Litigation Attorneys

M2 PRESSWIRE-13 June 2002-US DOT: Secretary Mineta announces policy on Alternative Dispute Resolution (C)1994-2002 M2 COMMUNICATIONS LTD

RDATE:06122002

U.S. Transportation Secretary Norman Y. Mineta today announced a Statement of Policy on Alternative Dispute Resolution (ADR) to further the U.S. Department of Transportations commitment to expand the use of consensual

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Islamabad, October 04 (PPI) The International Finance Corporation (IFC), the private sector arm of the World Bank Group, received an award in London for its alternative dispute resolution project in Pakistan. IFC received the Centre for Effective Dispute Resolution’s Award for Excellence in the “International Category.”

The project has

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In 1977, while still in private practice, my ENDISPUTE colleague, Eric Green, and I helped to design and participated as advocates in what we called an “Information Exchange,” in a successful effort to settle a major patent infringement lawsuit between TRW and Telecredit. In August, 1978, after I made a presentation about the “TRW-Telecredit Information Exchange” at the ABA convention, a New York Times story reported on my talk under the headline, “Minitrial Settles Corporate Dispute.” Thus, the name, “Minitrial,” was born and the use of alternative dispute resolution, or “ADR,” to settle a major corporate dispute got its first major public exposure.

Since 1978, and particularly in the last 5 years, there has been an explosion of interest in and the use of innovative approaches to resolving disputes. Still, many corporate managers and lawyers have not had experience in using mediation, minitrials and other ADR techniques to resolve complex disputes, thus avoiding litigation or ending it quickly.

This article is distilled from Eric’s and my experience, as well as that of ENDISPUTE’s other staff, in resolving corporate, commercial, environmental, tort and public policy disputes over the past decade. During that period of time, ENDISPUTE has been involved in helping parties design and implement innovative approaches to resolving several hundred disputes, with dollar stakes ranging from hundreds of thousands to hundreds of millions.

The primary focus of this article is on disputes which, if not settled, will be resolved through litigation. Its aim is a very practical one–to provide a framework for business executives and practicing lawyers to think about whether and how particular disputes can be resolved more cost-effectively. It seeks to do that by providing, in outline form, a systematic way of deciding whether a dispute has ADR potential and which ADR process is best.

Alternative Dispute Resolution–or ADR–processes are those other than the most-used primary processes of adjudication and direct negotiation. They seek to avoid the uncertainty, unpredictability, delay, and high transaction costs which are key problems of traditional litigation.

ADR processes can be non-binding or binding. They usually involve a neutral. Some ADR processes–such as mediation and the minitrial–are non-binding. They facilitate settlement by modifying the negotiation process to increase the likelihood of agreement. A mediator, for example, may assist negotiators by calming the emotionalism surrounding a dispute. A minitrial’s neutral advisor provides a non-binding opinion about the legal and practical strengths and weaknesses of the parties’ cases, and thus often helps break a negotiation impasse stemming from different views of likely in-court outcome.

Other ADR processes–such as arbitration–are binding. Arbitration often can provide a faster and less expensive decision resolving a dispute which would be obtained through traditional in-court adjudicatory processes.

ADR processes can be implemented by an ad hoc arrangement of the parties or through an established forum. The parties to a dispute can agree through an ad hoc arrangement to conduct a minitrial, retain a mediator, or hire a former judge to conduct a private settlement conference. ADR processes

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The USAF shows how top management commitment, adequate resources, quality communication, and training are the recipe for ADR success.

What does it take to have an award-winning alternative dispute resolution (ADR) program? According to the Department of the Air Force (USAF), it takes strong commitment from senior managers, sufficient financial and people resources, and a wide variety of communication tools including websites and awareness briefings, and extensive ADR training. The USAF’s successful ADR program serves as a model for other federal agencies.

