risk
12. 146 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
ADR Clauses
(continued from previous page)
6. Provide how each step is initiated and
whether the prior step must be
abandoned for the next step to
commence, e.g., arbitration demand
may not be made until after mediation
abandoned.
7. Provide whether new disputes e.g.,
counterclaims, may be raised for the
first time at a subsequent step or must
go through entire process.
Specify Size and Skill Set of ADR Panel
1. One mediator
a. Consider naming specific mediator in
advance, e.g., where speed or
mediation style is an issue, parties
both trust specific third party, etc.
b. Allow mediator expert help or expert
assistant in complex cases.
c. Provide for mediator team/assistants
in multiparty disputes.
2. One arbitrator (quicker process, less
expense).
3. Three-arbitrator panel (preferred for big
dollar cases or complex matters)
a. Decisions by majority, more
consensus decision making.
b. Broader experience base applied to
decisions.
c. Slower process, more expensive.
4. Specify neutral’s required skill set and
background (combinations permitted)
a. Attorney.
b. Former judge.
c. Non-attorney professional, e.g.,
accountant, architect, engineer.
d. Knowledge of law of specific area or
jurisdiction.
e. Knowledge of type of specific business
or industry.
f. Educational background or licenses.
g. ADR neutral training and experience.
5. Specify neutral(s), neutral list, e.g.,
former federal judges, or special ADR
Provider panel such as technology.
Specify Location of ADR Proceedings
1. Specify geographic location, e.g., city,
county, state, judicial district (failure to
at least specify state usually creates an
additional dispute).
2. Specific site, e.g., party, ADR entity, or
neutral’s office.
3. Specify site selection process, criteria or
defaults.
4. Let neutral select site.
5. Others, e.g., claimant selects site in demand.
Specify Scope of Issues &
Parties Subject to ADR
1. Include all disputes (use court-approved
“magic” words, i.e., “all disputes arising
out of or relating to . . . ”).
2. Include all except those expressly
“carved-out,” e.g., subject matter carve-
outs like patent disputes; claim value
carve-outs such as matters within small
claims court jurisdiction; or matters
determined by arbitrator to be above a
specified dollar amount.
3. Only specific issues subject to ADR (take
care to avoid an unconscionable imbalance;
mutuality not required except perhaps in
consumer and employee context).
4. Only signatory parties can/must adjudi-
cate disputes in arbitration proceeding.
5. Permit/require additional third-party
beneficiaries, e.g., subsidiaries or
parent, to adjudicate disputes in
arbitration.
6. Expressly prohibit joinder of disputes or
parties from other contracts (i.e., prohibits
creation of arbitration class actions).
7. Include claims arising under prior or
related contracts (address and reconcile
impact of superceding contract and
merger clauses)
a. Make all disputes subject to ADR
even if arising from prior contract, or
b. Only disputes arising out of or related
to new contract.
8. Specify who determines arbitrability and
scope questions
a. Absent express contract provision, the
court determines threshold questions
of arbitrability and scope.
b. Specify that arbitrator determines all
threshold issues of arbitrability and
scope (preferred; incorporation of
ADR provider rules giving arbitrator
authority over own jurisdiction may
be sufficient).
9. Specify who determines applicability of
statutes of limitations and issue
preclusion
a. Court (absent contract provision
court determines issue).
b. Arbitrator (preferred).
10. Specify that arbitrator determines all
issues of contract validity, including
expressly threshold issues of
unconscionability, contract formation
and fraud.
Specify Applicable Substantive Law
1. Specify that FAA governs and enforces
the ADR obligation and that state law,
excluding the state’s choice of law and
ADR law provisions, governs all other
substantive matters, or
2. Specify state ADR law and state
substantive law.
3. Specify limitations periods that apply
to disputes
a. Provide for application of state law
statutes of limitation; and
b. Provide for tolling of state statutes of
limitations on notice of dispute; or
c. Allow parties to apply to court to
preserve limitations on claims in some
states where filing arbitration demand
does not automatically toll.
d. Provide special contract limitations
periods for adjudicating disputes and
specify that longer state limitation
statutes do not apply
4. Provide that arbitrator must follow state
recognized and applicable privileges
(e.g., attorney client and work-product
privilege).
