Dispute Resolution Section

2016-2017 DRS Boskey Award Recipient

  
Neutralizer Issue 23 - April 7, 2017
2016-2017 DRS Boskey Award Recipient

Congratulations to David S. Weiss, recipient of the 2016-2017 James B. Boskey Award! The Award was announced at the Dispute Resolution Section’s business meeting on April 4, 2017, and a formal presentation of the Award will be made later this year.

The Boskey Award, formerly the ADR Practitioner of the Year Award, was renamed in honor and in memory of the late Professor James B. Boskey of Seton Hall University School of Law. Jim Boskey was an intellectual, humanitarian, law professor and mediator. For ten years before his untimely death in 1999, he published The Alternative Newsletter, a resource guide on Alternative Dispute Resolution that provided a comprehensive window into the rapidly developing field of ADR. He enjoyed a national and international reputation and was considered by many as the voice of the ADR community.

The Dispute Resolution Section presents the Boskey Award annually to a practitioner in recognition of contributions to the field of alternative dispute resolution and the ADR community, as evidenced in the following ways: (1) informing and educating the public about Alternative and Complementary Dispute Resolution techniques; (2) encouraging and promoting reform and modernization of our legal system; (3) improving the relationship between the legal profession and the general public; (4) exemplifying the goals and purposes of the Dispute Resolution Section; and (5) service to the residents of the State of New Jersey. This year’s Boskey Committee received nominations of several highly-qualified individuals, and its decision therefore was not an easy one.

Several of David Weiss’s accomplishments warrant mention: David has in a short time made a substantial mark on the field of ADR, and specifically in New Jersey. He is the founding director of New Jersey City University’s Institute for Dispute Resolution. He is responsible for an ADR program in the Business School of the University, where a diverse student body largely reflects the local community in Jersey City and Hudson County. He has taken mediation and arbitration student teams abroad to acquaint his students with a growing world-wide community of young and talented solution seekers, and they have competed well in competition against more typical, law student teams. His work in that endeavor has been accomplished alongside highly experienced, long-time New Jersey practitioners and teachers in the ADR field.

David is the author of, and the energy behind, the recently enacted New Jersey International Arbitration, Mediation, and Conciliation Act. David led the effort to the Act’s passage by wide bipartisan margins in both houses of the New Jersey legislature. The Act will enable establishment of centers in New Jersey for the mediation of business disputes involving international parties with a connection to New Jersey, and for expedited enforcement of settlement agreements arising out of such disputes. David is himself leading the development of the first such New Jersey International Mediation Center (IMC). It is a fitting year in which to present the Boskey Award to David Weiss.


 

     THE NEUTRALIZER     
          The Dispute Resolution Section Blog          
     Laura A. Kaster and Felicia T. Farber - Co-Editors*    

  

Neutralizer Issue 23 - April 7, 2017
2016-2017 DRS Boskey Award Recipient

Congratulations to David S. Weiss, recipient of the 2016-2017 James B. Boskey Award! The Award was announced at the Dispute Resolution Section’s business meeting on April 4, 2017, and a formal presentation of the Award will be made later this year.

The Boskey Award, formerly the ADR Practitioner of the Year Award, was renamed in honor and in memory of the late Professor James B. Boskey of Seton Hall University School of Law. Jim Boskey was an intellectual, humanitarian, law professor and mediator. For ten years before his untimely death in 1999, he published The Alternative Newsletter, a resource guide on Alternative Dispute Resolution that provided a comprehensive window into the rapidly developing field of ADR. He enjoyed a national and international reputation and was considered by many as the voice of the ADR community.

The Dispute Resolution Section presents the Boskey Award annually to a practitioner in recognition of contributions to the field of alternative dispute resolution and the ADR community, as evidenced in the following ways: (1) informing and educating the public about Alternative and Complementary Dispute Resolution techniques; (2) encouraging and promoting reform and modernization of our legal system; (3) improving the relationship between the legal profession and the general public; (4) exemplifying the goals and purposes of the Dispute Resolution Section; and (5) service to the residents of the State of New Jersey. This year’s Boskey Committee received nominations of several highly-qualified individuals, and its decision therefore was not an easy one.

Several of David Weiss’s accomplishments warrant mention: David has in a short time made a substantial mark on the field of ADR, and specifically in New Jersey. He is the founding director of New Jersey City University’s Institute for Dispute Resolution. He is responsible for an ADR program in the Business School of the University, where a diverse student body largely reflects the local community in Jersey City and Hudson County. He has taken mediation and arbitration student teams abroad to acquaint his students with a growing world-wide community of young and talented solution seekers, and they have competed well in competition against more typical, law student teams. His work in that endeavor has been accomplished alongside highly experienced, long-time New Jersey practitioners and teachers in the ADR field.

David is the author of, and the energy behind, the recently enacted New Jersey International Arbitration, Mediation, and Conciliation Act. David led the effort to the Act’s passage by wide bipartisan margins in both houses of the New Jersey legislature. The Act will enable establishment of centers in New Jersey for the mediation of business disputes involving international parties with a connection to New Jersey, and for expedited enforcement of settlement agreements arising out of such disputes. David is himself leading the development of the first such New Jersey International Mediation Center (IMC). It is a fitting year in which to present the Boskey Award to David Weiss.
_____________________________________________________________________ 
Neutralizer Issue 22 - March 23, 2017
Redefining Risk For Family Businesses: Global Growth in the 21st Century

On March 21, 2017, this multi-disciplinary program co-sponsored by DRS was presented at the New Jersey City University (NJCU) School of Business. DRS Board Member David Weiss, the Founder & Director of The Institute for Dispute Resolution at NJCU, brought together top talent – both local and international - in business, finance, wealth management, law, tax, accounting, arbitration and mediation to address important issues related to operating family-held businesses in a cross-border, minimized risk environment. The Mayor of Jersey City, Steven M. Fulop, opened the event speaking about how advantageous New Jersey’s location is to attract more businesses, and Senator Thomas H. Kean, Jr. delivered the Keynote, speaking on innovative ways for business growth in New Jersey.

