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This Year's ADR Awards

By CPR News April 8, 2013

The CPR Institute presented its 30th Annual Academic Awards for Excellence in Alternative Dispute Resolution at a Jan. 17 dinner at the Lodge at Torrey Pines in La Jolla, Calif.

Seven awards were presented at the event, which took place during the 2013 CPR Institute Annual Meeting. For photos, and a list of the 20 awards judges and their affiliations, as well as information and features on past winners, please visit www.cpradr.org/Awards/AnnualAwards.aspx.

The James F. Henry Award, named after the CPR Institute’s founder, and presented for leadership, innovation and sustained commitment to the ADR field, was presented to JAMS neutral Margaret L. Shaw. For details on Shaw’s award and work, as well as past Henry Award winners, see “New York Practice Leader Margaret Shaw Receives Sixth James F. Henry Award,” 31 Alternatives 47 (March 2013).

Here is the remainder of the awards recognizing 2012 work:

The Outstanding Practical Achievement Award was presented to the Foreclosure Mediation Unit at the Sandra Day O’Connor College of Law, Arizona State University, in Tempe, Ariz. The unit was created by the law school’s Lodestar Dispute Resolution Program to provide mediation services between lenders and residential borrowers facing foreclosure, as well as conduct housing-related programs for the general public.

Soon after the Foreclosure Mediation Unit was opened, it was enlisted by the U.S. Bankruptcy Court for the District of Arizona to administer a program that assists the court in managing residential mortgage and foreclosure cases. The program provides guidance for facilitated negotiations in contested lift-stay hearings under 11 U.S.C. § 362.

The goal is to help assist in easing court congestion and support mortgage modifications or negotiated settlements for debtors and secured creditors. O’Connor College of Law students are trained to work in commercial mediation under the supervision of licensed practitioners. The students have the opportunity to observe, co-mediate and participate in the unit’s program administration.

Timothy Burr, director of the Foreclosure Mediation Unit, and Art Hinshaw, director of ASU’s Lodestar Dispute Resolution Program, accepted the award at the dinner.

Information on the Foreclosure Mediation Unit can be found at http://bit.ly/XbXgxi. The program was nominated by Robert F. Copple, who heads his own law and ADR firm in Scottsdale, Ariz. Copple, long active in the CPR Institute, is a member of CPR’s Patent Mediation Task Force.

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New York conflict resolution practitioner Irene Warshauer, a veteran CPR Awards judge (and editorial board member of this newsletter) introduced the awards for the Professional Articles, and accepted them on behalf of the winners.

The long-form law review winner was “Mediation: The New Arbitration,” by New York academic Jacqueline Nolan-Haley, a law professor at the Fordham University School of Law. The article focuses on mediation’s relationship to arbitration, and concludes that the latter adjudicatory process is hurting the general utility of mediation as an alternative to litigation.

Mediation’s “loss of identity” as it moves “toward the arbitration practice zone,” writes Nolan-Haley, “limits the spectrum of options available to disputing parties, leaving them with a single forum with variations of adjudication. This deprives parties of the primary benefit of mediation—a type of mercy, which provides relief from the rigidity of the formal justice system, with its adversarial orientation.”

Nolan-Haley traces the evolution and rise of mediation practices and declines in arbitration. Then, she focuses on lawyer’s “aggressive behaviors” in mediation advocacy, evaluation, and hybrid med-arb processes. She conducted a study of lawyer mediation behaviors, and provides empirical results, which demonstrates the negative effects of mediation’s migration toward arbitration processes and behaviors.

The article explores why “legal mediation” is shifting toward arbitration. It concludes that the move “is problematic” for the justice system, and for dealing with disputes generally. Noting ethical, pedagogical and public policy concerns, Nolan-Haley concludes that “[w]e need more skilled and better trained and equipped mediators to [rein] in the unbounded and overly zealous advocacy displayed at mediation.” She also supports better practice standards, revising the ABA Model Rules of Professional Conduct to focus on attorneys’ mediation caucus conduct, and more collaboration between counsel and neutrals.

“They should make clear,” Nolan-Haley writes, “that the mediator, not the advocates, is in control of the process.”

The article is published by the Harvard Negotiation Law Review. See 17 Harvard Neg. L. Rev. 61 (Spring 2012)(available at http://bit.ly/QvKdpe).

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Warshauer introduced the professional “short article” award for Charles B. Rosenberg and Matthew T. Parish, “Investment Treaty Law and International Law,” 23 Amer. Rev. of Int’l Arb. 1 (August 2012)(available for fee or with Lexis subscription here: http://bit.ly/XTghUJ).

