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California Business Practice is an online student-managed magazine about current topics in California business law. Our mission is to create a practical resource for practicing attorneys and other business professionals.
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International Academy of Dispute Resolution September 29, 2016 I am honored to serve as President and hope that during my tenure we can find ways to ensure the continuation of our eﬀorts in a sustainable way. This will require focus on fundraising
The 11th Annual Intercollegiate Mediation Tournament The Mediator Champions from Boston University This past November INADR hosted the 11 th Annual Intercollegiate Mediation Tournament at Drake University Law School in Des Moines, IA. Thirty-two teams from nineteen schools around the nation participated in the tournament. Prior to the tournament students were given the opportunity to attend, and participate in, mediation and advocacy training provided by some of the top mediators and ADR professors around. Over the two days of competition students acted as mediators, advocates, and clients in three preliminary rounds of competition. The top four teams in each category (mediator and advocate/ client) then competed in the fourth and nal round of competition. The tournament was a great success due to the efforts of so many, but especially due to the efforts of the INADR Undergraduate Mediation Tournament Board chaired by Prof. John Rink, the tabulation talents of Prof. Bradley Bloch and Prof. James Houlihan, Drake University Law School, and the more than fty individuals who volunteered their time to judge at the tournament. The University of Wisconsin – Madison, and Gainesville State College both had great success in their debut appearances at this year’s tournament. In the mediation category rst place was awarded to Boston University, followed by Loras College, University of Wisconsin- Madison, and the University of Wisconsin-Milwaukee. The rst place award in the advocate/client category was earned by the University of Texas-Dallas, followed by another team from the University of Texas-Dallas, Drake University, and Gainesville State College. In addition to a substantial amount of hardware, including the very large travelling trophies, the top team in each category received an invitation to the International Law School Mediation Tournament in London. The complete results of the tournament, including individual awards, can be found on our website www.INADR.org . The 3rd Annual Mediator Dinner On Thursday, February 22, 2011, ADR Societies from the University of Iowa Law School and Drake Law School are hosting the Third Annual Joint ADR dinner in Des Moines. The schools have invited a number of the top mediators in Iowa to attend. Other law schools invited are Creighton and South Dakota. Undergraduate students from various schools in the area, interested in mediation, have also been invited. The format of the program is a short reception before the dinner. During the dinner, the mediators sit at the various tables so that students can ask questions about mediation. After the dinner the hosts, John Lande of Iowa and Luke Hansen of Drake, will hold a question and answer session. Questions will be asked by any of the students and responded to by the mediators at random. Questions have included: • How do you start a mediation practice after graduation from law school – are there any opportunities? • How do you handle the difcult client? • How do you handle the difcult attorney? • Are opening statements of counsel necessary or desirable? • How do you use structured annuities? • What is the best format for a mediation – conference or caucus? • Could you give examples of creative settlements? • Is mediation adversely affecting civil trials and the jury system? • If you can’t settle a case at mediation, what further steps, if any, should you take? • Are there any cases that should be tried in the rst place? • How evaluative are you or should you be as a mediator? • Is it effective to play devil’s advocate as a mediator? Anyone connected with INADR is invited to come. INTERNATIONAL ACADEMY OF DISPUTE RESOLUTION JANUARY 2011