Here are some takeaways from the impressive lineup of speakers:

Melissa Spievack, Esq. - Berkowitz, Lichstein, Kurtsky, Giasullo & Grass. LLC.: The key to succession of a family business is to plan early and often. It’s easier for the first generation to make decisions regarding how subsequent generations will affect the business. Employ pre-nups for successful succession, otherwise family wealth will be pieced off to divorcing spouses.

Brad Shalit, Esq. – Taxation & Estate Planning Group Partner at Connell Foley LLP: The focus needs to be on protecting the assets of the business and the owners from liability. Use trusts to protect against divorcing spouses and outside creditors of the individual owners of the business. Structure the ownership of the business in a trust from the outset.

Andrew Silverman – Senior VP/Family Wealth Advisor at Morgan Stanley: For a lot of people their major asset is their business, and different generations have different goals. Structure trusts and separate assets. Look into international markets to hedge our domestic risk. Use asset allocation, diversification and rebalancing of portfolios to have success in the financial markets.

Keith Krauss, Esq. – Chair of the Business Law & Commercial Transactions Group at Genova Burns: When forming a business, prepare as if the business is over. Select a dispute resolution forum, keeping in mind most small to medium-size businesses can’t afford to litigate. Create an operating agreement (not one off LegalZoom). Answer questions up front regarding authority and control, tax, flexibility in governance, daily responsibilities, etc.

Thomas J. Hoberman - Partner and director of Litigation/Valuation/Forensic Accounting Services at WithumSmith+Brown: Most companies in small to medium markets don’t pay attention to Transfer Pricing but should. Transfer Pricing is the sale and purchase of goods and services of two related companies in different jurisdictions.

Senator Thomas H. Kean Jr. - Sponsor of the International Arbitration, Mediation & Conciliation Act.: Arbitration Centers will be the key to the future of businesses in New Jersey, and New Jersey is one of nine states ahead of the curve in this area. We need to compete and beat the others. We are the ones who can make generational change in this state.

David Weiss of NJCU: The International Arbitration, Mediation & Conciliation Act will validate mediation agreements by providing a statutory framework and nexus for bringing an award to another country. The Act offers consistency, predictability & enforceability. It will help the economy of our state by promoting and attracting business. We’re all contributing to policy and growth in New Jersey.

Please use the following link to view the television coverage of this event on NJTV News: http://www.njtvonline.org/news/video/law-makes-nj-attractive-international-businesses/

_____________________________________________________________________ 

Neutralizer Issue 21 - December 21, 2016
Merits-based Review of an Arbitration Award: An ‘Appealing’ Option?

DRS Board Member Theodore Cheng recently published an article in The New Jersey Lawyer entitled: Merits-based Review of an Arbitration Award: An ‘Appealing’ Option?

In this article, Theo discusses the availability of optional rules that parties can adopt in the face of adverse arbitration awards. Essentially, in order to encourage disputants to use arbitration as a dispute resolution mechanism, arbitration providers are offering appellate review processes as part of arbitration agreements. To read the full article, please use the following link: MeritsbasedReviewofanArbitrationAward.pdf

_____________________________________________________________________ 
 
Neutralizer Issue 20 - December 13, 2016
Mediation in International Business Disputes

DRS Board member David Weiss, Founder/Director of the Institute for Dispute Resolution at New Jersey City University, has co-authored an article entitled A Collaborative Process to Resolve International Business Disputes: Mediation Policy as a Global Business Model.

In this article, David discusses the need to create a mechanism for enforcement and recognition of mediated settlements around the world. His Institute for Dispute Resolution has begun this effort right here at home through it’s policy based initiative known as “The New Jersey International Arbitration, Mediation and Conciliation Act, ” currently before the New Jersey Legislature. To read the full article, please use the following link: http://www.mediate.com/articles/WeissD1.cfm

_____________________________________________________________________ 

 
Neutralizer Issue 19 - April 18, 2016
Robert Margulies receives Justice Marie L. Garibaldi Inn of Court Lifetime Mentorship Award - Upcoming Meetings

We want to let you know about several important upcoming meetings. Which are explained below.

And we want you to be aware of a well-earned recognition bestowed on our friend Robert E. Margulies.  On April 14, 2016, Bob was given the Justice Marie L. Garibaldi Inn of Court Lifetime Mentorship Award “For His Generous Support of Individual Mediators and Mediation Practice.”  In both our personal and professional lives, we know people who help others, we know generous spirits and we know people who make a difference.  But it is rare indeed for one person to do all that and all that on a constant indefatigable basis day in and day out with unflagging optimism, enthusiasm, and effectiveness.  That very rare person is Bob Margulies.  We all know him and I venture to say everyone here has been touched by him – taught by him, mentored by him, served by his support of ADR in New Jersey.  Please congratulate Bob on his award. 

Here are the programs:

This Wednesday NJICLE is doing a program on developing your ADR business.  It is for ADR part-time and full-time practitioners at all levels:

Strategies and Challenges for Building an ADR Practice

New Jersey Law Center
1 Constitution Sq. New Brunswick, NJ 08901

April 20, 2016

Time:

9:00 AM - 12:00 PM ET

NJSBA & NJSBA Section/Committee members are eligible for
special discounts - login to see your discounted rate for this program.

Featuring:

Laura A. Kaster, Esq.d
Past Chair, NJSBA Dispute Resolution Section

President of the Garibaldi Inn of Court
Boskey Award Practitioner of 2014

Hon. Raymond T. Lyons (Ret.)
Former United States Bankruptcy Judge for the District of New Jersey
Of Counsel, Fox Rothschild, LLP (Princeton)

Theodore K. Cheng, Esq.
Partner, Fox Horan & Camerini, LLP (New York)

David S. Weiss, Esq.
Weiss & Weiss, LLC (Manville)

participant will be coached on building a practice and will be equipped with strategies and best practices for their entrepreneur toolbox.