The article addresses the knotty issue of investment arbitration decisions that attempt to reconcile conflicts with treaties and other areas of international law. Investment treaties provide recourse for foreign investors when their investments have problems in the country in which they are made.

The treaties provide for arbitration, which is supposed to increase the potential for investments so that foreign companies aren’t subject to a home-court advantage in the nation’s courts. Usually, a treaty invokes protections against actions by a foreign government.

The article focuses on three recent international cases that examine the relationships between treaty tribunals and enforcement. It also addresses how the European Court of Human Rights views its jurisdiction in relation to arbitration awards, noting that the court has recognized that investors have a right to have their award enforced.

The article also examines the “intra-EU” bilateral investment treaties that have arisen because of the integration of the old Eastern Bloc into the European Union. No consistent line of analysis on enforcement has emerged in those situations, the article says.

The article concludes that international investment law generally trumps other areas of international law.

Coauthor Parish is a partner in the Geneva office of Holman Fenwick Willan; Rosenberg is a legal adviser at the Iran-U.S. Claims Tribunal in the Hague, Netherlands.

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David H. Burt, corporate counsel to the DuPont Co., had glowing words about how much he enjoyed Grant Strother’s Outstanding Student Article in presenting the 2012 award for award to the former Harvard Law School student at the CPR Awards dinner.

Strother won for his paper “Resolving Cultural Property Disputes in the Shadow of the Law,” which had been prepared for a class. He graduated last year, and is an associate in Davis Polk’s litigation department and works in the firm’s Menlo Park office. The article, which is expected to be published next spring in the Harvard Negotiation Law Review, is available at http://hvrd.me/XGzKdX.

The article focused on the effect of laws on the tenor and direction of conflict resolution efforts. The context is cultural property law, which crops up in a wide variety of disputes, but is most familiar as issues between cross-border parties over historic artifacts. The players may be art collectors, companies, or governments.

Strother frames the problem in a hypothetical disagreement resulting in claims by foreign governments for the restitution of object from a U.S. museum.

Said David Burt at the dinner, “This paper is first a very sober recounting of the laws … when a foreign government requires the return of a [looted] antiquity from the U.S. government.” Burt explained that rights are murky and relationships may not even exist.

In his article, Strother writes that cultural property disputes “present an interesting challenge at the intersection of law and negotiation.” The matters rarely get into courts, he notes, relying on private discussions. He recounts the national and international laws that apply, but states that they aren’t effective for resolving the disputes. The paper argues that though the legal rules “seem to have a low likelihood of enforcement,” they are still “significant in cultural property dispute[s]” because they “shape[] bargaining over cultural property.”

Strother proposes ADR for property dispute resolution. He writes that the law should focus parties on interests within the dispute. He suggests incorporating ADR—arbitration, mediation or “collaborative law in negotiation”—into international cultural property law, which would make use of it “high obligation,” and provide “institutional and constituent shade” for using interest-based processes.

Strother also suggests using “low obligation” international law methods, such as nonmandatory pushes to negotiation and interest-based bargaining resources and techniques.

“The possibility of enforcement of cultural property legal rules brings parties to the table,” Strother writes, concluding, “Enforcement is unlikely, and yet the legal rules are still influential in the way that they focus the discourse of the dispute resolution process on rights and power rather than on the interest of the parties, mostly to unproductive results.”

The CPR Award wasn’t the first for Strother and his paper. Last June, the article won Harvard Law School’s Roger Fisher and Frank E.A. Sander Prize, which was established in 2007 to recognize achievement for the best student paper on negotiation, dispute systems design, mediation, or an ADR topic.

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DuPont’s Burt also presented the award for Outstanding Book, noting that the winner “could hardly be more timely.” He presented the award to editors Mohamed S. Abdel Wahab, Ethan Katsh, and Daniel Rainey for “Online Dispute Resolution: Theory and Practice” (The Netherlands: Eleven International Publishing (2012)). The book, a compendium of contributions on the latest in ADR technology, is available at www.ombuds.org/odrbook/Table_of_Contents.htm.

“It has an all-star team of legal scholars that contributed to it,” said Burt, adding, “It will be the go-to book on the … area.”

Chapter contributor Colin Rule, who is CEO of modria.com, an online dispute resolution provider, accepted the award on behalf of the book publishers and editors. [The CPR Institute, which publishes this newsletter, and modria.com are working together on developing ODR platforms that can address streams for private matters; see CPR’s website at www.cpradr.org for updates.]