5. Be sure to reconcile boilerplate choice-
of-law provisions in contract with
choice of law in the ADR provision
(e.g., “Except as provided in Dispute
Resolution Section of Agreement, the
law of the state of X …”).
Specify Applicable ADR Procedural Rules
1. Specify all applicable procedures in
agreement.
2. Specify that neutral panel will
determine all procedures.
3. Incorporate ADR entity procedural rules
a. Nonadministered, e.g., CPR
Commercial Arbitration Rules.
b. Administered, e.g., AAA Commercial
Arbitration Rules.
c. Special sector rules of an ADR entity,
e.g., construction, employment,
consumer, etc., and
d. Allow neutral panel to provide for any
other required procedures.
e. Provide that ADR contract provisions
supplement and override conflicting
ADR entity rules unless special sector
rules prohibit.
4. Provide for application of all or selected
federal or state procedure rules. (Be
careful what you ask for, you may get it,
e.g., court-like discovery.)
5. Provide for application of all or some
federal or state rules of evidence.
6. Specify permitted type of proceeding—
a. Face to face.
b. Permit telephone or electronic
proceedings (or portions of
proceedings).
c. Permit resolution of dispute by
arbitrator based on written
submissions and documents.
d. Permit range of options and who
selects, e.g., neutral, one party.
13. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 147CPR INSTITUTE FOR DISPUTE RESOLUTION
7. Provide specific time limits for each ADR
step and for the issuance of an arbitration
decision and award (highly recommended).
8. Provide arbitrator power to conduct
summary proceedings or proceedings in a
party’s absence and render award when
party refuses to participate or cooperate.
Specify Arbitrator
Obligations & Restrictions
1. Specify limits of arbitrator discretion.
2. Always specify that arbitrator must
follow dictates and limits of agreement,
e.g., limitations of liability and
warranty provisions of agreement.
3. Specify that arbitrator must apply
applicable substantive law to dispute
(but specify that award shall not be
vacated for mistakes of law).
4. Allow default that arbitrator may simply
do justice, e.g., arbitrator is not
required to follow the law to resolve the
dispute.
5. Require arbitrator actions within
specified time frames, e.g., rendering
award within specified number of days
following close of hearing.
Specify Permitted Scope of
Review of ADR Award
1. Permit only that provided by applicable
federal or state ADR statute.
2. Expressly provide that arbitration award
is not reviewable for errors of law.
3. Expressly provide that arbitration award
may be vacated for “manifest disregard
of the law.”
4. Create private review panel, e.g., one-
or three-person panel to review decision
and award, and specify scope of review.
a. De novo review of facts and law.
b. Only errors of law. Specify standard,
e.g., clearly erroneous.
c. Available only if award exceeds certain
dollar amount or provides certain type
of relief, e.g., specific performance,
punitive damages.
d. Private review panel certainly lawful
and panel quality more controllable.
5. Grant specific trial or appellate court
right to review beyond applicable
statute, e.g., right to review for errors
of settled law. (This is not permitted in
some jurisdictions and may be unsettled
ground and risky where it is.) Also
specify precisely the scope of review
granted.
Specify Extent of Confidentiality
1. Specify whether existence and nature of
the dispute and proceedings will be
confidential (they are not automatically
confidential or private).
2. Specify whether information provided or
statements made in prior ADR steps may
be used in subsequent steps.
3. Specify whether a record will be made
of the proceedings and specify the
purposes for which it may be used.
4. Specify whether the decision and award
will be confidential, except for limited
disclosures to necessary third parties,
e.g., accountants, and for purposes of
confirmation or vacatur.
5. Specify whether disclosures, statements,
decision or award in any other
proceedings between same parties.
6. Agree to exclude all but neutrals, parties
and witnesses from hearing room.
Specify Permitted Scope and
Methods of Discovery
1. Adopt ADR entity rules concerning
discovery.
2. Adopt ADR entity rules concerning
discovery with specific additions or
overriding exceptions.
