Alternative Resolutions Newsletter
January 1998 Vol. 9, No. 3

TABLE OF CONTENTS

• Chair's Corner
• You Are Invited To Attend "ARBITRATION IN THE ADR PRACTICE"
• Membership Application
• Encourage Colleagues To Join ADR Section
• Ethical Puzzler
• Prepare Yourself For Seminars
• 1998 Fall Program
• Nominations Being Accepted For Frank G. Evans Award
• 1998 Council And Section Meetings
• Nominating Committee Deadlines
• 1998 Calendar Of Events
• Book Review: The Tao Of Negotiation
• Book Review: Getting Past No
• Case Law And Legislation Update
• Emerging ADR Markets
• Alternative Resolutions Publication Policies and Policy for Listing of Training Programs
• ADR Section Council Members

CHAIR'S CORNER

by John Phillip Palmer
Chair, ADR Section
"Your Formal Invitation"

You are formally invited to the Mid-Year Meeting and arbitration program on February 7, 1998. The meeting is 10:30 a.m. until 12:30 p.m. and the arbitration seminar begins at 12:30 p.m.and concludes at 4:00 p.m. The Mid-Year Meeting gives you a direct opportunity to meet the Section's Council and to participate in Section business and current issues. Attending the meeting costs you nothing, except your time. The arbitration program will be first rate, it offers you lunch, and the opportunity to learn more about the often ignored topic of arbitration, at a small cost. I look forward to seeing you at the Mid-Year Meeting and at the Arbitration Seminar. Please make plans to attend.

Update

Many of the goals I set for the Section at the State Bar Annual Meeting are being met, many of which I chronicled in the Chair's Corner of the Fall issue of Alternative Resolutions. This is an update of significant events since October 1, 1997 and to press time which is roughly December 15, 1997.

Improve Communication

With the help of former council member Carl Forrester, the web page is under construction and should be operational soon. Look for the website address to appear in the next edition of Alternative Resolutions.

Stress Other Forms of ADR

Liz Wally is working with University of Texas on reducing violence in schools by promoting the use of peer mediation. Contact Liz at 4237 Bluff View Road, Dallas, Texas 75209-2809, (214) 902-0240 or by E-mail at DMSLiz@AOL.com.

Jim Gibson has been traveling throughout the state training attorneys and non-attorneys in juvenile victim offender mediation. For more information or to help, contact Jim at Sam Houston State University, P.O. Box 2059, Huntsville, Texas 77341-2509, (409) 294-1717 or by E-mail at: sls_jwg@shsu.edu.

Pro-Active Legislation

The Council, with assistance from its past co-chair David Cohen, is looking at possible legislation on ADR, specifically at legislation to strengthen enforceability of mediation agreements,

and amending the Texas Arbitration Act to permit arbitration in consumer complaints under $50,000. Drafts of proposed legislation will be discussed at the Mid-Year Meeting, and will be voted upon by the Council at the April meeting.

Assure the Quality of Mediation

At The November 8, 1997 Council meeting, the Council reviewed the status of the Supreme Court Advisory Committee on Court Annexed Mediation. The Supreme Court Advisory Committee has reached a consensus on training requirements and credentialing and a report is due out anytime. Because of the progress of the Advisory Committee, the Council tabled the issue of the ADR Section's proposal on credentialing. It is hoped that the report will be finalized and published for the Mid-Year Meeting and the Texas Supreme Court will want the Section's comments on the Advisory Committee's report.

David Cohen, on behalf of the Section, filed an Amicus Brief in the In re Grand Jury Subpoena Dated December 17, 1997 pending before the United States Court of Appeals in the Fifth Circuit. This brief sought to protect the confidentiality of mediation proceedings in federal criminal grand jury investigations, unless a threshold test is met.

ADR Outreach

Paul Keeper is finalizing the Road Show Mediation Program. It is anticipated a Program will be available for your community upon request.

YOU ARE INVITED TO ATTEND

ARBITRATION IN THE ADR PRACTICE

February 7, 1998

State Bar of Texas ADR Section

1414 Colorado Street, Austin, Texas

MODERATOR: Martin B. Leewright, University of Texas - Denton, Texas

12:30 - 12:40 p.m. Registration, Lunch and Welcoming Remarks

12:40 - 1:10 p.m. Overview of Arbitration

Advantages of Using the Process

Role of American Arbitration Association

Use of Procedural Rules

Helmut O. Wolff, Vice President, Dallas Regional

Office and Service Center

American Arbitration Association

Dallas, Texas

1:10 - 1:40 p.m. Areas of Application

Ethical Obligations in Arbitration

Professor William L. McKee

University of North Texas

Denton, Texas

1:40 - 2:20 p.m. Legal Aspects of Arbitration

Texas General Arbitration in Arbitration

Federal Arbitration Act

Recent Court Decisions Affecting Arbitration

Paul D. Keeper, Esq.

Hohmann & Taube, L.L.P.

Austin, Texas

2:20 - 2:35 p.m. Break

2:35 - 2:55 p.m. Common Law Arbitration in Texas

L.H. Lacy v. City of Lubbock

Hon. Joe R. Greenhill

Baker & Botts, L.L.P.