* * *

CPR board member Thomas Sabatino Jr., who is executive vice president and general counsel for Walgreen Co., based in Deerfield, Ill., presented the final award of the evening at the San Diego dinner, for Outstanding Electronic Media. The award, which goes to a company, group, or individual that has produced exceptional electronic media on ADR, was presented to Just Court ADR (see http://blog.aboutrsi.org), a blog that provides up-to-the minute information on developments in court conflict resolution programs. The award was accepted by Susan M. Yates, executive director of Resolution Systems Institute (see www.aboutrsi.org/staff.php?ID=3), which assists courts in improving the quality of their ADR services in its home state of Illinois, as well as nationally through the website and blog.

CPR MEMBER-GET-A-MEMBER PROFILE: FEINBERG ROZEN

Washington, D.C., law firm Feinberg Rozen LLC is one of three organizations that have led CPR’s 2012-2013 Member-Get-A-Member Campaign.

Kenneth R. Feinberg

The firm is headed by name partner and national conflict resolution expert Kenneth R. Feinberg, who has been a participant in CPR Institute activities since the 1980s. Feinberg is best known as the special master for the Sept. 11 Victim Compensation Fund, in which Congress authorized payments to pay those injured and the families of people who died in the 2011 terrorist attacks.

The CPR Member-Get-A-Member Campaign spreads the word about commercial conflict resolution via organizations committed to improving the practice—that is, those that already participate in CPR initiatives. For the campaign, CPR members disseminate information to companies and vendors about the CPR Institute’s alternative dispute resolution initiatives, as well as membership offerings. CPR also assists members on approaches to nonmembers, as well as acts on information provided by members about organizations that might be receptive to a membership invitation.

Feinberg, the author most recently of “Who Gets What: Fair Compensation after Tragedy and Financial Upheaval,” published last year by PublicAffairs, has a long history of administering claims resolution facilities in high-profile affairs. In the 1980s, he worked on Agent Orange herbicide cases to settle extensive litigation between injured Vietnam War veterans and chemical companies. He did similar work in the Dalkon Shield cases, compensating injured users of a defective contraceptive device.

More recently in 2009, he was appointed by the Obama administration to temporarily oversee executive pay at seven big companies receiving bailouts under the $700 billion Troubled Asset Relief Program.

Feinberg’s biggest current matter involves claims made against BP for the 2011 drilling platform explosion and discharge into the Gulf of Mexico. The British oil giant posted $20 billion to fund the Gulf Coast Claims Facility. He oversaw a process in which Feinberg Rozen hired more than 4,500 professionals, “including claims processing firms, accounting firms, investigators, catastrophe response companies, economists, academics and other professionals … to assist it in the development and implementation of claims processing protocols and methodologies,” according to a report on the facility commissioned by the U.S. Justice Department.

The facility formally closed last year after paying about $6.2 billion to 220,000 claimants, and continues payments in a transition process to a successor, court-supervised facility which opened last year, and on which Feinberg Rozen continues to work.

Over the past year, Feinberg and his firm have administered smaller matters that have garnered significant media coverage and public interest:

  • He is acting as a mediator in the civil lawsuits—28 at press time—that sprung out of the Jerry Sandusky child abuse cases at Penn State University.
  • He was tapped to administer compensation in a the $77 million fund to compensate the injured or those who lost family at the September 2011, Reno, Nev., National Championship Air Races, where 11 people died and about 70 people were injured in a crash, according the Associated Press.
  • He is overseeing claims facilities for an insurance company related to business insurance claims in the wake of superstorm Sandy. [The CPR Institute assisted Feinberg with neutrals’ recruitment; details can be found on CPR’s website, here: http://bit.ly/13RDkW5.]

Feinberg has participated in many CPR events as a panelist and speaker. In CPR’s 2009 Annual Awards for Excellence in ADR, Feinberg received a James F. Henry Award, named after the organization’s founder, for outstanding achievement in the conflict resolution field.

Feinberg also has just begun another effort to boost awareness about the CPR Institute. At press time in late March, he initated a three-part, invitation-only Master Breakfast Series on Mediation, which was to continue into April. The program, “Mediation: Should I Mediate? When? How?” is directed to corporate counsel, and is being held in the New York office of Kaye Scholer. Feinberg is a former partner at the firm. Slots for the April sessions may still be available; check the home page at www.cpradr.org or call +1.212.949.6490.

Feinberg is co-chair of the CPR Commission on Facilities for the Resolution of Mass Claims, which two years ago released the CPR Master Guide to Mass Claims Resolution Facilities. The book discusses sophisticated ADR use in a variety of mass claims situations. It recommends best practices for different types of claims, including mass torts, disasters, defective products causing only property damage, and even Sept. 11-type tragedies. It provides a roadmap for determining who is entitled to receive money and guidelines for implementing the distributions.