SAVE THESE DATES – JUNE 3 ADR DAY and JUNE 4 International Mediation Institute Day – Both focused on the expansion of International Mediation

_____________________________________________________________________ 

 

Neutralizer Issue 18 - Nov. 17, 2015
NJAPM Conference 2015 - Lee Jay Berman

This past weekend, the New Jersey Association of Professional Mediators (NJAPM)—one of our frequent co-sponsoring organizations—held its annual conference themed “Mediators: Setting the Stage and Managing the Show.” Many of our section members were in attendance for this full day of mediation related workshops. Lee Jay Berman, a national leader in the ADR profession, delivered an outstanding presentation on “Impasse is a Fallacy.” We’d like to share some of the key points from his informative and motivating program:

1 - Many of the common causes of impasse on the day of mediation can be prevented by proper preparation beforehand, during the critical Stage of Convening the mediation. The mediator needs to ensure: he/she and the participants are prepared, adequate discovery has been exchanged, a proper location is selected, the right people will be in the room, and time and fee expectations are conveyed.

2- During the Introduction Stage, it is important to explain what mediation is, what procedures you will follow, and what expectations you have of the participants. You must be conscious of your body language, tone of voice and eye contact because the participants will be watching you closely to decide whether they trust you. To avoid an attorney or party from leaving the mediation prematurely, ask “Do we have any time constraints that will keep us from accomplishing our goals?” Try to distinguish the mediation process from the litigation stage by saying, “Today is about the present and the future – where we are going to go from here….”

3- In the Communication Stage, the mediator needs to have control of the room and talk to the participants about being open, creative and problem solving … about “attacking the problem and not the people.” It is in this Stage that the mediator needs to discover the parties’ underlying interests and address them. For example, if a party wants a certain amount of money, find out what they attach to that money. Are they looking to buy something, go somewhere, support someone? Also, the mediator must use this Stage to “prime people for what to expect and anchor them to that behavior.”

4- During the Negotiation Stage, the mediator cannot allow high demands, ultimatums and “bottom line” offers to result in impasse. Seasoned mediators should know that hardball tactics are part of the negotiation process and “final positions” can and do change. These tactics are part of the participants’ negotiating strategy. The parties and attorneys are simply evaluating the case under the present circumstances as they see them. It is the mediator’s role to help them see things a different way.

These were just a few of Lee Jay Berman’s practical tips and suggestions presented at the conference. Hopefully you will find them helpful in your practice.


_____________________________________________________________________ 

 

Neutralizer Issue 17 - July 7, 2015
Is there an Elephant in the Room?

By Laura A. Kaster

This blog will discuss a difficult ethical issue –  sensitive readers are advised.

A recent bankruptcy decision out of Texas has raised a very broad issue about the method of appointment and the disclosures required when judges appoint former judges as arbitrators or mediators.  Its teaching is that neutrals need to disclose and that the method of appointment needs to be transparent and fair.  The use of a “wheel” as is typical in the CDR system of the New Jersey Courts and other panel appointments goes a long way to remedy the appearance of fairness issue but the use of well-known counsel who serve (even who serve without remuneration) by ad hoc selection of judges without the requisite disclosures may raise a red flag.

In In re Smith, 524 B.R. 689 (Bkrtcy S.D. Texas 2015), the Court was asked to toll the time to file pleadings in the bankruptcy to allow the estate to mediate a dispute over distributions from the estate to one of the partners.  A major focus of the decision is whether a mediator is a “professional” under the Bankruptcy Act, 11 U.S.C. § 327(a), and therefore cannot be authorized without prior review by the judge of the need for mediation, the choice of the mediator, and the amount of the fee.  The court held the section applied – and also demonstrated some misunderstanding of and hostility to mediation, suggesting that the experienced lawyers had no need of it to settle a dispute.  But the court examined in some detail the problem that would arise by simply approving the fee and appointment nunc pro tunc.  This issue is not confined to the bankruptcy setting and should give all of us food for thought. 

The court noted that a prime motivation for changes in the bankruptcy law was to avoid cronyism or the appearance of cronyism and that the close relationship among sitting judges required public disclosure and an evenhanded process of appointment when appointing former colleagues:

Allowing sitting judges to preside over cases knowing that their former judicial colleagues will serve as mediators, and earn fees for doing so, without the procedural requirements of § 327(a) would eliminate the protection against judicial overreaching. Removing this protection could create a new opportunity for sitting judges to bestow favored positions on friends and former colleagues. . . .And, as importantly, even if the sitting judge has had nothing to do with the selection of a former colleague as the mediator (as was true in the case at bar), an appearance of cronyism is created: any unsecured creditors hoping to receive even pennies on the dollar for their claims would justifiably be concerned that the premium price the trustee is paying for the ex-judge to serve as the mediator will necessarily mean that fewer dollars, if any dollars, will be distributed to them.  .  .  .   

                                                                                *              *              *

The public record of appointments to be kept by the clerk will provide a means for monitoring the appointment process .  .  .  . [P]ublic recognition of appointments, fairly distributed and based on professional qualifications and expertise, will be promoted and notions of improper favor dispelled. This rule is in keeping with the findings of the Congressional subcommittees . . . . that there were frequent appointments of the same person, contacts developed between the bankruptcy bar and the courts, and an unusually close relationship between the bar and the judges developed over the years. A major purpose of the new statute is to dilute these practices and instill greater public confidence in the system.

524 B.R. at 699.

This case suggests that generally, when courts appoint mediators, to avoid the appearance of favoritism and an unduly close relationship, there should be both disclosure of past relationships and a fair system of rotating appointments from a panel.

Your comments are invited.

Laura A. Kaster

_____________________________________________________________________ 

 Neutralizer Issue 16 - April 2, 2015
Will New Jersey's Mediation Privilege Preclude Malpractice Claims Arising in Mediation?

