March 2013

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          March 2013 Comminique

          Upcoming Events

          March 19, Career Development
          Queen's BenchThe Women’s Bar Association of San Francisco, fondly known as the Queen’s Bench, will present the CLE program “Careers in ADR: Pitfalls, Challenges and Triumphs from the Trenches.”  CNDR Director Sheila Purcell, along with other ADR professionals from the Bay Area, will address steps to take (and avoid) in becoming a mediator or arbitrator, various ADR training programs, and paths and obstacles to success in ADR practice.  For more information and to register for this event, click here. 

          March 27, Free CLE with Australian Professor
          Patrick CavanaghCNDR will host Patrick Cavanagh, mediator, consultant and Adjunct Professor of Law at Bond University in Australia, as he presents “Commercial Negotiation Tips: Down & Dirty from Down Under” in UC Hastings’ fabulous Skyroom.  As Senior Advisor to the National Mediation Centre in Jakarta, Mr. Cavanagh was responsible for the drafting and implementation of mandatory civil court-annexed mediation programs together with associated judicial training and certification and accreditation schemes for commercial and court-appointed mediators.  Mr. Cavanagh has been involved in over 500 mediations involving commercial disputes throughout Australia, New Zealand and Indonesia.  This event is approved for 1 hour MCLE credit and is free, although an RSVP is required for entry.  Please RSVP to Jolynn Jones, jonesj@uchastings.edu, by March 22nd.

          May 3, The Mediation Society 2013 Public Education Conference
          What is mediation, how did we get here, and where are we going? "Mediation" is now used to describe widely varying stylistic and substantive approaches to dispute resolution.  In light of the widespread misunderstanding of the difference between arbitration and mediation, are we hampering our efforts to move mediation into the mainstream, when we ignore our own definitional standards and principles? This program will offer practical insights into traditional and emerging mediation techniques, will feature recognized mediation experts, and is suitable for both mediators and advocates.  Click here to register.

          May 16, Negotiating Solutions to eDiscovery Problems Symposium
          This symposium will feature some of the foremost experts on this subject nationally, as well as local judges, magistrates and attorneys who are experts in the field. 

          Michael Carbone, Symposium Planning Committee Co-chair, writes: Electronically stored information (ESI) takes many forms, such as email, Facebook, iPhone, iPad, Instant Messaging, Twitter, and electronic records.  All of these social and other electronic media create evidence, and this raises many issues.  What must a lawyer look for?  How and when must it be preserved?  Once it has been preserved, how do we search for it?  How should it be produced?  How does a lawyer frame a request for production?  How should an objection be stated?  How do we apply the rules of evidence with regard to authentication, admissibility, privilege, hearsay and spoliation?  What about information that it is stored in the "cloud?"

          ESI is not used only in cases that are litigated in federal court, or that are classified as complex litigation. The new eDiscovery Guidelines that were announced by the U.S. District Court for the Northern District of California last November apply to "Standard Litigation," not just to large antitrust or IP cases.  The same is true in our state courts.  Regardless of the type of case, lawyers are now expected to be familiar with their client's use of technology.  They are also expected to cooperate with opposing counsel and to negotiate solutions to their eDiscovery problems rather than leave them up to the judge.

          The symposium website with registration information will be on CNDR's website, under ALL PROFESSIONALS, by March 22.

          May 17, "Effective Negotiation" CLE in downtown San Jose
          CNDR presents “Effective Negotiation”, a MCLE program for attorneys and other professionals at the Modria Offices in downtown San Jose.  The program will blend current theory with hands-on skills and an opportunity for insight and practical experience.  Esteemed UC Hastings Adjuncts and practitioners Robert Fries and Jessica Notini promise a fun day with learning you can use at work.  This program is approved for 6 hours of MCLE credit.  For more information, click here.

          Spring Speaker Series

          New FrontiersThe Center is always striving to expose law students and faculty to the various ways alternative dispute resolution can be applied to legal practice.  In our speaker series, “New Frontiers in Alternative Dispute Resolution” we invited practitioners and scholars to talk about the cutting-edge work they are doing within the field.