The Air Force defines ADR as “the voluntary use of a neutral third party to arrive at a mutually acceptable resolution to disputes.” The most commonly used ADR techniques used by the USAF for resolving both military and civilian workplace disputes are facilitation and mediation. They are used most frequently for resolving Equal Employment Opportunity (EEO) disputes, but are also used in labor and employment disputes.

Success Rates

The USAF established its ADR Program in 1993 when the secretary issued an Air Force-wide memorandum to implement the Administrative Dispute Resolution Act

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ADRWorld.com, a site for alternative dispute resolution news and resources on the World Wide Web, has launched a searchable online directory of arbitrators, mediators, and attorneys to help the business community and the public find qualified dispute-resolution professionals.

With detailed profiles and advanced search capabilities, ADRWorld.com’s online database

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I am on summer vacation. I am also helping the World Bank and several governments in Nigeria on their plan to improve on conflict resolution in Nigeria through Alternative Dispute Resolution (ADR) under the auspices of my organisation Corporate Mediators which pioneered the professional practice of ADR in 1995.

Business brings me to Nigeria regularly. I was last here in February to help train new mediators.

Observed Growth & National Devt

Within the space of 4 months there has been a change, a new air of hope. People seem more confident about doing business in and with Nigeria. Economically we are at the beginning of a new era and business men being acute preceptors of opportunity are cashing in on that.

Nigeria has reached, economically, a point of no return positively, especially with the new government. I expect progress in industry from now on. This of course impacts on national development. Nigeria is as strong as its industry, be it banking, manufacturing or services.

There are areas that political leadership is still working out i.e. fallout of the last election, but they are at a stage of maturity that makes them sensitive enough to look at the outstanding conflicts from an all-inclusive perspective - economic, political and social.

More : allafrica.com

Spira is a lawyer practicing in transportation and logistics. His comments are intended to discuss general issues related to logistics and logistics outsourcing. They are not intended to provide, and should not be used in lieu of legal advice on specific matters. The facts of any particular situation and the applicable laws will determine the resolution of each legal matter. Please direct questions or comments to Robert Spira, 629 Euclid Ave., Suite 1000, Cleveland, Ohio, 44114-3077; phone (216) 781-4680; fax (216) 241-1421; email rspira@email.msn.com.

Litigation is one of the least effective methods of resolving a dispute under a contract for logistics services. It compares unfavorably with most other methods of resolving disputes. Years ago, antagonists could fight a duel to settle their differences. In some respects, a duel is better than a lawsuit because a duel can produce a quick and decisive winner

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The subject of medical malpractice merited but one sentence in President Clinton’s address Wednesday night on health care. But even before he unveiled his plan, lawyers, doctors, and patients alike were complaining about the changes the President has proposed for resolving medical malpractice disputes.

In urging everyone to take responsibility for solving the health care crisis, the President mentioned “lawyers who abuse malpractice claims,” then quickly moved on. He left unmentioned his eight-pronged program for changing the current system, perhaps because it has already angered two key constituencies, each bearing the consumerist banner: lawyers and doctors.

Plaintiffs’ lawyers, who contributed large sums of money to the Clinton campaign, complained that the changes would make it more difficult for victims of negligent doctors to get to court, then reduce what they could collect once they got there. They charged that the Clinton Administration was trying to sell doctors on health care reform by overhauling a system that works fine as is. A Triple ‘Minimal’

“There is a minimal, minimal, minimal relationship between the cost of health care and the cost of litigating these cases,” said Barry Nace, a Washington lawyer and president of the American Trial Lawyers Association.

Consumer activists and patients’ rights groups were even more unhappy. “I think the Administration knows this will likely decrease the quality of health care, but they’re willing to play politics with people’s lives in order to reach a political goal,” said Pamela Gilbert, director of Public Citizen’s Congress Watch. “It’s a plan that Dan Quayle could like.”

More : query.nytimes.com

Managing your practice

There are two sides to every story.

Legal disputes are no different, but under the restraints of the rules of evidence, civil procedure, and courtroom decorum, parties often feel their version of events isn’t fully heard by the court.