www.adrpeacemaking.org NONCONFRONTATIONAL TECHNIQUES TO SETTLEMENT By Richard M. Calkins Great emphasis has been placed on peacemaking as the strategy of the true mediator. To achieve the level of “peacemaker,” the mediator needs to develop techniques which are nonconfronta-tional and will build rapport and trust in the mediator. Experience has shown that if the parties and counsel trust the mediator, his absolute neutrality and determination to nd a resolution which is fair and reasonable, they will compromise more than intended when entering the process. The following are nonconfrontational techniques to build this rapport and trust. 1. Don’t play devil’s advocate . It is strongly urged that the mediator not play devil’s advocate. It is too easy, when playing devil’s advocate, to get into a “friendly” argument with counsel or a party to make a point, even if you remind them that you are merely playing devil’s advocate. Playing devil’s advocate means that you are taking the other side to a dispute and this is confrontational. A sophisticated attorney and party can perhaps appreciate your role, but more times than not the exercise becomes more confrontational than intended. 2. Testing a party’s position . If the mediator wishes to make a point that is contrary to the position of the attorney or party with whom he is caucusing, the more effective way is to point out that the other side has made this argument (not the mediator) and how can “we” answer it. Or, the jury may wonder about this point, and perhaps we need to address it now. In other words, a position which is contrary to counsel’s or the party’s belongs to the other side and never the mediator. The mediator can still argue it but in the name of the other side. In this way, an argument and confrontation are avoided. 3. Learn the art of agreeing . One of the great techniques of nonconfrontation is to agree. To tell someone, when an argument is developing, that you agree, or you don’t disagree, is the most disarming thing you can say. When the mediator is getting into a “discussion” with counsel, which is turning into an argument, if the mediator will simply say I agree, or I don’t disagree, the argument side of the discussion will end immediately. At a later time, the very same subject matter can once again be discussed and there generally is far less resistance to the point the mediator wishes to make. For the mediator to say that he agrees, or he doesn’t disagree, with something he knows to be wrong, does not mean he is being won over to a wrong position. It means he wants to be supportive and work with the party and counsel to a resolution with which they can live. The “agreeing” builds instant rapport and trust for it also signals that the mediator is neutral and trying hard to understand a party’s position. 4. Be supportive . Rather than question a party’s position which the mediator believes to be wrong, it is helpful if the mediator asks questions which initially show support and interest. By asking supportive questions, while at the same time raising arguments of the other side to test the position, the mediator can build rapport. If a party is taking an untenable position, this will become apparent without the mediator saying so. 5. Be interested in the party’s position . Even if the mediator believes a party and counsel are espousing an erroneous position, the mediator should show, at least initially, interest in it. This can be done by asking supportive questions or reviewing favorable evidence. As the caucuses progress, these arguments can be answered or demonstrated to lack credibility. However, because the mediator demonstrated interest in the party’s position, he can only be complimented for his efforts. 6. Develop a team concept . The mediator should try to build a team concept with each side. In other words, by showing interest in a party’s position and raising arguments that can be made to support it, the party and counsel know that the mediator is on their side and will argue their position to the best of his ability to the other side. This team concept must be developed on both sides – absolute neutrality must always be maintained. Some mediators use the “we,” “our,” “us” approach to develop the sense that the mediator is working for the party. Rather than say, “how would you answer this argument,” you might say, “how can ‘we’ answer this argument,” “what is ‘our’ response going to be,” etc. 7. Develop strategy . With each side, the mediator can work to develop a strategy which will enhance their positions. For example, a party may wish to convey the idea that unless there is signicant movement on the other side, they may terminate the process. A strategy may be to convey this idea without allowing it to sound like a threat. Or the mediator and counsel might discuss a strategy for getting the other side into a certain range for settlement. Counsel will appreciate any suggestions the mediator has for the strategy they should use. Developing strategy likewise develops rapport and trust because it shows interest. 8. Be a good listener . The mediator should be a good listener and allow the party or even the lawyer to vent if this is needed. In this setting, it is better that the mediator merely listen and not try to answer any erroneous statements or defend the other side if they are being attacked. By being a good listener the mediator is again showing interest. 9. Be interested in the parties and counsel . It is helpful, to the extent possible, if the mediator can show interest in the parties and counsel themselves. Discussing children, grandchildren, sports, etc. demonstrates that the mediator is interested in the persons themselves and is not there just to force resolution of their problems. Showing personal interest in the welfare of a party who has been injured builds strong rapport. INTERNATIONAL ACADEMY OF DISPUTE RESOLUTION WINTER 2010