2:55 - 3:30 p.m. The Texas General Arbitration Act

Past Amendments and Proposed Revisions

Professor Alan Rau

Robert F. Windfohr and

Anne Burnette Windfohr - Professor of Law

University of Texas School of Law

3:30 - 4:00 p.m. Questions for the Speakers and General Discussion

4:00 Conclusion

STATE BAR OF TEXAS
ALTERNATIVE DISPUTE RESOLUTION SECTION
MID-YEAR MEETING AND ARBITRATION SEMINAR

Please join us for the ADR Section's Mid-Year Meeting!

WHEN: February 7, 1998 - 10:30 a.m. to 12:30 p.m.

WHERE: Texas Law Center - State Bar Building

1414 Colorado Street - Austin, Texas

COST: None

TOPICS: General meeting of the Section. There will be a report by the Chair and all committees with business. Planned break outs include: Credentialing; Legislation and Marketing and Mediation.

Arbitration in the ADR Practice

WHEN: February 7, 1998 - 12:30 p.m. to 4:00 p.m.

WHERE: Texas Law Center - State Bar Building - 15th & Colorado Street - Austin

COST: ADR Section member (includes box lunch) $25.00

Non-Member (includes box lunch) $35.00

TOPICS: An Overview of Arbitration; Current Areas of Application; Legal Aspects of

Arbitration; Common Law Arbitration in Texas; and The Texas General

Arbitration Act will be discussed. (Please refer to Agenda on facing page.)

CLE CREDIT: An application has been submitted to the State Bar of Texas for 3.00 hours.

WALK-INS ARE WELCOME. FOR LUNCH PURPOSES, IF YOU ARE PLANNING TO ATTEND THE ARBITRATION SEMINAR, PLEASE MAIL THE REGISTRATION FORM BELOW

BY JANUARY 15, 1998.

Please make payment to State Bar of Texas ADR Section and submit payment and application to:

Paul D. Keeper, ADR Section, 100 Congress, Suite 1600, Austin, TX 78701

STATE BAR OF TEXAS - ADR SECTION

ARBITRATION SEMINAR - FEBRUARY 7, 1998 - 12:30 P.M. - 4:00 P.M.

Name: __________________________________________________

Address: _______________________________________________

City: __________________ State: ________ Zip Code ________

Business Telephone #: ____________ Fax # ____________

 

ADR Section Member: Yes No (Please circle Yes or No)

Amount Enclosed: $ ________________

For more information please contact Barbara Hannon at (512) 478-6683.

STATE BAR OF TEXAS
ALTERNATIVE DISPUTE RESOLUTION SECTION

MEMBERSHIP APPLICATION

MAIL APPLICATION TO:

Paul D. Keeper, Treasurer
ADR Section, State Bar of Texas
100 Congress Avenue, Suite 1600
Austin, Texas 78701

I am enclosing $25.00 for membership in the Alternative Dispute Resolution Section of the State Bar of Texas from June 1997 to June 1998. The membership includes subscription to Alternative Resolutions, the Section's Newsletter. (If you are paying your section dues at the same time you pay your other fees as a member of the State Bar of Texas, you need not return this form.) Please make check payable to: ADR Section, State Bar of Texas.

Name ________________ Public Member ____ Attorney ____

Address ________________ Bar Card Number ________

City ________________ State ____ Zip ________

Business Telephone ____________ Fax ____________

E-Mail ____________

ENCOURAGE COLLEAGUES
TO JOIN ADR SECTION
by Marty Leewright

This is a personal challenge to all members of the ADR Section. Think of a colleague or associate who has shown interest in mediation or ADR and invite them to join the ADR Section of the State Bar of Texas. Photocopy the membership application below and mail or fax it to someone you believe will benefit from involvement in the ADR Section. They will appreciate your personal note and thoughtfulness.

BENEFITS OF MEMBERSHIP

• Excellent Section Newsletter Alternative Resolutions is published several times each year. Regular features include discussions of Ethical dilemmas in ADR, Mediation and Arbitration law updates, ADR Book Reviews, and Calendar of upcoming ADR events and trainings around the State.

• Keep informed on the latest developments in ADR for both ADR practitioners and those who represent clients in mediation and arbitration processes.

• Continuing Legal Education at affordable basic, intermediate and advanced levels through announced conferences, interactive seminars and both non-profit and private training opportunities.

• Truly interdisciplinary as the only Section of the State Bar of Texas which invites members who are not attorneys which adds new interaction and alliances in learning.

• High cost/benefit ratio as you get all this and more for only $25 membership fees per year!

ETHICAL PUZZLER
by Tom Reavely

[This column is the sixth in a series that will address hypothetical ethical problems mediators may face. If you would like to propose an ethical puzzler for future issues, please send it to Tom Reavley, 1301 West 25th Street, Suite 525, Austin, Texas 78705.]