That’s why in recent years, judges and attorneys alike have encouraged litigants to engage in less conventional methods of adjudication.

Enter alternative dispute resolution (ADR).

In particular, facilitative mediation has emerged as a frontrunner because, as Karen A. Beauregard, executive director of the Dispute Resolution Center of Central Michigan, told Lawyers Weekly, “parties prefer processes which permit significant participation and the opportunity to ‘tell their story.’”

Indicative of this trend, the Michigan Supreme Court adopted Michigan Court Rule (MCR) 2.411 in May 2000 to regulate all aspects of court-ordered mediation

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The Equal Employment Opportunity Commission has changed the procedures federal employees use when pursuing equal employment opportunity complaints. The changes include restrictions on the ability of federal agencies to overturn administrative law judge decisions as well as new rules guiding the use of alternative dispute resolution (ADR) and the dismissal of complaints (see Federal Register, Vol. 64, No. 132, July 12, 1999).

“The commission has broken new ground in making the federal EEO complaint process more efficient, expedient and fair for federal employees and agencies alike,” EEOC chairwoman Ida Castro said. “In particular, we have improved and streamlined the process by eliminating unnecessary layers of review and addressing perceptions of unfairness in the system.”

Before the issuance of the new regulations, an agency could reject or modify an administrative law judge’s decision. Although employees bringing charges could appeal further, this was an inefficient system to say the least. Because agencies are the defendants in EEO complaints, they clearly cannot be impartial in such matters and never should have been permitted to ignore the decision of a judge who has carefully and impartially reviewed all of the relevant facts.

This long-overdue realization was behind the EEOC decision. An EEOC spokesman said the organization “strongly believes that allowing agencies to reject or modify an administrative judge’s findings of fact and conclusions of law and to substitute their own decision[s] leads to an unavoidable conflict of interest and creates a perception of unfairness in the federal EEO system.”

Duh.

Under the new regulations - effective Nov. 9, 1999 - administrative judges will issue decisions on all EEO complaints filed by employees. Agencies then must issue a statement accepting the judge’s decision or file an appeal with the EEOC.

Under the new rules, federal workers who prevail in an EEO complaint will not be forced to endure a lengthy agency appeal before getting what they are entitled to.

More : fcw.com

The company you’ve worked at for over 20 years just gave you a pink slip. They’ve politely couched your dismissal by telling you they were under financial pressure and difficult choices had to be made. But you don’t think your performance has slipped one bit and suspect the only reason you’re getting the heave-ho now is because you’re over 50 and earn a handsome salary.

Maybe you have a different beef with your employer. You’re an African American who has been repeatedly passed over for a promotion, even though your sales numbers consistently top the department. Or you’re a woman whose problems can be traced back to when you rejected your boss’s advances. Perhaps you’re just squabbling over a performance review or bonus.

If you think you have been fired without cause, sexually harassed, discriminated against, or are the victim of a less heinous infraction, who can you confide in–especially if you’re not represented by a union? You could go to court or file charges with the Equal Employment Opportunity Commission or state human rights commissions. But court battles and agency claims may take years, and lawyers are expensive.

OUT OF COURT. There is another option: Many companies are instituting so-called alternative dispute resolution, or ADR, which is a formalized program. The entire process is sped up because court is avoided. Alcoa, Brown & Root, Fairchild Aircraft, Levi Strauss, and BUSINESS WEEK’s parent, The McGraw-Hill Companies, are a few of the employers that have, or are in the process of implementing, an ADR program.

Although ADR plans vary, many incorporate an open-door policy in which workers having problems with a supervisor can talk to other managers up the ladder. Some companies gather up a panel of your peers to hear a complaint. But most programs rely on mediation (a third party works with all individuals to devise a solution) and, as a last resort, arbitration (an arbitrator hears competing arguments and imposes a final solution), to try to resolve complaints quickly, confidentially, and impartially.