3. Adopt state or federal civil discovery
rules with or without specific additions
or exceptions.
4. Exclude civil discovery rules with
exceptions, e.g., provisions for serving
extraterritorial subpoenas.
5. Provide that arbitrator shall determine
all issues regarding the scope and types
of permitted discovery, e.g., depositions,
written interrogatories.
6. Specifically provide or limit scope and
type of discovery that will be permitted,
with administration by the arbitrator,
e.g., no depositions, no interrogatories,
no party-issued subpoenas.
7. Provide procedures for third-party
subpoenas, e.g., incorporate state or
Federal long-arm statutes or court rules.
8. Require mandatory pre-hearing meetings
for sharing of documents and lists of
witnesses.
Specify Type and Jurisdiction
to Confirm or Vacate Award
1. Rely on ADR entity’s procedural rules.
2. Specify request for written reasoned
decision and award.
3. Require award containing findings of
fact and conclusions of law.
4. Require or permit only bare award. (May
limit collateral estoppel effect, but may
open door to attack on basis of
“manifest disregard” of law.)
5. Specifically permit arbitrator to resolve
issues by summary judgment.
6. Grant arbitrator specific authority,
without risk of vacatur, to limit
introduction of evidence.
7. Provide for specific jurisdiction for
confirmation or vacation of award to
prevent forum shopping (default under
FAA and ADR entity rules is in any court
of competent jurisdiction).
8. Provide whether the decision and award
may be given res judicata effect in
subsequent proceeding between the
same parties.
Specify Relief Available
from Arbitrator and Court
1. Be silent on the issue of scope of
available relief (default is arbitrator
freedom to do justice and fashion any
appropriate legal or equitable relief).
2. Rely on incorporated ADR entity rules.
3. Specify that arbitrator may provide for
any relief available under applicable
statute or equity and not otherwise
lawfully restricted by the parties’
agreement, e.g., by limited warranty
and limitations of liability provisions.
4. Provide for specific limits on the scope
of relief the arbitrator may award, e.g.,
no punitive damages, no consequential
damages, no specific performance, and
only monetary relief.
5. Permit arbitrator to award interim relief,
e.g., injunctive relief, including
requiring party to seek dissolution of
court injunctions that conflict with ADR
process or relief awarded.
6. Expressly make taking dispute to court
rather than submitting it to the
required ADR process a breach of
contract for which arbitrator must grant
relief (including waiver of remedy for
dispute) and attorneys fees.
7. Provide for party absorption of own
attorneys fees, costs and ADR fees, unless
award required by applicable statute.
8. Provide for award of attorneys fees and
costs to prevailing party.
9. Provide for sharing of mediator and
arbitrator fees and ADR fees.
10. Provide for arbitrator allocation of all
or some of the ADR fees or as required
by applicable statute.
11. Allow parties to seek injunctive relief
in court solely to preserve status quo,
to preserve assets or to toll statutes of
limitations.
Miscellaneous Considerations
1. Specify precise process for and timing
of initiation of each step of ADR
a. Method, e.g., written demand or notice.
b. Set time limits for each step.
2. Specify scope of disputes subject to
particular ADR proceeding
(continued on following page)
14. 148 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
neys respect, especially when the mediator is
called upon to express a confidential evalua-
tion of the client’s case. Counsel may want to
jointly interview prospective mediators in a
telephone conference call.
Attorneys usually still have a choice of pri-
vate mediators when they have been ordered
to mediate by the court, even when the clerk
has assigned a mediator from the court panel.
In Los Angeles County, the parties continue
to have the right to retain a private mediator
(Los Angeles Superior Court, Local Rules 12.3
and 12.16). Consider the value of retaining a
private mediator even though a court-ap-
pointed neutral is available for several free
hours from the court panel. Not withstanding
the presence of many qualified mediators on
the court panel, according to a court official,
the countywide settlement rate in Los Angeles
is hovering around 55%.