By Laura A. Kaster

   A recent California case suggests that New Jersey’s commitment to the mediation privilege may have the unintended consequence of barring any malpractice claim that arises as the result of advice given during mediation.  InWillingboro Mall v. Franklin Ave, 214 N.J 242, 71 A. 3d 888 (NJSC 2013), our Supreme Court made clear that it would jealously guard the statutory mediation privilege referenced in Rule 140:40-4(c). The Uniform Mediation Act reflected in N.J.S.A. 2A:23C-4(b) and N.J.R.E. 519(a)(b) sets forth the privilege:

   b. In a proceeding, the following privileges shall apply: 

    (1) a mediation party may refuse  [***27] to disclose, and may prevent any other person from disclosing, a mediation communication.

  (2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

            In Amis v. Greenberg Taurig LLP, the California Appellate Court held that their mediation privilege precluded testimony by either the client or the attorney charged with malpractice about advice given during a mediation, and therefore entirely precluded the malpractice claim. Amis asserted that his attorney’s advice caused him to execute a settlement agreement that converted his company’s corporate obligations into Amis’s personal obligations without advising Amis that he had little to no risk of personal liability in the underlying litigation. The court held that a malpractice plaintiff cannot circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during an underlying mediation. The California’s evidence rule is slightly different than New Jersey’s, California Code section 1115 et seq.3: “With specified statutory exceptions, neither ‘evidence of anything said,’ nor any ‘writing,’ is discoverable or admissible ‘in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be given,’ if the statement was made, or the writing was prepared, ‘for the purpose of, in the course of, or pursuant to, a mediation . . . .’ ” 

While in New Jersey the rule reads:

       Rule 1:40-4(c): 

   A mediation communication is not subject to discovery or admissible in evidence in any subsequent proceeding except as  [***26] provided by the New Jersey Uniform Mediation Act . . . 

  The differences are not very significant and the logic of the Amis case would seem to apply.  This is an interesting development that New Jersey advocates and mediators should note.

_____________________________________________________________________

Neutralizer Issue 15 - March 4, 2015
Announcing Institute for Dispute Resolution at New Jersey City University School of Business
 
Mediation in New Jersey has an interesting new entrant that may accelerate expansion of our mediation market. The New Jersey City University’s School of Business has established a new Institute for Dispute Resolution.   One of our members, David Weiss, is its first Director. It is inaugurating its entry into our ADR community with a free ethics program (2 Ethics CLE credits) to which you are invited.  Joining with the Garibaldi Inn of Court, the Hudson County Bar Association, the NJ Hispanic Bar Association and JAMS, the program with featured speaker Justice Helen E. Hoens, New Jersey Supreme Court (Ret.)

Please consider reserving a spot – instructions are below – for  Ethical Issues in Business Mediation and Navigating your Client’s Concerns -  other presenters are 

Lorraine M. Brennan, Esq., JAMS Neutral; Adjunct Professor Georgetown Law;  Laura A. Kaster, Esq. Vice-President of the Garibaldi Inn of Court; Robert E. Margulies, Esq., Executive Director of the Garibaldi Inn of Court; Adjunct Professor Rutgers Law;Distinguished Neutral; David S. Weiss, Esq., Visiting Scholar & DirectorNew Jersey City University School of Business Institute for Dispute Resolution (IDR)

When
Monday, March 30, 2015

Check -in
5:00 p.m.

Light refreshments served.

Program
5:30 p.m.

Cocktail reception to immediately follow.

Where
Brennan Courthouse Courtroom of the Hon. Mary K. Costello, P.J. Cv.

583 Newark Ave., 2
nd Floor,
Jersey City, NJ 07306

______________________________________________________________________________________________________________

Ethical Issues In Winning A Business Mediation: Please tear off and return to the Hudson County Bar Association, by mail 583 Newark Avenue, Jersey City, NJ 07306 by fax; 201-798-1740 or by email events@hcbalaw.com no later then March 23, 2015. Spaces are limited.

Attendee Name:

Firm Name:

Email Address:

Phone Number: Fax Number

Course Description

Mediation is a necessary tool in today’s dispute resolution landscape.

Earn two (2) NJ/NY CLE Ethics Credits in an interactive program with top flight instructors, including party tactics, confidentiality, self-determination, informed consent and mediation vs. lawyer “Ethics Codes” as applied.

_____________________________________________________________________

Neutralizer Issue 14 - November 21, 2014
NJAPM Conference 2014 - Advanced Micro-Intervention Skills with Douglas Noll, J.D., M.A.
 
Last weekend one of our frequent co-sponsoring organizations, the New Jersey Association of Professional Mediators, held its annual conference. We’d like to share one of the helpful techniques for mediators taught by presenter Douglas Noll, J.D., M.A., in his Advanced Micro-Intervention Skills workshop.

Mr. Noll explained that a mediator can use “framing” as an effective technique for dealing with someone’s strongly held beliefs. Since beliefs are expressions of emotion, they are not grounded in reality. If we start with the premise that a person uses a frame to create his/her own reality, then we can envision a window frame with a person looking through that window, seeing what he/she wants to see, and excluding everything else. The person uses the frame as a constraining mechanism to block out anything outside of the frame that he/she doesn’t like or want. By framing situations, attributes, news, issues and actions, a person sees only the information the frame allows him/her to see. In other words, the frame is essentially the person’s own belief structure that helps them navigate their own reality.

So how can a mediator work with people who have framed their own realities? Mr. Noll demonstrated that a mediator can re-frame the problems faced by the parties, as well as their choices and consequences. By using the re-framing technique with parties and/or attorneys, the mediator can control the mediation conversation by what he/she frames and how he/she frames it. Mr. Noll offered an example of how a mediator could re-frame a problem to help plaintiffs get a more realistic view of their case. The mediator might say, “Suppose you did not have this lawsuit, how much would you be willing to buy it?” Or to a defendant, the mediator could ask, “If you weren’t involved in this lawsuit, how much would someone have to pay you to endure it?”