More : businessweek.com

ADR is not mandatory in the UK, save where agreed by the parties in contract (although there have been orders made by individual judges in exceptional cases). That said, the use of ADR is now firmly enshrined in the English Civil Procedure Rules. The court has a positive obligation to encourage parties to use an ADR procedure if the court considers it appropriate and to facilitate the use of such a procedure. Failure to consider ADR can result in adverse costs consequences. Recent cases have highlighted the importance the court is attaching to ADR.

In April 2002, the Court of Appeal’s decision in Dunnett v Railtrack Plc [2002] 2 All ER 850 highlighted the necessity for lawyers and parties to consider Alternative Dispute Resolution (ADR), failing which a party may be penalised in costs. This decision was not wholly unexpected. In the earlier case of Cowl v Plymouth City Council [2002] 1 WLR 803, Lord Woolf, in his judgment in the Court of Appeal, stated in the context of a judicial review that: “both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves

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If you want a glimpse of the future, go to www.icann.org, the Web site of the Internet Corporation for Assigned Names & Numbers (ICANN). On the left side of the homepage is a section entitled: “Domain Name Dispute Resolution” (DNDR). Enter and you will see a chronicle of one of the most fascinating legal experiments on the Internet.

This is the part of the ICANN Web site that records the organization’s ongoing efforts to resolve disputes over domain names — the confrontations that arise when two competing groups want the same Web-site address. Here, on the DNDR page, you will see the world’s maiden attempt to devise a legal system that can cope with disputes on the global Internet. Last December, ICANN established a formal arbitration process to resolve name disputes in the popular .com, .net, and .org domains. In the nearly 10 months since, more than 1,800 legal proceedings have been initiated involving companies, educational institutions, nonprofits, and private individuals from around the world. The DNDR page (www.icann.org/udrp/udrp.htm) lists every case and every decision, making it the functional equivalent of an online law library.

How is the system working so far? Well, there’s no doubt that it’s fast. So far, more than 1,100 decisions have been rendered. It’s also fairly cheap. It costs about $1,000 to initiate a domain-name proceeding. The arbitrators are provided by four private, alternative dispute-resolution groups: the World Intellectual Property Organization, the National Arbitration Forum, Disputes.org/eResolution consortium, and the CPR Institute for Dispute Resolution.

MIXED BAG. Are the rulings just? That is a tougher question. “The decisions are a mixed bag. You see some good ones and some bad ones,” says Jamie Love, of the Consumer Project for Technology in Washington, D.C., which has set up a Web site that’s monitoring the domain-name dispute-resolution process and critiquing some individual decisions (www.cptech.org/ecom/icann/domaindisputes/domaindisputes.html).

One fear that has been expressed by Love and others is that over time, the system will favor plaintiffs. Because plaintiffs pay for the dispute-resolution provider, there would seem to be a financial incentive for the providers to gain a reputation for siding with them. It’s worth noting that as of Sept. 26, plaintiffs had prevailed in 880 out of 1140 cases.

Another concern is that the decisions are sometimes inconsistent. In some cases, for example, arbitrators have allowed the person or institution holding a .com name to evict the owner of an identical .net domain because of the “likelihood of confusion.” In other instances, arbitrators have rejected this theory. A big reason: the fact that there is no established body of precedent to guide decisions. “I assume that there was inconsistency in the early days of the English Common Law as well,” says David Post, a Temple University law professor who is a partner in the Disputes.org/eResolution consortium. He also is one of the co-founders of www.icannwatch.org, which has been monitoring domain-name dispute-resolution proceedings.

The domain-name arbitration process will certainly evolve. ICANN plans to review its experiment later this year and make modifications if necessary. New domains with their own rules — such as .union or .shop — may be adopted. But the lessons that are being learned today on the DNDR page are likely to shape the Internet’s legal system for years to come.