www.inadr.org From Left to Right: Ken Frank, David Collins (BPP), Camilla Whitehouse (BPP), H. Case Ellis, and Ali Nouraei (BPP) at the International Law School Mediation Tournament 2nd Annual World Congress The Second Annual InterNational ADR Society World Congress By Dick Calkins On August 13-14, 2010, the INADR co-hosted the 2 nd Annual InterNational ADR Society World Congress. Approximately 75 participants registered for the event, including 16 students. The Congress was held at the Drake Law School Legal Clinic in Des Moines, Iowa. Highlights of the program were the presentation of Rahim Shamji of BPP Law School in London, England, “Cultural Differences, Inventing New ADR Mechanisms,” and Jeff Anderson’s “How Mediation Can Bring Healing In Church Sexual Abuse Cases.” The latter was preceded by a documentary lm entitled, “Deliver Us from Evil,” which received an Academy Award nomination for best documentary in 2008. Jeff spoke of the challenges in mediating sex abuse cases in the church. Another highlight was our president, Case Ellis’, presentation on the future of jury trials and their drawbacks. This two-day event also included workshops in various aspects of mediation. The program was very well received and gave attendees a better perspective of the impact mediation is having. We are already planning our next Congress in late August 2011. Anyone interested in participating on the planning board, let Dick Calkins know at firstname.lastname@example.org or Meghann Sweeney at email@example.com . International Mediation Tournament The First Australian Invitational Mediation Tournament By Dick Calkins On October 8, 2010, a law school invitational tournament was conducted at Murdoch Law School in Perth, Australia. Dick Calkins attended on behalf of the International Academy of Dispute Resolution (INADR). On Friday, October 8, 2010, Dick conducted training for students from Murdoch Law School and Notre Dame Law School. Twenty four students in all participated in the training. Thereafter, three preliminary rounds were conducted, two on Saturday and one Sunday morning, with the nals Sunday afternoon. Ultimately, two teams from Murdoch Law School won the nals. While there, Dick met with Dean Moens of Murdoch Law School, who expressed enthusiasm about the program and participated all day Sunday as a judge, including the nals. He expressed great interest in having an all-Australian Law School Mediation Tournament in 2011. He is looking into this possibility at the present time. In any event, he expects to send two Murdoch teams to the London tournament this coming March. Dick is also in contact with Notre Dame Law School to encourage them to send a team. The experience in working with Australian law students was very positive and worthwhile. They are quite interested in competing internationally and learning more about our program. InterNational ADR Society As Promised: Find the InterNational ADR Society on Facebook and Twitter By Christopher Harris, UNI The InterNational ADR Society recognizes that the internet is changing the way we communicate and share information with one another. The International ADR Society’s priority is to ensure that we strengthen communication between all of our participating societies and all of those interested in learning more about what alternative dispute resolution has to offer. We encourage you keep tabs on what’s happening with our budding organization! Become a Fan on Facebook! Search for: InterNationalADRSociety Share stories and discuss hot button issues of the current alternative dispute resolution industry. Network with other schools who have ADR Societies! Network with other people interested in ADR! Follow us on Twitter! It’s as easy as 1-2-3 1. Click Find People. 2. Search for: IntlADRSociety 3. Follow us! Get the latest news, events, and organizational updates from ADR chairmen and professionals! Email us! We will offer practice case studies at hand ready for email upon request for those interested in practicing mediation and arbitration before regional and national competitions! Send us an email to join our mailing list! If you have any questions about ADR issues, events, or just simply about tips of building a society at your local school email us at InternationalADRsociety@gmail.com ! THE INTERNATIONAL ACADEMY OF DISPUTE RESOLUTION SUMMER/FALL 2010
California Business Practice Issue Two- October 2013 feature article: The Mensing Conundrum California Business Practice Issue Two- October 2013 feature article: The Mensing Conundrum (from le to right) Sean Proehl, Bardia Moayedi, Aaron Duy, Professor Lynne Dallas,