          Bay Area Collaborative Law activists and family law practitioners, Suzan Barrie Aiken and Robert Terris, Collaborative Lawintroduced the Collaborative Law model on Febuary 6th.  Collaborative Law seeks to promote both distinct advocacy and collaborative roles for attorneys. Clients voluntarily and contractually commit to the collaborative process. A team of experts assist the parties. Trained collaborative lawyers agree in advance to a collaborative process which strictly avoids litigation. If they fail at this effort at settlement they lose the right to represent their client in future litigation.

          Suzan Barrie Aiken is a family law attorney, mediator and collaborative law practitioner with more than twenty years of experience successfully negotiating and mediating family law settlements.  Suzan has been a collaborative practitioner since 1998.  Robert Terris has been practicing understanding-based mediation for 10 years in a variety of family and legal settings.  As both a licensed attorney and family therapist, he offers unique skills in settling legal issues with emotional undercurrents.

          The principles of Restorative Juvenile Justice were presented by David Cherniss and mediator and trainer Susan Stone, both of whom provide programming and mediation services inside the juvenile halls of San Mateo and San Francisco. David Cherniss is the ADR Managing Attorney for the San Mateo Superior Court and developed and implemented the Court’s Victim/Offender mediation program.  Susan Stone is a trainer in restorative justice Restorative Justicepractices for the Neighborhood Courts program through the San Francisco District Attorney’s office, and assists community dispute mediations for the San Francisco Police Department’s Office of Citizens’ Complaints, Community Boards of San Francisco, and the Peninsula Conflict Resolution Center.

          These restorative justice programs bring youth offenders together with their victims to talk about the crime, its impact, and how to repair the harm to all affected, focusing on the needs of the victims and the offenders, as well as the involved community. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions to repair the harm they've done.

          Finally, Janet Martinez, Director of the Gould Negotiation and Mediation Program at Stanford Law School, spoke on Transitional Justice.  Transitional justice refers to measures to redress the legacies of massive human rights abuses including truth and reconciliation programs and other institutional reforms. Ms. Martinez spoke about dispute system design in the international arena, including transitional justice in post-conflict countries and state-to-state dispute handling in international organizations like the World Trade Organization.

          Team News

          The team kicked off its uber-hectic spring schedule by bringing home hardware from the Liberty University National Negotiation Competition in Lynchburg, VA in January.  Despite having their flight from Charlotte to Lynchburg cancelled due to a blizzard, scrambling for a hotel in North Carolina, sleeping for less than 5 hours, taking the first flight the next morning to Roanoke, VA and then driving to Lynchburg (arriving six hours late to the competition), both UC Hastings teams advanced to the Final Rounds, where 2L Robert McBride and 1L Kyle Gertridge took First Place and 3L Kathryn Miller and 2L Nick Yu took a very respectable Fourth Place.

          ICC TeamNext stop on the quest for world domination was Paris, where the International Chamber of Commerce (ICC) hosts the International Commercial Mediation competition.  While UC Hastings did not make the final rounds (which is a story unto itself – ask Clint!), we did bring home two prestigious awards.  2Ls Mike LaFond and Eddy Mata, and 3L Grant Shubin won Best Opening Statements and Best Teamwork.  This was the first year that the ICC handed out individual awards, and UC Hastings was proud to receive two of the nine. 

          It was then off to Detroit, where we competed for the first time at the Great Lakes Mediation Tournament at University of Michigan, Cooley School of Law in Ann Arbor.  It’s amazing the team made it home with all the trophies they won; the plane must have had trouble getting off the ground.  Here’s the recap: 

          Individual Awards:

          1st Place Advocacy – 2L Robert McBride and 3L Elisabeth Aultman
          2nd Place Overall – 1L Ida Khamsi
          5th Place Advocacy - Ida Khamsi and Robert McBride
          5th Place Mediation - Ida Khamsi

          Team Advocacy:
          1st Place - UC Hastings - Robert McBride, Ida Khamsi, and Elisabeth Aultman
          3rd Place - UC Hastings - 3L Grant Shubin, 2L Stacy Boven and 2L Kevin Morrisey

          Team Mediation
          4th Place - UC Hastings - Ida Khamsi, Elisabeth Aultman and Robert McBride