To sum up, mediators may not be able to change peoples’ entrenched beliefs, but they can use the framing technique to invoke peoples’ reasoning ability and engage the part of the brain that allows them to objectively evaluate the problem at hand. 

_____________________________________________________________________

Neutralizer Issue 13 - October 22, 2014
The Dispute Resolution Section recognizes and applauds national CONFLICT RESOLUTION WEEK!!!

 
The mission behind this special designation is to celebrate and draw attention to peaceful resolution of conflict. 
 
See how a flash mob showed how “You Can Work It Out” in this fun video:  
 
Click here to watch "You Can Work It Out"

Please check out the proclamation at the end! 

_____________________________________________________________________

Neutralizer Issue 12 - September 12, 2014
Family law practitioners need to be aware of two significant bills signed into law this week by Governor Christie: The New Jersey Family Collaborative Law Act and Alimony legislation.
The New Jersey Family Collaborative Law Act defines and establishes criteria for the family law collaborative process. It enumerates the elements to be contained in a family collaborative law participation agreement, and specifically states that “All participants in the family collaborative law process understand and agree that the process is intended to replace litigation....”   This Act also establishes privileges for parties, nonparty participants and others concerning collaborative law communications, and enumerates exceptions to the privileges. This Act takes effect 90 days after its enactment and can be found in its entirety at:  
New Jersey Family Collaborative Law Act
 
    The new statute concerning Alimony enumerates certain factors considered by the court in determining the amount and duration of child support and the types of alimony which may be awarded as well as factors considered. Most significantly, the statute establishes durational limits for alimony and provides for “open durational” alimony. It also defines cohabitation and includes factors used in determining the modification or termination of alimony. This legislation takes effect immediately and can be viewed at: Alimony Bill
_____________________________________________________________________

Neturalizer Issue 11 - June 6, 2014
CONGRATULATIONS TO LAURA KASTER - Recipient of the 2014 James B. Boskey ADR Practitioner of the Year Awar
d

Laura was bestowed with this well-deserved honor during a special ceremony held on June 6th at ADR Day 2014. The Boskey Award is given in recognition of achievements in informing and educating the public about Alternative and Complementary Dispute Resolution techniques; encouraging and promoting reform and modernization of our legal system; improving the relationship between the legal profession and the general public; exemplifying the goals and purposes of the Dispute Resolution Section, and for service to the residents of the State of New Jersey.

Among her many accomplishments, Laura is Past Chair of the Dispute Resolution Section of the NJSBA, a Master and Vice President of the Marie Garibaldi Inn of Court, a Founding Member of the New Jersey Chapter of the National Academy of Distinguished Neutrals, a Fellow of the College of Commercial Arbitrators and a charter member of The New Jersey Academy of Mediators & Arbitrators. She is also an adjunct professor of Dispute Resolution Processes at Seton Hall Law School, a CEDR Accredited Mediator, a certified mediator by the International Mediation Institute, as well as a frequent speaker, lecturer and trainer in the dispute resolution field.

We greatly appreciate all of her hard work and dedication in the promotion and advancement of ADR. Please join us in congratulating Laura on this outstanding achievement!!!

_____________________________________________________________________

Neutralizer Issue 11 - April 23, 2014 - For those of you who could join us last night, thank you. We were all privileged to attend a joint meeting of the Dispute Resolution and Construction Sections and a stellar presentation on a critical dispute prevention mechanism that has been adopted in the construction industry and is beginning to get wider traction: the Dispute Resolution Board. The Dispute Resolution Board is usually a 3-person panel of neutral experts chosen by the contracting parties under the terms of their agreement at the beginning of major projects, it sits regularly throughout to anticipate and diffuse potential disputes. Suzanne McSorley moderated and organized the panel, which joined us from Miami and NY – Deborah Mastin, Esq., Law Offices of Deborah Mastin, PA, Miami, FL and Jayne Czik, general gounsel, Citnalta Construction Corp., Bohemia, NY.
 
This topic of embedded methods for preventing disputes is one engaging the profession as a whole.  CPR has developed some new protocols in this arena and we previously had presentations on the evolution of the ombudsman.  Stay tuned.
 
On a separate note, the issue of confidentiality in arbitration is also getting attention.  Check out the link below:
 
http://appropriatedisputesolutions.com/site/go-bare-to-protect-your-confidences/

_____________________________________________________________________

Neutralizer Issue 10 - March 25, 2014 - The New Jersey Council of Collaborative Practice Groups has been working since 2012 with the NJ Law Revision Commission to draft a bill defining Collaborative Practice for separating and divorcing couples in New Jersey. Assisted by their lobbyist, Valerie Brown, members of the Council have met with legislators to promote the NJ Family Collaborative Law Act. Under the sponsorship of Majority Leader Sen.Loretta Weinberg, Bill S-1224 was reviewed and released by the Senate Judiciary Committee to the Senate Budget and Appropriations Committee on March 24, 2014. The Act defines the process by the signing of a participation agreement wherein a couple selects attorneys on a limited representation basis for the sole purpose of negotiating an agreement. The Act creates the privilege of  confidentiality similar to the Uniform Mediation Act for all non-party participants such as certified public accountants, certified financial planners, licensed mental health professionals who act as part of the team for the couple. The Act also requires full financial disclosure from the parties. Collaborative practice has has been offered to clients since 2005 starting with Jersey Shore Collaborative Law Group. There are now eight practice groups in New Jersey and hundreds of collaboratively trained professionals.

By Anna-Maria Pittella

_____________________________________________________________________

Neutralizer Issue 9 - March 24, 2014 - 
The US Supreme Court denied certiorari this morning in Strine v. Delaware Coalition For Open Government, Inc., thereby upholding the 3rd Circuit Court of Appeals decision declaring the Delaware Business Arbitration Program unconstitutional for failure to make the arbitration proceedings open to the public.

