Join the new Section on Dispute Resolution of the New York State Bar Association!

The New York State Bar Association has launched a new section on dispute resolution. Membership is FREE to any New York State Bar Association Member. If you are interested in joining email drs@nysba.org for immediate membership and participation. If you aren't a member of the NYSBA, it's only $10 for law students to join and comes with many other benefits! Visit www.nysba.org for more information.

Update from NYSBA DRS Committee Meeting

To Dispute Resolution Section Members:

As discussed at last Thursday’s meeting of the DRS Executive Committee, below are links to the report and appendices of the IP Law Section's Proposal. The proposal, in sum, is to create legislation and rules providing parties seeking to prosecute a patent with the right to compel arbitration, in lieu of district court review, of a PTO adverse determination. You may read them at www.nysba.org/IPproposal and www.nysba.org/IPappendices

Many thanks and best regards.

Simeon

Simeon Baum, Chair

Dispute Resolution Section

Go to www.nysba.org to see upcoming events,
access section publications, blogs and much more.

Upcoming ABA teleconference on Mediation

On October 14th, the ABA is sponsoring a teleconference and webcast on the findings of a task force on mediation. This will be an interesting and valuable presentation.
More information is available here.

Writing Competition: Conflict Prevention & Resolution Awards

Do you enjoy writing? Do you like solving problems, sometimes even before they start? If so, you should enter the 2008 International Institute for Conflict Prevention and Resolution Writing Competition.

It features a category dedicated to law student entries and the law school's Writing Center is happy to assist you prepare your submission and make the deadline which is Oct. 31. You can get additional details about it here.

Internal Competition Information

Many thanks to all those who showed up for DRS Orientation on Wednesday afternoon. If you have any questions that you didn't get to ask, feel free to post a comment here or on our google group site.


We have posted a sign-up sheet for the Internal Competition on the google group site: here. Please sign yourself up. If you have a teammate, please sign him or her up as well. If you don't, that is not a problem. We will pair any singles when we distribute the Internal Competition problem.

ABA Competition Opportunity

The St. John's Dispute Resolution Society participated in last year's ABA Representation In Mediation Competition. The competition was held at Roger Williams Law School in Rhode Island. We had a great time with our hosts, learned a lot about what the judges expected and were able to earn a second place finish. We look forward to entering the competition again this year. I will be posting more information on this year's competition as the deadline to apply approaches.

The NYSBA Dispute Resolution Section's First Meeting is coming up

Save the date: Thursday November 13, 2008 -- Hotel Pennsylvania, New York City

The Dispute Resolution Section's First Fall Meeting and CLE Program -- Exploring Established Techniques, Challenges, and New Directions in Arbitration and Mediation

SJU DRS Orientation Next Wednesday!

Meet the Dispute Resolution Society! (previously the Negotiation Club)

We will host a brief orientation next week. Please join us to learn more about this year's internal and external competitions as well as other opportunities.
Wednesday, August 27th at 3:30 pm in Room 1-15.
We look forward to seeing you there.

Hall Street Associates, LLC v. Mattel, Inc.

Justice Souter wrote the Court's opinion in this case on the finality of arbitration awards, ruling that the grounds explicitly enumerated in the Federal Arbitration Act are the exclusive grounds for vacating, modifying, or correcting an arbitration award and cannot be expanded upon, even by agreement of the parties.

After three years of litigation, the parties in Hall Street agreed to arbitrate their remaining claim. The district court approved the parties’ agreement, which provided for entry of judgment on any arbitration award, but required the court to vacate, modify, or correct the award if the arbitrator’s findings of fact were not supported by substantial evidence, or if the arbitrator’s conclusions of law were erroneous.

When the arbitrator ruled against the plaintiff based on an apparent error of law, the plaintiff moved the district court to vacate the award.

The Supreme Court ruled that vacatur was not available in this case. The Court held that the narrow grounds set forth in sections 10 and 11 of the FAA were the exclusive grounds for vacatur, modification, and correction and that the parties’ agreement improperly tried to expand upon those grounds.

The Court opined that the FAA should be seen as “substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.”

“Any other reading opens the door to the full-bore legal and evidentiary appeals that can render informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,” the Court reasoned.

“The decision recognizes that the sine qua non of arbitration is speed, efficiency, and cost-savings,” says Neal M. Eiseman, New York, cochair of the Arbitration Subcommittee of the Section of Litigation Alternative Dispute Resolution Committee. “The business decision whether to litigate or arbitrate is an either-or proposition; arbitration should not be an opportunity to combine the two,” Eisman says. “To be blunt, parties who arbitrate have agreed to abide by the arbitrator’s legal decision, thereby assuming the competence (or incompetence) of their arbitrators.”