You are mediating a dispute over a shopping center development. Several neighborhood associations have sued to block city zoning approvals. All sides are represented by attorneys in the mediation. After a day of mediation (with a second session scheduled for a week later), you believe the biggest obstacle to settlement is the attorney representing one of the parties; that attorney will not let you speak directly to his clients and insists that all communication from you be relayed through him. You believe a settlement is in the interests of all parties and that the best chance of achieving a settlement depends on you being able to speak directly to the clients. Is it ethical for you to call the clients between sessions and speak with them directly, if they are willing? Is it ethical for you not to attempt such direct communication with the clients (knowing that such contact would jeopardize future mediation work involving the attorney)? Would your answers be different if you had been allowed to speak directly to the clients at the first mediation session, but still believed you needed to speak with them without their attorney?

Peter Chantilis (Dallas): In my opinion it is not ethical for the mediator to call the clients between sessions and speak with them directly even if they are willing, unless you have the permission of their attorney and he is also on the conference telephone call. Future mediation work should never be considered a factor; therefore, it would not be ethical for the mediator not to attempt such direct communication with the clients. The answers would not be different if the mediator had been allowed to speak directly with the clients at the first mediation session.

The ADR statute is of no help with respect to the ethical puzzler posed. Under the ethical guidelines for mediators of the ADR Section of the State Bar of Texas a mediator may make suggestions…, but if the lawyer representing his clients doesn't want you to talk to them, you just can't do it. If you would have covered that in the original general session when you asked permission to be able to talk to everybody, that would be helpful but not controlling. The lawyer could change his mind in a caucus.

Paragraph 13 of the Ethical Guidelines suggests that the mediator should postpone or recess or terminate a mediation process if one or more of the parties is unwilling or unable to participate meaningfully in the mediation process. You could meet also with all the lawyers and see if that will flush out the problem. You can also suggest that the clients meet without the lawyers with everyone's permission.

Sam Graham (Austin): (Note: As a mediator I have always acted quickly using my best instant judgment, without benefit of time to find the correct answer. I approached this puzzler the same way. The following discussion is without benefit of legal research.) Public policy mediations (even if in litigation) differ from disputes that are essentially private in nature because of the controversy's public setting. Since the actors in public policy disputes are always aware of public scrutiny, the mediator may use the threat of public exposure or public scrutiny to discipline over-controlling attorneys. I would not even go forward with the mediation of a public dispute, i.e., zoning controversy, without access to and meetings with representatives of all parties. If access is denied and the mediation stopped, the attorney runs the risk of public discovery that he was the reason for the stoppage. Although the proceedings are confidential and the mediator may not violate this confidentiality, only the most naïve would believe that there will not be any leaks regarding an attorney's overbearing shenanigans with entities accustomed to interacting with the news media are involved. Therefore, this potential public scrutiny is the mediator's most powerful weapon.

Even if the attorney is the only source of the mediator's business, this fact can have no part in how the mediator manages the situation. In as much as the mediator is an advocate for reason (negotiated resolution) and not for any party, nor is the mediator acting as an attorney for any party, I do not think there is an ethical prohibition that prevents talking with a party directly. If I thought it beneficial to the process, I would call a party directly between mediation sessions. Would non-lawyer mediators ever considered it an ethical breach to contact party representatives directly?

Jamie McLeroy (Austin): The rule I follow is: You Dance with Who Brung You. I would never attempt to directly contact a party without his lawyer's permission; moreover, I think a mediator who does this is violating the spirit, if not the letter, of Disciplinary Rule 4.02, which prohibits lawyers from contacting opposing parties who are represented by counsel. Of course, mediators are not representing any party in the dispute, so D.R. 4.02 may not apply, but the courts have stated that the purpose of the rule is to protect parties from the undue influence of attorneys with superior skill and knowledge. A mediator who is also an attorney is subject to criticism for exerting this same type of influence over a party whose lawyer was not given an opportunity to be present.

For further guidance, we can look to the standards for judges governing ex-parte communications. Paraphrasing Canon 3A(5)(b) of the Code of Judicial Conduct: a judge may confer with the parties in an attempt to mediate or settle a case, provided this judge first gives notice to all parties. If a judge has to notify everyone before talking directly to the parties, I think a mediator, at the very least, has the same ethical duty. My answer would not change if I had talked directly to the parties at a prior session.

I believe the appropriate action is to talk to the lawyer privately to try to get him to change his obstructionist tactics. I have found that if I have developed a good rapport with the advocate and am up-front with him about my reasons for doing so, he is usually willing (and often relieved) to let me talk to his clients. Any fear of losing future fees if I don't contact the parties is a moot point given my stated view of the problem, but it would be wrong to take or forego any actions out of fear that a lawyer would not send me more business. Who needs it?

Tom Collins (Austin): The ethical rules that prohibit counsel in litigation from contracting an opposing client without the client's attorney's prior permission should not automatically apply to one serving as a mediator. However, whether applicable or not, I believe it is highly improper (and therefore outside my ethics parameters) for a mediator to attempt to speak directly with a party without counsel present--unless counsel consents in advance (and with consent I have spoken directly with clients many times). My guiding principle is that mediators honor the attorney-client relationship at all cost--even at the cost of a successful mediation. No matter how much I disagree with the advice or analysis being given by an attorney, I will not try to talk to the party behind the attorney's back. There are many ways a mediator can convey to a party that the attorney's approach or analysis is blocking a settlement, but direct contact outside the attorney's presence or awareness is off my radar screen. My answer is the same and even stronger if I have spoken with them and counsel in the mediation because I will have had the opportunity to convey (with care) through my comments, my reaction, my facial expressions the problems being created by counsel to achieving a settlement. A mediator can even seemingly complement an attorney (you are good at playing hardball) in a way that sends a message to the party. There are ways to do this without the attorney necessarily catching on. But picking up the phone afterwards and call the party is improper. If the party calls you, tread carefully.