_____________________________________________________________________

Neutralizer Issue 8 - March 3, 2014

 

Mandatory Mediation in New York?

The New York State court system has proposed a mandatory mediation program in Manhattan Supreme Court that would require every fifth case in its Commercial Division to go to mediation. The Rules of the Program would also require mediators to donate 4 free hours in each matter. In addition, mediators would need to have at least 10 years of experience as a practitioner of commercial law, or for accountants and business professionals, an equivalent level of experience, plus meet the requisite level of training and experience.* Needless to say, these stringent criteria have stirred up a lot of controversy in New York. 

By comparison, here’s a quick look at New Jersey’s current court mediation requirements: In Statewide (non-foreclosure) Mediation Program for Civil, General Equity and Probate Cases as well as the Program for the Mediation of Economic Aspects of Family Law Cases, mediators must have at least 5 years of professional experience in the field of expertise, plus meet Rule 1:40 education and training criteria. Mediators must also provide the first 2 hours (formerly 3) of each matter without charge to the parties.
 
Gauging by the ongoing success of the State Mediation Program in New Jersey, perhaps it’s time to revisit the issue of mediator eligibility as well as the mandated gratuitous time for each case. The free hours requirement has been an ongoing source of strife in the New Jersey mediation community. Many mediators have removed their names from the New Jersey State Court Roster in protest of this mandatory gratuitous time.

The New York judiciary will certainly have to face some of these same issues that have plagued New Jersey mediators for many years: What constitutes adequate mediator training? If mediation is a valued profession providing useful conflict management services, then why shouldn’t mediators be fairly compensated? And now that mediation has become widely recognized as a highly desirable, cost-effective, time-saving means to resolve disputes, does it make sense to maintain the free hours requirement? 

Every mediator who works for free will tell you how frustrating it is to be the only professional in the room who isn’t getting paid, especially when he/she is the one saving the parties an extraordinary amount of time, money and aggravation. But can the judiciary justify forcing people to pay for mediation when they’ve filed a court action? 

We’ll all have to stay tuned to see how these important issues are resolved in New Jersey and our neighboring states.

*For those who are interested, here’s the link to the New York Neutral Application Form:  http://www.nycourts.gov/courts/comdiv/PDFs/adrAppForm.pdf

And here’s a couple of links to some great new articles by Laura Kaster - “Improve Your Judgment Like A Star Athlete Does” http://appropriatedisputesolutions.com/site/blog/ and Christopher Kane  - “Collaborative Use of Technical Experts for Environmental and Construction Dispute Resolution”  http://ccrmediator.com/wp-content/uploads/2013/09/Chris_Kane_Alternatives_December_2013.pdf

_____________________________________________________________________

Neutralizer Issue 7 - Jan. 27, 2014


The question whether manifest disregard should survive after Hall St has caused a circuit split and is impacting both domestic and international arbitration in the US.  Please check out the very interesting amicus brief attached for a good discussion of this issue.

 

_____________________________________________________________________

Neutralizer Issue 6 - Jan. 9, 2014

At the recent DRS program in December 2013, Speaker Fred Ury, Esq. gave our members and guests an eye-opening glimpse into
The New Reality of Internet Legal and ADR Practice.

 

Ready or not, Mr. Ury showed us that the way we do business as legal and ADR professionals can’t help but be affected by the abundance of services, advice and education now offered online—much of it for free. Traditional law practices, ADR services and client relationships are evolving at a rapid pace as technology surges ahead.

Here are some Internet-based tools that may surprise you:

Did you know that prospective clients may be choosing their legal professionals based on their Avvo Rating? Want to find out if you’re ranked? Go to www.avvo.com to see where you fall between 1 and 10.

Are you aware that people looking for low-cost or free expertise are turning to online dispute resolution services to resolve their conflicts? Modria claims to have resolved over 60 million disputes per year. PeopleClaim is a member-funded service which will “Resolve Any Dispute With Anyone, Anywhere.” Square Trade is an online mediating service that helps people resolve problems with online purchases.

Do you know who your competition is? Apparently, more and more people are tapping into advanced technology for their legal guidance. Here are some examples: Neota Logic automates legal questions and answers. Koncision provides document-assembly templates for business contracts. LawPivot advertises that it will give answers to legal questions from 3 real lawyers within 24 hours.

Where is the general public getting its information? There are law courses on iTunes. Open online courses on Moocs. FAQs on Edx. Wills on LegalZoom. Free legal forms and advice on Google Scholar. Films on www.virtualcourthouse.com, etc

And for us lawyers, no longer do we need to hang our shingles at a physical location. Virtual law firms have popped up all over the Internet. Attorneys who want to work from home can eliminate the high office overhead; Attorneys who want to live in Florida can “practice” in New York; Attorneys who want to build a large national--or even global--presence can aggressively blog and maintain relevant websites.

Essentially, we need to recognize that the landscape for legal and ADR services is transforming right before our eyes. If we don’t stay current we risk being left behind in a cloud of cyberdust. 

_____________________________________________________________________


Meet the New Chair of the Dispute Resolution Section

*An Interview with N. Janine Dickey*

Neutralizer Issue 5 - Dec. 11, 2013

 



1-Tell us about yourself and your background in ADR

My natural passions and life experiences all converged towards ADR: my work in Psychology at the University of Virginia; my legal education at Georgetown; my large firm litigation experience; running a family small business; serving in  civic, non-profit and religious organizations. These diverse life experiences taught me that conflict is an inevitable part of everyone’s life.   Assisting people in navigating complex problems and arriving at mutually satisfactory resolutions is both challenging and rewarding.
 
2- What are your top 5 objectives for the DRS this year?