          Team Overall
          3rd Place - UC Hastings - Elisabeth Aultman, Robert McBride, and Ida Khamsi
          5th Place - UC Hastings - Kevin Morrisey, Grant Shubin and Stacy Boven

          Coach Clint WaastedAt this date, we are furiously preparing for four competitions, all happening at the same time next week.  The team will travel to Toronto for the International Competition for Mediation Advocacy, Dublin for the International Law School Mediation Tournament, the far-off magical city of San Francisco for the California Bar Association’s Student Environmental Law Negotiation competition, and Portland, OR for the Lewis & Clark Western Regional Environmental Negotiation Competition.  After that, we get a brief hiatus and then it’s off to Athens for The Negotiation Challenge 2013.

          To learn about the team’s progress through this last gauntlet of competitions, you can check out their Facebook page:  https://www.facebook.com/home.php#!/UCHastingsADRTeam?fref=ts

          Faculty Notes

          Professor Carol Izumi gave a presentation on “The Use of ADR in Juvenile Delinquency Cases” to Supreme Court and Juvenile judges visiting from China on Sept. 14, 2012, as part of a Juvenile Justice Symposium hosted by UC Hastings College of the Law and the Dui Hua Foundation.  As part of their multi-year project on juvenile justice reform in China, Dui Hua sponsored the judicial delegation in the Bay Area for a week, visiting courts, meeting with judges and academics, and attending juvenile justice proceedings.

          Carol IzumiCarol was one of the lead organizers of the 2013 Conference of Asian Pacific American Law Faculty (CAPALF), held at UC Hastings Feb. 1-2, in celebration of the 20th anniversary of CAPALF.  With over 75 leading academics from around the country, the largest attendance ever, the Conference included panels on Asian American legal scholarship, gender representations, and pan-Asian identity and activism, a trial reenactment of the Vincent Chin case, and over two dozen scholarly Work-in-Progress presentations.

          Carol also provided instruction on the design and operation of the Mediation Clinic to visiting attorney Roxane Dimanche, a graduate of the École Supérieure Catholique de Droit de Jérémie (ESCDROJ), the sister school of the UC Hastings to Haiti Partnership, and founder of the school's first legal clinic.  Ms. Dimanche accompanied Carol to San Francisco Small Claims Court to observe Mediation Clinic students in action.

          Melissa NelkenProfessor Melissa Nelken will further the development of a Haitian Mediation Clinic this March by teaching mediation in French to students at ESCDROJ, who will then staff the Mediation Clinic.  Melissa will be traveling with the Hastings to Haiti Partnership (HHP), sponsored by UC Hastings Center for Gender and Refuge Studies.  HHP is an annual delegation in which law students from UC Hastings visit ESCDROJ during Hastings' Spring Break.  The purpose of the annual delegation is to help strengthen the Rule of Law in Haiti through the support of legal education, which now means mediation training!   

           

          Clark FreshmanProfessor Clark Freshman spoke along with other panelists at “The Supreme Court Pinnacle Decision: Construction Defect Arbitration”, an event UC Hastings and the Tom Miller Law group co-sponsored.  The recent ruling by the California Supreme Court significantly alters how construction defect claims are handled, eliminating the rights of most homeowner’s associations to have their cases brought before a judge and jury.  Instead, the Court is enforcing a commonly found binding arbitration provision in many homeowners associations’ governing documents.

          Jason Meek

          Congratulations to Adjunct Professor Jason Meek who recently received a two-year appointment from the Secretary General of the Organization for Economic Co-operation and Development (OECD) in Paris to serve as one of two mediators to the organization.  Jason will mediate disputes and relational conflicts involving individuals and policy teams while developing a fresh world-class conflict management program through coaching, leadership development, and advancement of intercultural competencies.  He will be splitting his time between Paris and San Francisco, so we hope he can continue to work with us in some capacity.