I do not think it unethical not to attempt a direct communication, and my reasons for not doing so are as set forth above and not because of any risk of no future business from the attorney. Who would want to mediate again with an attorney who will not let you speak in caucus with clients present?! The scenario presented here has never occurred in my practice, and the additional ethical problem it presents for me is whether I would agree to serve or continue as a mediator under this scenario that ties one hand behind my back and has an attorney control the process in such a destructive manner. Indeed, bringing this issue up might be the means I would use in the first mediation to educate the party that counsel is an obstruction to settlement, and to achieve face-to-face contact.

Comment: One of the recurring themes in this column is exploration of the distinction between ethical rules (normally absolute) and best practices (based on accumulated wisdom and experience, but subject to exception based on the judgment of the mediator applied to the specific facts and circumstances). Most would probably agree that it is not advisable to go around a party's attorney in the mediation process if for no other reason than such action will usually make the attorney, the client or both angry and therefore probably backfire. However, there might be situations where the nature of the dispute and the personalities involved convince the mediator that such action is the best or only avenue for moving the process forward. For instance, what if the attorney becomes unavailable and simply cannot be reached during the crucial, time-sensitive phase of a protracted public policy mediation? Is there, or should there be, an absolute ethical prohibition on such conduct by the mediator? This writer has heard one nationally prominent non-attorney mediator of public policy disputes say that he has made such direct client contacts (without counsel's consent) in the past and believes they are ethically appropriate for the mediator. If this position is correct, should there be a different answer to the ethical question depending on whether the mediator is an attorney?

*Tom Reavley is a mediator in Austin, Texas.

[NOTE TO READERS: Please send me your hypotheticals! I am running low on ideas for the puzzler column. I can attribute the puzzler to you, or not, as you prefer. T.R.]

PREPARE YOURSELF FOR SEMINARS

A professional conference or seminar can be well worth the time away from the office if you take the right approach. Here's how to turn your next professional meeting into a valuable experience:

Prepare yourself ahead of time. For example, list at least five specific questions you want answered at the conference.

Use break time to network. Talk to your peers; make lunch and dinner plans with as many different people as you can.

Bring lots of business cards to exchange. When you receive a card, make a note of something distinctive about the person giving it to you.

Collect handouts from all speakers--even those whose sessions you don't attend.

Read your notes. Review them on your way home and prepare a summary of what you experienced and learned.

Back at work, conduct a mini-seminar for your co-workers on the key points of what you've learned.

Keep in touch with the speakers. Write them with your questions on specific topics. Ask how you can get additional information on their specialties.

(Employees News, Kentucky Utilities/Old Dominion Power Company, One Quality St., Lexington, KY 40507)

1998 FALL PROGRAM

ANNOUNCING

What: The Fall 1998 ADR Section Program

Where: Houston, Texas

When: Friday, September 11, 1998 (Tent.)

The Fall 1998 ADR Section program is tentatively set for Friday, September 11, 1998 in Houston. Mark your calendars now.

Please send your thoughts on:

1. Subjects you would like to see covered at the program.

2. Program format (lecture, interactive, etc.)

3. Any other comments you have.

Send your comments to John Coselli, Jr. at Fax No. (713) 659-3267, or write to John at P.O. Box 2712, Houston, Texas 77252-2712 or call him at (713) 659-6494.

NOMINATIONS BEING ACCEPTED FOR
FRANK G. EVANS AWARD

The Justice Frank G. Evans Award Committee of the Alternative Dispute Resolution Section of the State Bar of Texas is accepting nominations for the annual Justice Frank G. Evans Award to be presented at the State Bar Convention in 1998. The Evans Award was created by the ADR Section as a living tribute to Justice Frank G. Evans, prominent forefather of the Texas ADR movement. A maximum of two Awards may be presented annually at the Section's Spring business meeting.

The Evans Award was created to recognize persons who have performed outstanding efforts in promoting or furthering the use of research of alternative dispute resolution methods in Texas, and who are recognized leaders in ADR.

To request a Nomination Form and Guidelines, or to submit a Nomination mail to:

Michael J. Whellan, Chair
Evans Award Committee
c/o Graves, Dougherty, Hearon & Moody
515 Congress Ave., Suite 2300
Austin, Texas 78701
(512) 480-5734
FAX (512) 478-1976

NOMINATIONS MUST BE

RECEIVED BY

MARCH 1, 1998.

1998 COUNCIL AND SECTION MEETINGS

 

SATURDAY, FEBRUARY 7, 1998

Council Meeting/Mid-Year Meetings Council Meeting: 9:00 a.m. - 10:30 a.m.