  • I have one primary objective for the year- and it’s a lofty one: to Enhance Professional Respect among Neutrals, Advocates and the Judiciary. My secondary  objectives  all serve to achieve this main mission.
  • Establish Relationships with other NJSBA Sections and Other Legal Organizations 
  • Offer CLE Programs of Value to Advocate Attorneys as well as Neutrals 
  • Improve Communication & Information Outreach
  • Strengthen our Relationships with County Bar Associations

I am proud to report successes in achieving these objectives.
 

  • Thank you Felicia and Laura on your efforts in creating The Neutralizer Blog. It is terrific tool for information outreach. 
  •  Four of our CLE programs have been or will be co-sponsored with other organizations or NJSBA sections. In September we co-sponsored a program on Arbitration with NJ Labor & Employment Relations Association. Our January program on Negotiation is being co-sponsored with the Young Lawyers Division. February’s program is joint with the Garibaldi Inn of Court and NJAPM. April’s program is being co-sponsored with the Construction Law Section. I am working with the Insurance Law Section and the Insurance Defense Committee in putting together a program for the NJSBA Annual Meeting in Atlantic City. I also have preliminary talks underway with the Health Law Section about a joint program for next September.
  • Our  Dec. 3rd program The New Reality of the Digital World featured our guest presenter Fredric Ury and was an eye opener as to the huge impact online legal and ADR services are having and will have on the world of law and ADR.

3- What is your long-term vision for the DRS?

DRS should never be static.  It should evolve in response to whatever new challenges face our legal and judicial system in an ever-changing society.  

4- What are your favorite types of cases to mediate? 

I particularly enjoy cases that involve complex legal analysis. Complex commercial matters, contract disputes of all types, business break ups, employment discrimination. I love the diversity.
 
5- What do you think the new frontiers of ADR will be?

The new frontiers will be to expand the honed skills and services of Neutrals beyond the judicial arena, perhaps by training others in communication and conflict management skills.
 
6- What are the best reasons for attorneys to join this section?

  • Our mediator and arbitrator DRS members are the best in the state;  the peer-to-peer education we give to each other is invaluable. 
  • The DRS  keeps its members updated on  salient topics in ADR.  
  • Our collective expertise and voice can and does makes a difference in the broader legal community. 
  • We are a congenial group of professionals; we truly value and enjoy each other.
  • If you are involved in ADR, we welcome your contribution!

 _____________________________________________________________________

Thanksgiving Greetings from the Dispute Resolution Section
Neutralizer Issue 4 - Nov. 18, 2013


To all of our members, the dispute resolution community and the Bar, we wish you a wonderful celebration of all we have to be grateful for. And in the spirit of the day and as part of our mission to promote civil discourse in every arena, we encourage you to join the Gettysburg Address project conceived by Ken Burns.  On this website, you can see Presidents of both parties and people of all stripes reciting one of our shared treasures that reflects shared values.  And you can learn it and upload a video of your recitation too.

Happy Thanksgiving.

http://www.learntheaddress.org

_____________________________________________________________________

The American Arbitration Association has just issued new Appellate Rules
Neutralizer Issue 3 - Nov. 8, 2013


Click here for the Optional Appellate Arbitration Rules

The purpose of these Rules is to address user concerns that they have no opportunity for real review of bet your business cases.  These rules are not limited to the narrow review typically provided for arbitration decisions in the courts.  Instead, "parties are permitted to appeal on the grounds that the underlying award is based on errors of law that are material and prejudicial and/or on determinations of fact that are clearly erroneous."  A contractual agreement to appeal may be made within 30 days of the arbitration award:
      
Appeals generally will be determined upon the written documents submitted by the parties, with no oral argument.
The Optional Appellate Arbitration Rules anticipate a process that can be completed in about three months. 
The Appellate Panel consists of former federal and state judges and neutrals with strong appellate backgrounds.
Parties may provide for the AAA’s Optional Appellate Arbitration Rules whether or not the underlying award was conducted pursuant to the AAA’s or ICDR’s rules.

We also wish to correct an error in our last blog.  Under the Amended AAA Commercial Arbitration Rules the presumption is that all cases over $75,000 will be mediated.

Mediation
For some light reading:
http://www.adrtimes.com/library/getting-to-yes-with-the-dowager-countess-of-downton

 


_____________________________________________________________________

Important New Arbitration Rules for CPR and AAA
Neutralizer Issue 2 - Sept. 24, 2013


You should be aware of two important developments in the world of administered arbitration – arbitrations supervised by a panel or agency as opposed to ad hoc arbitrations managed by the arbitrator(s).  Both CPR and the AAA have new rules.

The CPR Rules
CPR (the International Institute for Conflict Prevention and Resolution) has for the first time in its history moved into administered arbitration and has issued rules to govern those matters.  CPR is focusing on maintaining party control to the extent possible and is stating that with the Administered Rules, parties only pay for essential administrative functions such as neutral selection, billing and award review–offering a more efficient and cost effective approach. 
And that the
parties will work directly with Arbitrator/Tribunal to increase efficiencies and decrease costs.

One key object of the Rules is to assure the process will take no more than 12 months:
“Pursuant to Administered Rule 15.8, CPR must approve any scheduling order or extensions that would result in a final award being rendered more than 12 months after the initial pre-hearing conference required by Rule 9.3. When such approval is required, CPR may convene a call with parties and arbitrators to discuss factors relevant to request.”

An interesting aspect of the Rules is that in default of other methods specified in the arbitration agreement, the parties designate party appointed arbitrators but the arbitrators may not know who selected them and no ex parte contact is permitted.

Check out the new CPR Rules: http://www.cpradr.org/Resources/ALLCPRArticles/tabid/265/ID/785/7113-Administered-Arbitration-Rules-Effective-July-1-2013.aspx


The AAA Rules
The AAA (American Arbitration Association) has just issued amended commercial arbitration rules effective October 1, 2013.  There are a number of important changes and the AAA Website has a helpful summary.   Among our personal favorites are the changes to Rules 5 and 12 that permit the arbitration to proceed and arbitrators to be selected even when the responding party refuses to appear or participate. In addition the new rules require mediation simultaneous with arbitration process for all cases $75,000 and over, with no additional filing fee, although either party may opt out. And the new rules encourage arbitrators to have the parties – not just the attorneys- attend the preliminary hearing which will serve to allow arbitrators to encourage reduced discovery and efficient timing.  