Join The NYSBA!

I encourage all law students to join the New York State Bar Association. It takes just a minute to sign-up (http://www.nysba.org/AM/Template.cfm?Section=Join/), only costs $10 and offers a wide array of benefits. For example, the Dispute Resolution Section is free to join and is offering a great upcoming event: the Fall Section meeting.

Another great resource for law students is the website NYLawyer. I subscribe to the daily email service which provides the latest on what is happening at NY's biggest firms, recent decisions and other interesting stuff.

Litigating vs Settling

Last Thursday's NYTimes featured an interesting article on a study evaluating outcomes after a plaintiff forgoes a settlement in favor of a trial. The study shows that plaintiffs in civil trials end up getting less out of a trial than they would have had they accepted a settlement offer.
I have some theories on why this might be the case:
1. As the article indicates, lawyers have an incentive to try to collect fees that are contingent on winning in court or to bill for all the hours required to prepare and go to trial.
2. Defendants may be willing to offer a premium to plaintiffs in order to avoid trial. Defending oneself in a public forum might lead to embarrassment, mistakes and further litigation or an extended proceeding, which may eventually result in a settlement anyway.
3. Plaintiffs who perceive they have been wronged may attach too high a value to their right to sue.

Here is the article: http://www.nytimes.com/2008/08/08/business/08law.html?em

New Chair for the ABA's Section of Dispute Resolution

Peter Ryan and I attended a great reception to recognize Professor Lela Love of the Cardozo School of Law as the new Chair of the ABA's Section of Dispute Resolution on Thursday, August 7th. http://www.abanet.org/dispute/staff.html

Professor Love is the director of the Kukin Program for Conflict Resolution at Cardozo and a well-known figure within New York's ADR community.
Photos and the school's official write-up are here.

Peter and I caught up with friends we'd made at past law student competitions and got some good tips on what to expect at the Willem C. Vis International Commercial Arbitration Moot. http://www.cisg.law.pace.edu/vis.html

Many thanks to Cardozo for hosting us and we send our congratulations to Professor Love.

Mediation Training

The New York Center for Interpersonal Development's 2008 Basic Mediation Training will be lead by Adam Berner, Esq. Mr. Berner is an experienced mediator and trainer, certified by the New York State Unified Court System Office of ADR and Court Improvement Programs.

This program will provide an in depth examination of the theory and practice of facilitative mediation for participants who are interested in mediating cases, exploring alternate dispute resolution concepts, and building skills to become a knowledgeable practitioner. Key components of the program are:

- Problem solving and negotiation skills

- Conflict management skills

- Gathering information and framing issues

- Development options and formalizing agreements

- Understanding concepts of mediator influence and positive neutrality

This program uses an experiential learning methodology to equip participants with these invaluable skills. Participants will identify and analyze various approaches to conflict management, build their capacity as mediators, and engage in mediation role plays to enhance skills. Upon completion all participants will be eligible to enroll in an extensive mediation apprenticeship program. CLE application pending.

BASIC MEDIATION TRAINING

- This is a comprehensive 30 hour Basic Mediation training, approved by the New York State Office of Court Administration, designed to cover basic theory and skills of mediation.

- Upon completion, participants will be eligible to participate in New York Center’s Mediation Apprenticeship Program.

- This training also meets the Basic Mediation training requirements of the New Jersey Collaborative Law Groups.

CLE Credit Pending

For more information or to register contact:
Liz Bonici – 718-947-4036

Tel 718-815-4557 Fax 718-889-3033 TTY/TDD (800) 662-1220 Website www.nycid.org

Job Opportunities

Below are internship and job listings which may be useful to law students and recent graduates.

__________
Intern (Unpaid), Northern Virginia Mediation Service, Fairfax VA
Northern Virginia Mediation Service (NVMS)provides the entire community with accessible, affordable and appropriate conflict resolution and education services. We help people find collaborative approaches to achieve acceptable and enduring outcomes.
We offer Family, Civil, Community and Commercial Mediation. NVMS also offers training workshops regarding topics such as negotiation, facilitation, leadership development, conflict resolution etc.

Interns work with the Family Mediation Program Manager to support case and program management, including intake interviews, scheduling, mediator assignment, special projects, and policy development.

Interns have the opportunity to participate in NVMS training workshops (see list at http://www.nvms.us/schedule.htm and include mediation, negotiation, and facilitation skills)offered during the internship period at no cost.