Section Meeting & Continuing Education: 10:30 a.m. - 4:00 p.m.

Texas Law Center, State Bar of Texas,

15th & Colorado, Austin, TX. 10:30 a.m. - 4:00 p.m.

 

SATURDAY, APRIL 25, 1998

ADR Section Council Meeting

Texas Law Center, State Bar of Texas,

15th & Colorado, Austin, TX. 10:30 a.m. - 4:00 p.m.

A working lunch will be served.

 

FRIDAY, JUNE 12, 1998

Section Annual Meeting

Corpus Christi

Times to be announced.

NOMINATING COMMITTEE DEADLINES

MARCH 12, 1998 Formation of nominating committee (90 days prior to annual meeting).

MAY 12, 1998 Notice to Section of nominees (30 days prior to annual meeting).

NOTE: If you, or someone you know would like to be considered by the Nominating Committee to serve on the State Bar of Texas ADR Council, please forward your name and other relevant information by March 12, 1998 to: Suzanne Duvall, 8235 Douglas Ave., Suite 330 L.B. 61, Dallas, Texas 75225.

1998 CALENDAR OF EVENTS

Basic 40-Hour Mediation Training * Houston * February 5, 6, 7, 12, 13, 14, 1998 * Worklife Institute Consulting * (713) 266-2456

Family & Divorce Mediation Training * Houston * March 12-14, 1998 * Worklife Institute Consulting * (713) 266-2456

Comprehensive Family Mediation * Dallas * Part A [24 hrs]: January 23-25, 1998; Part B [40 hrs]: February 21-23 & March 21-22, 1998 * Dr. Lynelle Yingling & the Honorable Dee Miller * 1-800-354-1248 or 972-771-9985

Family Mediation Course * Center for Community Cooperation * Dallas * January 17, 1998 * Dispute Mediation Service, Inc. * (214) 754-0022

40 Hour Basic Mediation Training * Houston * February 9-13, 1998 * University of Houston College of Business Administration's A.A. White Dispute Resolution Institute * (713) 743-4933

24 Hour Divorce & Child Custody (Family) Mediation Training * Houston * March 4-6, 1998 * University of Houston College of Business Administration's A.A. White Dispute Resolution Institute * (713) 743-4933

1998 Annual Conference - Reinventing Mediation: New Directions in A Dynamic Profession * Austin * February 27-28, 1998 * Omni Austin Southpark Hotel * Texas Association of Mediators (TAM) * (512) 480-5711



NEWSLETTER SUBMISSION DATE FOR
UPCOMING ISSUES OF ALTERNATIVE RESOLUTIONS

Dates are tentative and subject to change.

SEE PUBLICATION POLICIES ON PAGE 13 AND SEND ARTICLES TO:

ROBYN G. PIETSCH
A.A. White Dispute Resolution Institute
University of Houston, 325 Melcher Hall
College of Business Administration
Houston, Texas 77204-6282
(713) 743-4933
FAX (713) 743-4934
E-Mail: rpietsch@uh.edu

Articles must be submitted on disk with a hard copy included or by E-mail.

BOOK REVIEW

THE TAO OF NEGOTIATION
Joel Edelman and Mary Beth Crain
Harper Business 1993

by Liz Wally

My interest in The Tao of Negotiation was prompted by The Tao of Leadership, another title that offers a different framework within which toi view leadership issues. (Browsing through the business section of the bookstore, I picked up this book partly because I had really enjoyed The Tao of Leadership, another title I had seen in this section which offered a different framework within which to view leadership. Joel Edelman does the same with this book as he dissects the processes of conflict and negotiation.

Edelman is described as a pioneer in mediation. He was the first executive director of the Neighborhood Justice Center in Los Angeles in 1977. In 1981, he opened the first private mediation law practice in Southern California. He also was a research analyst at the RAND corporation in the 1960's and a prosecutor and civil liberties lawyer in the 1970's. Interspersed with this, he has studied with various spiritual teachers and healers.

The book reflects all of his varies life experiences. Edelman writes informally, as if you were in conversation with him. It is clear that he has a point of view that he wants to share with you about conflict and about your way of responding to it. Edelman's approach is meant to help you understand yourself and others in a deeper way. As he says, the book takes both a 'mediative' and a 'meditative' approach to conflict.

If you are comfortable with or interested in learning about non-Western approaches, I think you will enjoy Edelman's intertwining of various spiritual philosophies with his discussion of conflict. If you are not comfortable with Eastern philosophy, you may find these frequent references distracting. He is a story-teller, illustrating many of his points with his own cases. His main thesis is that one person in a dispute has the power to bring that conflict to a peaceful and often mutually satisfactory conclusion.

He emphasizes communication skills and the importance of really understanding your own needs when deciding whether or not to be in a conflict. In a chapter titled A Dispute Isn't A Dispute Until It's A Dispute, he discusses how people tend to worry in advance that a dispute might be in the offing and offers ways to prevent an issue from ever getting to that stage.