All Parties Must Be Present: The absence of
a party, or potential party, from a mediation
will almost certainly lead to an impasse. Con-
sider a homeowner’s claim against an uphill
neighbor for a landslide caused by water infil-
tration, such as from a leaking swimming pool
or a ruptured sprinkler line. Counsel may wish
to consider including the adjacent uphill
neighbors, at least preliminarily, unless it has
been conclusively determined that the cause
of the water infiltration is from only one up-
hill neighbor in particular. In addition, a cor-
rective solution could affect adjacent neighbors
of the complaining party, so counsel may wish
to consider including the adjacent neighbors
to the mediation as well, at least preliminarily.
A representative on behalf of each insur-
ance carrier should be present at the media-
tion session. Insurance can be a big issue—not
just the existence of an insurance policy, but
the policy period as well. Events which may
have triggered the occurrence in question may
be difficult to pinpoint in time. Make sure all
carriers are on board for all pertinent policy
periods. There may be multiple layers of in-
surance for the same occurrence. If there is a
potential for coverage denial, make sure cov-
erage counsel is physically present at the me-
diation. Coverage counsel could be the true
decision maker for the carrier.
All Persons with Ultimate Settlement Author-
ity Must Be Physically Present: Though this is
such a basic ingredient of a successful media-
tion, the issue of who has ultimate authority
comes up often. It should be a topic in the par-
ties’ premediation discussions with the media-
tor.Forexample,wherethereisamarriedperson
who cannot settle without his or her spouse’s
agreement, suggest having an absent spouse
present before proceeding. Alternatively, the
present spouse should have power of attorney
to settle and sign a settlement agreement.
Another example is the corporate represen-
tative or the insurance carrier representative
without sufficient authority to settle. What if
the person with ultimate settlement authority
is located 3,000 miles away? Sometimes tele-
phone participation works and sometimes it
does not. Having the decision maker physi-
cally present can make the difference between
settlement and impasse.
Without physical presence, absent deci-
sion makers might not have the benefit of
understanding critical matters that cannot be
easily communicated on the telephone, such
as the demeanor and credibility of the op-
posing party, the level and quality of oppos-
ing counsel’s preparation, and the chemistry
in the room.
Sometimes an absent “nondecision maker”
can cause an impasse. A typical example is a
minority investor or silent partner who the
party feels obligated to contact before making
a commitment. Occasionally, a party needs
input from a mentor, friend or relative. In each
of these instances, consider having that miss-
ing person physically present at the mediation.
The Right Attorney Must Be at the Media-
tion: Law firms, corporations and government
entities may have more than one attorney as-
signed to a case. It is common for the firm,
company or municipality to send the associ-
ate to the mediation. Occasionally, the associ-
ate quickly reaches the limit of his or her
counseling or decision-making authority, or
may not be taken seriously by the opposition.
Lead trial counsel must be present at the me-
diation.
Willtheattorneywhoispresent,eveniflead
trial counsel, be capable of negotiating a settle-
ment? It can be difficult for some litigators to
make the necessary transition from advocate to
counselorinordertoresolvethedispute.Inthis
circumstance, lead trial counsel, coupled with
Paul R. Fisher has been a mediator since 1985, and
arbitrator since 1978, specializing in construction,
real estate, business, employment and securities
disputes. He heads his own Los Angeles firm, and
serves on the CPR Construction, Employment and
California panels, among other national panels, and
is a frequent author and speaker on mediation.
Judith Stalk assisted him in the preparation of this
article.
Mediation Advocacy
(continued from front page)
ADR Clauses
(continued from previous page)
a. Only those disputes specifically set
forth in the demand and those in
other party’s response to that
particular demand, or
b. Require joinder of all known
outstanding disputes and waiver of
disputes not expressly joined or set
forth in written demand.
c. Specify that each separate dispute (if
not waived) must go through all ADR
steps (no skipping steps, no surprise
disputes).
3. Specify what happens if one party fails
to honor agreement to arbitrate
disputes and goes instead to court to
remedy a dispute subject to arbitration.
a. Specify that going to court is a separate
breach of the agreement for which damages,
including attorneys fees, are recoverable.
b. Provide that failure to withdraw suit
on demand shall result in waiver of
the right to relief for the dispute taken
to court.