           

          Recap of Fall/Winter Events

          International Guest Speaker, Ales Zalar, former Min. of Justice Slovenia
          Ales Zalar and friendsCNDR was very fortunate to have the opportunity to host Former Slovenian Minister of Justice Ales Zalar as he toured the U.S. on behalf of the U.S. State Department’s International Visitor Leadership Program (IVLP).  Mr. Zalar initially visited UC Hastings in 1999 where he learned about ADR in the U.S. and had the opportunity to visit several different court-connected ADR programs in the area.  After returning to Slovenia, he developed mediation programs and mediator associations for his country.  CNDR Director Purcell assisted with the review of Slovenia ADR legislation and provided training to judges in 2009.  Mr. Zalar also spearheaded international cooperation on legal issues and international exchanges of law professionals to build judicial capacity, combat international corruption and fight organized crime.  Mr. Zalar credited his experience through the State Department’s program for the many innovations he has brought to the European Union and ADR community.

          NorCal ADR Faculty Teaching Conference  
          Ayalet SelaUC Hastings, in conjunction with the Gould Center at Stanford Law School, hosted the Eleventh Annual Northern California ADR Faculty Conference this past February.  Daniel Rainey, Chief of Staff at the National Mediation Board and professor at Creighton University, was the keynote speaker, providing insight and methods to incorporate Online Dispute Resolution in the teaching of ADR classes.  Colin Rule, founder and CEO of Modria, brought us up to date as to where Online Dispute Resolution is going, and Ayalet Sela, JSD Candidate at Stanford University shared her research on Online Dispute Resolution and perceptions of procedural justice.  Rounding out the program was Clark Freshman’s presentation on teaching about bias and Judge Lynn Duryee and Adjunct Professor Matt White led an experiential session on working with the “High Conflict Personality.”   

           

          Last Chance MCLE
          CNDR’s MCLE offering, “Last Chance MCLE: Ethics, Elimination of Bias and Detection/Prevention of Mental Illness through a Negotiation Lens” – designed for attorneys needing to complete those hard-to-get specialized MCLE credits before the deadline of January 31st – was a resounding success.  Attendees were happy to spend a day with us learning didactically and experientially, and we hope to offer it again next year.

          International Consultation

          Egypt

          Egypt - A small group of national ADR experts, including CNDR Director Purcell, were selected to review and comment on an Egyptian draft mediation law. The American Bar Association's International Legal Resource Center (ILRC), in concert with United Nations Development Program and the International Finance Corporation, have lent support to ADR efforts in Egypt and the region.   

          A high level Ministry of Justice Egyptian delegation came to the US and met with some of the ABA experts in NY and Washington DC, while all experts on the committee worked on crafting enhancements to the law.  The proposed legislation incorporates a mix of mediation models including judicial and private, mandatory (for certain cases) and voluntary elements. Egypt is interested in how mediation departments in courts operate, how judges get involved in mediation and manage cases, how private providers are organized and how the profession is regulated.  

          CNDR's Summer Institute on Court ADR Program Design addresses many of these issues and Sheila was pleased to provide feedback and suggestions both from her experience as co-faculty of the Institute and from her 16 years developing and designing court ADR programs in the San Mateo Superior Court.     

          Visiting China professorChina - Visiting Professor Gao Xuequiang of China's Shaanxi Normal University Dept. of Law enjoyed attending many of the CNDR ADR classes and the New Frontiers speaker series. He is interested in US ADR History. When he returns to China he hopes to be in contact with Judges of the mediation pilot program in Donguuan People's Court where Sheila provided technical assistance and training in October 2012.

           

          Hong Kong CommissionerHong Kong - Part of the People's Republic of China, Hong Kong has a Commissioner who plays a role like that of Ambassador. Commissioner David C K Tong visited CNDR in February. He shared that Hong Kong is seeking to serve as an international hub for Arbitration. Hong Kong has a very strong and active ADR community including an exceptional Court ADR program and many private ADR organizations and bodies. The American Bar Association Dispute Resolution Section, in recognition of this vibrant ADR community, plans on offering an ADR Conference in Hong Kong in late October 2013. 

          Spanish groupSpain - This last fall CNDR sent Adjunct Jessica Notini to Madrid where she provided a highly lauded  50 hour Mediation Certificate training. This work was done with help from Leticia  Garcia Villaluenga, the Director of a Spanish ADR Institute in Madrid, the "Instituto Compulense de Mediacion y Gestion de Conflictos" and others. We hope to continue our collaborations with Leticia and the Institute and to expand our trainings to other parts of the globe including Latin America.