If you have had a lot of conflict resolution/negotiation training, you will probably not find any major new points in the book. However, I think you will be impressed by the thoroughness, subtlety and freshness of his presentation. He is particularly good at dissecting each part of an interaction and leading you through both the feelings and actions that are the precursors to conflict situations. For example, Conflicts can always be traced to a source, the most common of which are: 1) misunderstanding and miscommunication; 2) dishonesty; 3) negligence; 4) intention; 5) exclusive investment in one's opinions and belief system; 6) failure to establish boundaries; 7) mishandling of conflict; 8) fear: and 9) hidden agendas. He goes on to explain each of these sources and builds on the reader's understanding of them. He then moves to the next level, which he describes as the basic elements necessary to prevent conflict and then the four types of conflict personalities.

Edelman is passionate about the possibility of peaceful resolutions. Because of this passion, he gently but persistently urges the reader to learn more about him(her)self, so that (s)he can be the one in any potential conflict who can work to turn it into a productive problem-solving session. He also gives short personal exercises for the readers to do in order to better understand themselves.

He covers everything from interpersonal situations, to work, divorce, business partnerships, and service disputes. Giving step-by-step methods to defuse the situations which can arise in these arenas, Edelman also relates to exercises to help prepare the reader to approach the person with whom he or she is having a conflict.

Sometimes Edelman sounds like a teacher, sometimes like a Dutch uncle, sometimes like a counselor. He is casual in his generalizations and generous with his theories and observations. Sometimes I found myself disagreeing with him or considering his analysis too simplistic, but his enthusiasm and obvious breadth of experience enticed me to read further.

If you are looking for a comprehensive, passionate, inspiring and sometimes quite astute and subtle exposition of the intricacies of conflict and its resolution, The Tao of Negotiation will provide a resource.

[Liz Wally is a Conflict Resolution/Mediation Trainer in Dallas, Texas]

BOOK REVIEW

GETTING PAST NO: NEGOTIATING WITH DIFFICULT PEOPLE
William Ury
Bantam Books 1991

By Susan Cefat

We've all had our nightmare mediations. No matter how much training we've had or how many mediations we've done, at one time or another every mediator has stood, back to the wall, asking: What do I do now? These people are impossible! In a refreshing departure from the sea of books weighing the different theories of mediation, Ury offers straightforward, practical answers on dealing with the stonewalker, the manipulator, and the attacker.

Getting Past No outlines a five-step strategy for negotiating: 1) Don't react, 2) Disarm your opponent, 3) Change the game, 4) Make it easy to say yes, and 5) Make it hard to say no. Ury advises us to go around the resistance rather than meet it head on. Each chapter begins with a motivating quote like: Rarely is it advisable to meet prejudice and passions head on. Instead, it is best to appear to conform to them in order to gain time to combat them. One must know how to sail with a contrary wind and to tack until one meets a wind in the right direction. Fortune de Felice, 1778.

What makes the book so effective is that the concepts are illustrated by concrete examples. Steven Speilberg makes a friend of a dreaded childhood bully by recognizing his need to feel important and casting him as a hero in a school play. Two sides in a labor negotiation set up the groundrule that only one side can get angry at a time, forcing a non-react pact which breaks the escalating emotional cycle. Two young lawyers compliment two seasoned lawyers on their good guy/bad guy tactic, successfully identifying and neutralizing the manipulative technique while letting the other side save face.

Ury is best known for co-authoring the classic book on interest-based negotiation, Getting to Yes. Getting Past No takes the original work a step further by specifically focusing on difficult disputes and difficult negotiators. The strategies in this book would enhance any mediator's insight and skill in facilitating negotiations and working toward collaborative outcomes.

[Susan Cefai is a mediator and attorney in Austin, Texas]

CASE LAW & LEGISLATION UPDATE
By: John A. Coselli, Jr.

This is a column designed to keep members of the Section informed about cases and legislation affecting ADR. This column will appear in future issues of Alternative Resolutions. If you are aware of any case law or legislation which affects ADR please fax a copy of the case or legislation and/or the relevant citations to John A. Coselli, Jr., at Fax No. (713) 659-3267. John is an attorney-mediator and arbitrator in Houston, and can be contacted at (713) 659-6494.

Case: Vireo, P.L.L.C. et al, Appellants vs. Danny Cates, et al, Appellees, 953 S.W. 2d. 489 (Tex. App.--Austin, 1997).

Case History: On appeal from the 250th District Court, Travis County, Texas.

Disposition: Trial court's denial of plaintiff's motion to compel arbitration of defendants' counterclaims was affirmed. Appellate opinion rendered September 11, 1997.

ADR Issue Involved: Enforcement of arbitration agreements.

Facts: A management agreement between the parties contained an arbitration provision which read: no civil action concerning any dispute under this agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding anbitration before a single arbitrator...

The plaintiff owners of the property (Vireo, P.L.L.C and others) cancelled the management agreement with the defendant management company. The defendant management company and its officers contend that the termination of the agreement was wrongful. Neither party initiated arbitration as required by the agreement and Plaintiffs sued in District Court for money damages. Defendants counterclaimed for declaratory relief and damages for wrongful termination of the management agreement.