4. Specify what happens when one party
fails to pay fees of administering ADR
entity or neutral
a. Allow other party to pay to permit
ADR to continue administration, or
b. Provide that failure to pay required
fees constitutes a binding waiver of
the dispute(s) subject to process.
c. Require arbitrator to proceed to award
without regard to nonpayment of fees
by one party (enforceable if arbitrator
accepts appointment and prevents one
party from halting the process).
5. When consumer or employee is one party
to agreement, provide for extra notices,
disclosures, procedures and process cost
subsidies not normally required in
business-to-business agreements to avoid
attack based on unconscionability
(consider use of bold and oversize print)
a. Disclosure of arbitration obligation.
b. Notice of loss of right to go to court,
to have a jury trial and appeal.
c. Notice of inability to join class actions
or join other contract disputes or
parties in arbitration.
d. Notice of amount of costs and fees to
be paid by consumer or employee
(costs should not be disproportionate
to amount of dispute and as a
practical matter foreclose right to
remedy for breach).
e. Ensure that arbitrator may award all
substantive remedies available under
applicable statutes (including attorney
fees and punitive damages).
f. Ensure that arbitration obligations are
mutual and carve-outs are limited and
facially justifiable.
g. Identify consideration for agreement
in employee context.
15. VOL. 19 NO. 5 MAY 2001 ALTERNATIVES 149CPR INSTITUTE FOR DISPUTE RESOLUTION
a skillful negotiation attorney, makes a formi-
dable mediation team.
The Right Timing in Mediation Can Be Ev-
erything: Have all parties been brought into
the mediation? Have all insurance carriers been
locatedandaretheyparticipating?Doallcoun-
sel have sufficient information from their cli-
ents and the other parties? Obtaining sufficient
information may not necessitate depositions
when voluntary document and information
exchanges may suffice. In other cases, how-
ever, counsel may need limited depositions
before commencing mediation, such as the
plaintiff and alleged wrongdoing employer in
a work-related dispute, or the plaintiff and
registered representative in a securities dispute.
Thereisariskthatafterthepartieshavespent
a lot of money on expensive discovery, includ-
ing the taking of experts’ and nonparties’ depo-
sitions, that both sides become convinced that
theevidencesupportstheirposition.Therefore,
too much discovery can lead to entrenchment
of positions and greatly reduce flexibility, thus
increasing the likelihood of an impasse.
On the other hand, sometimes it is necessary
for the court to set a trial date before parties and
counsel get serious about resolving the dispute.
Prepare Appropriately: Attorneys and parties
send a message to the opposition, and to the
mediator, with their level of preparation. That
message can range from “I haven’t put much
effort into this case because I don’t think it’s
worth much” to “Here’s my proof. Pay now or
pay later, plus interest, attorney fees and costs,
and the risk of punitive damages at trial.”
What type of message does the party want
to send to the opposition? The message coun-
selsendsisfoundinthebriefs,statementsmade
during the joint session, and in the private
sessions with the mediator.
Bring to the mediation all documents that
will convince the opposition and the media-
tor of the parties’ position. When you go to
trial, would you leave the exhibits in the of-
fice? The missing piece of evidence can tem-
porarily stop the mediation or cause impasse.
Mediation counsel should prepare clients
for what to expect from the mediator, oppos-
ing parties and counsel, the joint and private
sessions, and most important, how the pro-
cess works. Counsel should analyze with their
clients the weaknesses in the client’s case and
the strengths in the opposition’s case. They
should discuss what has caused negotiations
to be unproductive. Carefully outline the costs
of pursuing the client’s claim or defense
through discovery, preparation for trial and
trial, in the event mediation fails. Prepare the
client to discuss, at the appropriate time, emo-
tional issues. Consider bringing the client into
the creation of the dispute resolution process
before the mediation is set up. This helps the
client invest in the success of the process from
the time of its inception. See, e.g., “All You
Need to Know About Mediation But Didn’t
Know to Ask —A Parachute for Parties in Liti-
gation,” Business Law News, the State Bar of
California, Business Law Section (1998); and
“What Clients Must Know about Mediation:
An ADR Primer for Parties About to Litigate,”
16 Alternatives 39 (March 1998), both avail-
able at www.fishermediation.com/library.htm.