Source : businessweek.com

M2 PRESSWIRE-16 November 2000-US DOT: Secretary Slater announces Interim Policy on Alternative Dispute Resolution (C)1994-2000 M2 COMMUNICATIONS LTD

RDATE:15112000

U.S. Transportation Secretary Rodney E. Slater today announced an Interim Statement of Policy on Alternative Dispute Resolution to further the department’s commitment to expand the use of consensual resolution of disputes to avoid costly litigation and lengthy administrative processes.

“President Clinton

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Leading Legal and Insurance Industry Experts Featured at Day-Long Summit

Highlighting Current Trends -

GREAT NECK, N.Y., Sept. 6 /PRNewswire/ —

clickNsettle.com, Inc. (Nasdaq: CLIK) — the leading global provider of web-enabled dispute resolution services — announced today that it will host the 2000 New York State Alternative Dispute Resolution Conference on Thursday, September 21

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David A. Larson, ed. 1999. CCH incorporated. 72p. ISSN: 1525-7088. $199/year. Quarterly.

This new periodical was first published in June 1999. According to the editor’s statements, the journal “seeks to provide human resource and dispute resolution professionals with an in-depth look at the latest alternative dispute resolution (ADR) practices

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THE MINISTRY of Justice nd the Disputes Resolution Foundation (DRF) have signed a Memorandum of Understanding (MoU) to further cement the relationship between the two entities.

At the signing ceremony held recently at the ministry’s New Kingston offices, signatories Carol Palmer, Permanent Secretary in the Ministry, and Novar McDonald, chairman of the Board of the Disputes Resolution Foundation, agreed that the document signalled the deepening of the use of alternative dispute resolution methodologies in the justice system.

“The Ministry of Justice has resolutely committed itself to the establishment and use of alternative dispute resolution techniques, as a means of promoting peace in the Jamaican society,” Mrs. Palmer said.

The six-fold objective of the MoU includes promoting the use of alternate dispute resolution and restorative justice in Jamaica; continuing budgetary support to the DRF and supporting the work of the DRF through partnerships with international and local donor agencies.

Source : jamaica-gleaner.com

M2 PRESSWIRE-10 February 2000-US FTC: FTC, Commerce to host public workshop to explore online dispute resolution; Alternative dispute resolution for consumer transactions in the borderless online marketplace to be explored (C)1994-2000 M2 COMMUNICATIONS LTD

RDATE:09022000

Washington — The Federal Trade Commission and the Department of Commerce announced today they will host a workshop to explore the use of alternative dispute resolution mechanisms for consumer transactions in the borderless online marketplace. According to a Federal Register Notice to be published this week, the workshop aims to begin an open discussion

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M2 PRESSWIRE-30 April 2002-US FAA: FAA’s Office of Dispute Resolution wins award for its streamlining processes (C)1994-2002 M2 COMMUNICATIONS LTD

RDATE:04292002

WASHINGTON — The U.S. Department of Transportation’s Federal Aviation Administration (FAA) has received an award from the Office of Management and Budget (OMB) for its outstanding Federal Procurement Alternative Dispute Resolution program.

The award recognizes the

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Name: Steven P. Dinkin.

Title: President.

Organization: National Conflict Resolution Center.

Mission of organization: NCRC provides and promotes collaborative dispute resolution to individuals, organizations and society through education, training and client services.

Telephone: (619) 238-2400, ext. 219.

Web site: www.ncrconline.com.

Founded: 1983.

Milestone: In 2004, the San Diego Mediation Center was renamed the National Conflict Resolution Center.

Annual income: $1.9 million.

Expense allocation: 82% of NCRCs expenses are program-based.

Corporate support: 3.17% of total revenue is derived from corporate sponsorship.

Corporate supporters: AT&T, Bailey Gardiner, Eastridge Group of Staffing Cos., M.W. Steele Group Inc., Qualcomm Inc., Recon Environmental Inc., San Diego National Bank, JWalcher Communications, San Diego Gas & Electric and Scripps Health.

Board

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