You can check out the  new AAA Rules here:
http://go.adr.org/commercialrules


We will discuss individual rules in our forthcoming blogs.

_____________________________________________________________________

Announcing The Neutralizer - The Dispute Resolution Section Blog
Neutralizer Issue 1 - Aug. 19, 2013

We would like to introduce our new ADR Blog.  We hope to do interviews, provide case updates, and share other ADR related information.  We invite you to suggest your articles that we may link to or to submit short pieces.  This will be a work in progress.
 

 

Our first issue features three recent New Jersey Supreme Court cases which greatly impact the field of ADR.

NEXT DRS MEETING 

 

Be sure to join us on September 10 at 6:00 PM at the Law Center for a wonderful presentation by Justice William Drier who recently published the New Jersey Arbitration Handbook.   We will be joined by members of LERA – New Jersey’s Labor and Employment Association.

 MEDIATION DEVELOPMENTS

On August 15, 2013, Justice Albin writing for a unanimous New Jersey Supreme Court in Willingboro Mall v. Franklin Ave.  issued a prospective rule relating to mediation: http://www.judiciary.state.nj.us/opinions/supreme/A6211WillingboroMallvFranklinAve.pdf

To be clear, going forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable.” (Slip Op. at 29.)

 In order to preserve mediation confidentiality and to prevent post-mediation disputes about whether a matter has been settled or the terms of a settlement –“if the parties to mediation reach an agreement to resolve their dispute, the terms of that settlement must be reduced to writing and signed by the parties before the mediation comes to a close.  In those cases in which the complexity of the settlement cannot be drafted by the time the mediation session was expected to have ended, the mediation session should be continued for a brief but reasonable period of time to allow for the signing of the settlement. “ (Slip Op. 28-29.)

Willingboro is a must read.  It deals with the subject of waiver of the mediation privilege under the Uniform Mediation Act, N.J.S.A 2A:23C-1 et seq., NJ Rule 1:40-4, and the rules of evidence, N.J.R.E. 519 (a)(a), and provides many practice tips for mediators and advocates in mediation. 

In the case itself, the Court found that the parties had waived the mediation privilege and Willingboro could not assert it after it had “shredded” the privilege.   The Court ruled that an oral settlement had been reached and was binding on the parties.  However, that ruling depended upon a hearing which required the testimony of the parties and the mediator on privileged mediation communications.  The mediator refused to testify unless directed to do so by the court and both parties specifically told the trial court that they had waived the privilege before the court directed their testimony.  Nevertheless, the mediator violated the duty of confidentiality before testifying by submitting a certification supporting Franklin’s motion to enforce the settlement.  Willingboro waived its privilege because it neither objected to the effort to support the settlement without a signed writing nor to the mediator’s and Franklin’s submission of privileged information and by contesting the settlement.

But the Court also found that the certifications filed by Franklin’s attorney and the mediator improperly disclosed privileged mediation communications by referring to statements made during the mediation: “Here the mediator went far beyond merely communicating to the court that the parties had reached a settlement.  The mediator certified to the accuracy of Franklin’s . . . letter, which set forth in eight numbered paragraphs the terms of an oral agreement between the parties . . . . By validating the contents of Franklin’s letter, the mediator breached the privilege.” (Slip. Op. at 23.)  Without Willingboro’s advance consent, these communications of privileged information were improper.  Had Willingboro promptly objected, a different result would have followed.

 

 

ARBITRATION DEVELOPMENTS


There are two new important Supreme Court decisions impacting arbitration. The first deals with waiver of the right to arbitrate and the second addresses enforceability of arbitration against non-signatories.

 

Like Willingboro, waiver was the chief topic in Karen Cole v. Jersey City Medical Center, decided by the New Jersey Supreme Court on August 14, 2013.  (Judge Cuff, PJAD, temporarily assigned, writing for a unanimous court):

http://www.judiciary.state.nj.us/opinions/supreme/A612ColevJerseyCityMedical.pdf

 The Supreme Court affirmed the Appellate Court’s ruling that the impleaded third-party defendant Liberty’s 21 month participation in the case waived its right to claim arbitration was the exclusive remedy.  The decision on waiver is a fact sensitive one and can accommodate the situation involving multiple parties, some of whom are not signatories to an arbitration agreement. A party that intends to invoke its right to arbitrate in a case where another party is a non-signatory to the arbitration agreement may preserve its right by asserting arbitration in its answer, as an affirmative defense, moving to compel arbitration in a timely manner, moving to stay the judicial proceeding, or notifying the other party to the arbitration agreement that its litigation conduct should not be considered a waiver of its right to arbitrate.

Another unanimous Supreme Court case came to us on August 7, 2013, written by Justice LaVecchia , Hirsch v. Amper Financial Services

http://www.judiciary.state.nj.us/opinions/supreme/A912HirschvAmperFinancial.pdf

Although traditional contract principles may in certain cases warrant compelling arbitration absent an arbitration clause, the intertwinement of the parties and claims in a dispute, viewed in isolation, is insufficient to warrant application of equitable estoppel to compel arbitration.

The preliminary question is whether under state contract-law principles there is a valid agreement to arbitrate. This arbitrability analysis underscores the fundamental principle that a party must agree to submit to arbitration. In the absence of an express arbitration clause, courts can compel parties to arbitrate by applying principles of contract law, such as equitable estoppel. (Slip Op. pp. 13-16) 
________________________________________________________________________________________

* Laura A. Kaster is immediate past Chair of the DRS and Felicia Farber is a Director of the DRS and Chair of the Legislative Committee


0 comments
956 views

Permalink

Tag

  • ADR
  • dispute
  • mediation

Comments