Though witnesses do not usually appear at
a mediation, sometimes experts can provide
information on highly technical issues upon
which the case turns. This can quickly move a
case along, and can help prevent a mediation
from stalling due to a lack of technical infor-
mation. If as mediation counsel you contem-
plate having an expert present, be sure to ad-
vise the opposing counsel so the other side can
have its expert present.
Consider what the opposition’s needs are.
Some of them must be met. Before the media-
tion, prepare a list of deal points you believe
might meet the opposition’s needs. Offering
one or more of these at the appropriate time in
themediationcanpreventorbreakanimpasse.
Consider alternative solutions to each issue.
The more complex the issues and relationships,
the more thought needs to be given ahead of
time to find solutions. Consider nonmonetary
solutions such as a letter of reference in an al-
legedwrongfulterminationcase,aletterofapol-
ogy, or a donation to the other party’s favorite
charity. Consider preparing and making alter-
native demands and counteroffers. Be creative.
Outline the terms that you want in the
settlement agreement. Better yet, bring them
on disk to be modified at the mediation’s con-
clusion. Deal points should be discussed with
the mediator early on so they can be negoti-
ated along with monetary issues. A major deal
point raised at the final round of negotiations
can cause a shock and lead to impasse.
Is Each Party PayingTheir Share of Mediator
Compensation?: If one party pays the other
party’s share of the mediator’s fee, the nonpay-
ingpartysometimesisnotsufficientlycommit-
ted to the dispute resolution process or is not
sufficiently flexible. This also can lead to im-
passe.Thisisparticularlylikelywhenaplaintiff’s
attorney is on a contingency fee arrangement
andthedefendantispayingallofthemediator’s
fees. What does the plaintiff in this arrange-
menthaveinvestedinthemediation?Whatdoes
that party have at risk? Very little. The party
literally is getting a free ride.
All Parties and Counsel Must Be Committed
to Resolving the Dispute at the Mediation: Par-
ties and counsel should take the mediation as
seriously as if it were taking place on the court
house steps. Anything less and the mediation
may reach an impasse. As noted, commitment
is expressed in having the right attorney
present, i.e., lead trial counsel and not the as-
sociate, as well as having present a representa-
tive of the party who has complete authority
to resolve the dispute.
Are the parties participating in the media-
tion voluntarily or are they compelled to be at
the mediation by court order? One significant
reasonfortheLosAngelesSuperiorCourt’scom-
paratively low mediation settlement rate, which
wasnotedabove,isthatthereisreluctantpartici-
pation of at least one party or its attorney.
Commitment inherently includes the criti-
callynecessaryingredient,flexibility.Eachparty
in a dispute must be flexible. They cannot ex-
pect that only the other party must be flexible.
Eachpartymayhavetomovesignificantlyfrom
where they want the case to settle. The attor-
neys need to prepare their clients for this pos-
sibleeventuality.Eachpartymustbecommitted
to resolving the dispute at the mediation.
Immediately Document the Settlement at the
Mediation: Mediations should successfully end
at a computer where counsel use one of a vari-
ety of form settlement agreements. The attor-
neyscanaddanddeleteanythingfromtheform
agreements, while the mediator facilitates dis-
putesinconceptsandlanguage.Formediations
conductedatcounsel’soffices,mediatorsshould
bring the settlement agreements on disk.
Failingtoimmediatelydocumentthesettle-
ment before anybody leaves the mediation may
lead to impasse. Parties may, and often do,
change their minds the next day, or in the
weeks that it sometimes takes for counsel to
draft and renegotiate terms.
Some of the
opposition’s needs
must be met. Before
mediating, prepare a
list of deal points
that do that.
16. 150 ALTERNAT IVES VOL. 19 NO. 5 MAY 2001CPR INSTITUTE FOR DISPUTE RESOLUTION
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