Plaintiffs filed a motion requesting that the trial court abate the defendant's counterclaims and compel their arbitration as required in the management agreement. The trial court overruled the plaintiff's motion, finding that the plaintiffs has abandoned as a matter of law their right to compel arbitration under the agreement.

Opinion: The Court of Appeals found that the trial court proceeding on a motion to compel arbitration is a statutory proceeding governed by §171.002 (a) of the Texas Civil Practices and Remedies Code which directs the court to order the parties to proceed with arbitration when a party applies for such relief and shows the opposing party's refusal to arbitrate. When the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise the application shall be denied.

In Jack B. Anglin Co. v. Tipps, 842 S.W. 2d. 266 (Tex. 1992) the Supreme Court explained that the statute contemplates summary proceedings akin to those applicable to deciding motions for summary judgement. The trial judge must decide whether to compel arbitration on the basis of affidavits, pleadings, discovery and stipulations. However, unlike summary judgement proceedings, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the court must conduct an evidentiary hearing to determine the disputed material facts.

The Court of Appeals held that a plaintiff who sues on an arbitrable claim unconditionally, without having initiated arbitration of the claim or demanding specific performance of the arbitration agreement, creates in the defendant a right of election. The defendant may insist or not upon arbitration, as he chooses. If the defendant does not insist upon arbitration, the contracting parties have mutually repudiated the arbitration agreement as a matter of law and waived any right there under.

Case: Stewart Title Co., Appellant v. Wallace Ray Mack, Jr., Appellee; Stewart Title Co., Realtor v. The Honorable Patrick W. Mizell, Judge of the 129th Judicial District Court, Harris County, Texas, Respondent, 945 S.W.2d 330 (Tex. App. --Houston [1st Dist] 1997).

Case History: On interlocutory appeal from the 129th District Court, Harris County, Texas, and motion to Court of Appeals for leave to file petition for writ of mandamus.

Disposition: Court of Appeals dismissed the interlocutory appeal of the trial court's denial of insurer's (Stewart Title Co.) demand for arbitration and overruled the insurer's motion for leave to file a petition for writ of mandamus. Appellate opinion rendered May 1, 1997.

ADR Issue Involved:Entitlement to arbitration under the Texas General Arbitration Act, Texas Civil Practices and Remedies Code Ann. §171.001. (Vernon Supp. 1996) and the Federal Arbitration Act, 9 U.S.C. §2.

Facts: Stewart Title Co. sold Mack a title insurance policy for $1,670. which contained an arbitration clause. Mack made a claim under the policy which Stewart denied. Stewart demanded arbitration under the title policy and Mack refused. Mack sued to recover for claims under the title policy. Stewart asked the trial court to enforce the arbitration clause, which the court denied.

Opinion: With respect to procedure, the Court of Appeals held:

1. Interlocutory appeal is not available from a denial of a motion to compel arbitration under an agreement not governed by the Texas General Arbitration Act. Appeal may only be brought from final judgement.

2. A party must seek a writ of mandamus to seek review of entitlement to arbitration under the Federal Arbitration Act.

3. A party seeking to compel arbitration under the federal act must establish its right to arbitrate. When there is no express agreement to arbitrate under the federal act (as in this case), a party who

alleges that arbitration should be compelled under the federal act because the agreement subject to arbitration relates to interstate commerce, must show it. It is not enough to only show that a

corporate party in the suit was doing business in several states to prove interstate commerce was affected.

The Court of Appeals held that Arbitration in this case could not be compelled under the Texas Arbitration Act because the consideration paid by Mack to Stewart for the title insurance policy was $1,670. and is therefore a contract which is excluded from the coverage of the Texas Act under §171.001 (b). That Section of the Act excludes contracts by individual persons for the acquisition of real or personal property, or services, or money, or credit where the total consideration is $50,000. or less, unless the parties agree in writing to submit to arbitration and the agreement is signed by the parties and their attorneys. Mack paid a total consideration less than $50,000. for the title policy and the parties and their attorneys did not sign an agreement to submit to arbitration.

The Court also held that arbitration could not be compelled under the Federal Arbitration Act because the federal act applies only to contracts relating to interstate commerce and Stewart offered no evidence of interstate commerce.

Case: Brian Turford, Realtor, v. The Honorable Olen U. Underwood, Respondent, 952 S.W.2d 641 (Tex. App. --Beaumont, 1997).

Case History: On appeal from the 284th District Court, Montgomery County, Texas.

Disposition: Court of Appeals granted employee's (Turford) writ of mandamus to compel the trial court to vacate its order to arbitrate. Appellate opinion rendered October 9, 1997.

ADR Issue Involved: Waiver of right to arbitrate.

Facts: Turford and his current employer, Common Vision, L.L.C., sued Turford's former employer, Analytical Technologies, Inc., seeking a declaration of the invalidity of a covenant not to compete contained in an at-will employment contract between Turford and Analytical Technologies. Analytical Technologies filed a suit against Turford in Circuit Court in Michigan seeking an injunction, breach of contract and damages. In the Texas case Analytical Technologies filed a general denial and a motion to dismiss, alleging the employment contract included a Michigan forum selection clause placing venue in Michigan.