Feinberg and his firm recruited Houston-based Susman Godfrey LLP to be a CPR Institute member. Susman Godfrey is a 32-year-old litigation boutique, which has five U.S. offices and nearly 100 attorneys. Last month, the new CPR Institute member featured on its website (see http://bit.ly/Wi7SvG) a Finra arbitration the firm’s attorneys had won on behalf of two former Morgan Stanley brokers. The Feb. 21 decision ordered the investment bank to pay $1.5 million in unpaid commissions to the brokers, according to the law firm.

In future issues, Alternatives will profile the other organizations that participated in the CPR Member-Get-A-Member campaign. Participating organizations such as Feinberg Rozen receive discounts on CPR Annual Meeting registration fees, as well as recognition on CPR’s website, in its annual report, and at the meeting itself.

For assistance with spreading the word about the CPR Institute, see this CPR website page: http://www.cpradr.org/
About/Membership/MemberGetAMember.aspx
. For general membership information, contact CPR Institute Membership Director Terri Bartlett at tbartlett@cpradr.org or +1.212.754.4261.

Featured Panel: CPR’s Energy, Oil & Gas and Environmental Neutrals

The Energy, Oil and Gas Panel—one of the CPR Institute’s many specialty Panels of Distinguished Neutrals—is a blue-ribbon international panel that includes former general counsel and other energy neutrals who are experts in resolving complex disputes including alternative energy sources, and electrical, gas and nuclear specialties.

Robert P. Wax

Robert P. Wax, a former energy industry general counsel, and past head of the regional energy practice of a large international law firm, has been an independent commercial arbitrator and mediator in his sole ADR practice for more than 10 years. He is not only active on CPR’s Energy, Oil and Gas Panel and Committee, but he also is a CPR National Panelist as well as a CPR member.

Wax writes, “My 35 years of expertise as a General Counsel and as outside counsel in the energy industry has provided me with hands-on litigation, commercial and corporate expertise invaluable in serving as an arbitrator and mediator in the often highly regulated energy field, as well as in many other industries. Parties, and their counsel, in the numerous neutral assignments I have handled in the energy arena[,] have told me that I was selected for, and have brought to their disputes, a real insider’s expertise on complex technologies and construction projects in the nuclear, renewable energy, electric, gas and power transmission fields.”

The neutrals with extensive energy backgrounds who serve on this panel acquired their experience by serving at the Federal Energy Regulatory Commission and the U.S. Nuclear Regulatory Commission. They also have been in house at companies like General Electric Co., Fluor Technology Inc. of Irvine, Calif., and major regional electric companies.

E. David Tavender

E. David Tavender is partner emeritus in the Calgary office of Fraser Milner Casgrain LLP. Tavender’s ADR practice has seen him serve as a neutral and as counsel on commercial arbitrations and mediations.

He notes that “practicing in the heart of Canada’s energy country provides a unique perspective on the challenges faced by all stakeholders in the energy sector. This perspective allows me to get up to speed quickly on cases which saves the clients time, frustration and ultimately, cost. Being intimately familiar with the energy industry allows me to see the nuances of the parties’ positions that are being put forward.”

With spring arriving last month, and in anticipation of Earth Day later this month—as well as in keeping with a terra theme—another specialized CPR panel focuses on environmental law matters. This panel is composed of highly experienced attorneys focusing on resolving a wide variety of environmental conflicts, like U.S. Environmental Protection Agency regulations and Brownfields redevelopment. Panel members’ areas of specialization include water rights, toxic torts, natural resources, and land use.

Eric Watt Wiechmann

Eric Watt Wiechmann is managing partner of McCarter & English LLP, based in the firm’s Hartford, Conn., office. His tenure at the 400-lawyer firm has helped him focus not just on disputes’ legal aspects but also the parties’ underlying business, financial and personal objectives.

Wiechmann has been an adjunct member of the American Chemistry Council and is past general counsel of the New England Alternate Energy Industry Association. He has mediated several significant environmental disputes, including a federal suit involving 19 parties alleged to have contaminated an industrial property.

Wiechmann says, “Over three decades of representing companies and other parties involved in various aspects of the energy (e.g., petroleum, natural gas, coal, electricity, solar) and related chemical industries has given me a heightened sensitivity to the issues confronting parties facing disputes arising from purchase, production, transportation, use and cleanup of the various forms of energy, chemicals or related products. My familiarity with the terminology, science and business processes common to these industries [has] helped me in both deciding arbitrable disputes and facilitating the communication of each party’s goals and interests in mediation sessions.”

For further information about these or other CPR Panels of Distinguished Neutrals, please contact CPR Special Counsel Mara Weinstein at mweinstein@cpradr.org.

—Mara Weinstein, CPR Institute


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