Contact: Lauren Donovan Phone:703-993-3656, Fax: 703-993-3551, E-mail: communitymediation@nvms.us, URL: www.nvms.us

__________
Program Coordinator, Community Mediation Center, Bozeman, MT
entry-level position, Salary: $15.00 (Hourly Wage), Part-Time, Min Experience: 0-1 Year
The Program Coordinator is responsible for coordination and management of the Gallatin Valley Youth Justice Councils (YJC), Minor in Possession Impact Panels (MIP), Victim Offender Mediations (VOM) and Peer Mediation. Currently, Youth Justice Councils take approximately 70% of the time on the job, Minor in Possession and Peer Mediation 10% each and VOM 0-5%. http://cmcmontana.org/pdf/programCoordinatorApplicationPacket2008Jun.pdf

Contact Person: Connie Campbell, ccampbell@cmcmontana.org, Phone: 4065228442, Fax: 4065868745, http://www.cmcmontana.org/about us/careers

__________
Director, VCS Center for Conflict Resolution, New York, NY

General Scope of position: New City, NY non-profit organization seeks a qualified person who is a proven leader in the field of Conflict Resolution and Alternative Dispute Resolution to manage a community mediation program that empanels volunteer mediators who are assigned to court-referred and community cases. This is a full time, senior management position in a comprehensive, social justice oriented family service agency. The Director supervises program staff, manages several contractual programs and has some additional agency-wide responsibilities. The Director represents the Center for Conflict Resolution and the agency throughout the county and the state, serving on committees, coalitions, and other types of collaborative efforts that pertain to the specific concerns in the Center and to the mission of the agency as a whole. The Director reports to the Executive Director. VCS is an EOE.

Required Qualifications and Skills: Masters Degree ; Proven Managerial Experience; Valid driver's license and own transportation; Working knowledge of the Field of Conflict Resolution; Communication, written and verbal; Community Organizing; Program Development; Grant writing; Personnel and Volunteer Management; Public Speaking

Preferred Capacities:Certified Mediator in the State of New York or Significant Mediation Experience Certified Mediator Trainer in the State of New York or Significant Mediation Training Experience; Bi-lingual/Bi-cultural

Benefits: Salary: mid-to-high 50's; Generous paid vacation, personal and sick time; Health and dental insurance; cafeteria plan; direct payroll deposit;

Please send resume and salary requirements to: VCS Inc.; 77 South Main Street; New City, NY 10956; Attn: D. Murnion

__________
Court Mediator, Community Mediation, Inc, New Haven CT
Position Requirements: Applicant must possess effective communication and interpersonal skills; bilingual (English/Spanish) ability a plus. Mediation experience and/or mediation training highly desirable. Applicant should have good computer skills and be detail-oriented and self-directed. 37.5 hours per week with flexible scheduling; some evening and weekend work expected. Salary range: $28,000 - $30,000, with benefits, depending on experience. Starting 09/02/08. Minimum two-year commitment.

Responsibilities: Mediates cases in CM's court, neighborhood and family programs.; Works in the Superior Court on a regular basis each week.; Develops cases involving adults and youth.; Assists with record keeping and mediation case data entry. Works closely with other staff, especially the Court Coordinator. Assists with mediation trainings and conflict resolution workshops. Assists with outreach and public education.Reports to CM's Associate Director.

Please send resume and cover letter to address below, or e-mail both to kathy@cmediation.org by Friday, July 25. Community Mediation, Inc. 32 Elm St. New Haven CT 06510. Phone: 203-782-3500 Fax: 203-782-3503 www.community-mediation.org

Court of Appeals Decision in Hauzinger Case

The NY State Court of Appeals recently decided Hauzinger v Hauzinger (available on Westlaw at: N.E.2d, 2008 WL 2519811 (N.Y.), 2008 N.Y. Slip Op. 05781), a case concerning confidentiality between parties and mediators. During the course of their divorce, the Hauzingers retained a mediator. The mediator's Agreement to Mediate included an "opt-out" of confidentiality clause if both parties consented to waive confidentiality, allowing the mediator to communicate with any third party about the mediation and release documents.

The Court of Appeals held that the husband in the case had executed a waiver releasing the mediator from confidentiality and that the wife's subpoena was a waiver of her confidentiality. Therefore, because both parties to mediation waived confidentiality, the mediator could not assert it.

The reason that mediators throughout NY followed the case closely is that the confidentiality of mediation proceedings is considered important to attain the level of candor that may be required. the Court of Appeals specifically refused to address the broader question of confidentiality in mediation, leaving the limits of mediation confidentiality unsettled in New York, particularly in the context of divorce mediations.