The trial court denied the motion to dismiss and granted Analytical Technologies motion to compel arbitration and Turford sought writ of mandamus compelling the trial court to vacate the order compelling arbitration. Turford alleges that Analytical Technologies waived its right to arbitrate.

Opinion: The Appellate Court held that there is a strong presumption against waiver of arbitration, which must be intentional. A party waives its rights to arbitrate if it knows of an existing right to arbitrate and acts inconsistently with the arbitration agreement to the prejudice of the other party.

By suing Turford for breach of contract (a matter subject to arbitration under the arbitration clause) in Michigan, Analytical Technologies acted in a manner inconsistent with the arbitration agreement. By forcing Turford to arbitrate in Texas and suing him for damages in Michigan, Turford was simultaneously exposed to liability and prevented from litigating his claims against Analytical Technologies. Analytical Technologies thereby waived its right to arbitrate.

The writ of mandamus was granted and the trial court was ordered to vacate its order compelling arbitration.

Case: BDO Seidman, Appellant v. Hal D. Miller, Appellee, 949 S.W, 2d 858 (Tex. App.--Austin 1997).

Case History: On interlocutory appeal from the 98th District Court, Travis county, Texas.

Disposition: Trial court's denial of defendant's motion to stay litigation pending arbitration and trial court's granting of plaintiff's motion to stay arbitration prodceedings were affirmed by the Court of appeals. Appellate opinion rendered July 24, 1997.

ADR Issue Involved: Validity and enforceability of arbitration agreements.

Facts: Miller entered in to partnership agreement with BDO. The partnership agreement contained an arbitration clause providing that the agreement is governed by New York law and appointing members of BDO's board of directors and partners as arbitrators. Miller withdrew from the partnership and sued for declaratory judgement that the arbitration and non-competition provisions of the partnership agreement were void and unenforceable. BDO asked the trial court to stay the litigation pending arbitration, which the court denied, and Miller asked the court to stay arbitration, which the court granted. BDO appealed.

Opinion: The Court of Appeals held as follows:

1. The construction and validity of the partnership agreement would be determined by New York law because the agreement provided for the same.

2. The agreement to arbitrate was invalid on its face because the arbitrators designated in the agreement were members of the board of directors and partners of BDO. As such, the arbitrators had fiduciary duties to BDO and were in fact BDO itself. This created the inherent inequity of having BDO serve as its own arbitrator.



EMERGING ADR MARKETS
By Helmut O. Wolff, Vice President
Dallas Regional Office & Service Center
American Arbitration Association

Markets in the dispute resolution are on the increase throughout the United States. The following represent a sample of developments throughout the country in the field of dispute resolution which may affect your dispute resolution practice.

Commission on Health Care Dispute Resolution

The American Arbitration Association, the American Bar Association and the American Medical Association have joined together in a common effort to establish a Commission on Health Care Dispute Resolution to develop due process standards and procedures for the fair and equitable resolution of health care disputes.

Health care providers, health maintenance organizations (HMOs), and their enrollees have increasingly been involved in disputes with consumers. The Commission on Health Care Dispute Resolution, composed of representatives named by the American Arbitration Association, American Bar Association and American Medical Association, provides the awareness, understanding and use of mediation, arbitration and other out-of-court settlement techniques to resolve disputes over health care coverage and access in the managed care environment.

The Commission is focusing on three major areas: the application of alternative dispute resolution for coverage and access issues in the managed care arena, the development of appropriate due process standards, and the development of model ADR procedures that can be utilized in the managed care relationship.

The Commission intends to prepare a summary in early 1998 and a final report - to be presented for consideration by the entities represented on the Commission - will be released in the summer of 1998. The final report will be disseminated to the public and all levels of leadership in the field.

The Commission on Health Care Dispute Resolution is co-chaired by the president of each participating organization: Jerome J. Shestack, president of the American Bar Association, William K. Slate II, president and chief executive officer of the American Arbitration Association, and Dr. Percy Wootten, president of the American Medical Association.

Other members of the Commission include AAA representatives Howard J. Aibel, Esq., LeBoeuf, Lamb, Greene & MacRae, L.L.P, Thomasina V. Rogers, Esq., J. Warren Wood, Esq., vice president, general counsel and secretary, The Robert Wood Johnson Foundation, and Max Zimny, Esq., general counsel, UNITE, AFL-CIO; ABA representatives Hon. Arlin M. Adams, former U.S. Court of Appeals Judge, Kimberlee K. Kovach, Esq., professor of law, University of Texas School of Law, Lawrence A. Manson, Esq., Lord, Bissell & Brook, Roderick B. Mathews, Esq., Hazel & Thomas, P.C.; and, AMA representatives Ron Pollack, Families USA, Carter Phillips, Esq., Sidley & Austin, Donald Palmisano, M.D., J.D., AMA Board of Trustees, and Charles James Barone II, M.D., Henry Ford Health Systems.

Mediation for United States Federal Agency Workplace Disputes

The General Services Administration (GSA) of the United States Federal Government maintains a list of authorized employment mediators.

If approved as a resource for mediators by the GSA, you may resolve employment disputes

in all federal departments and agencies and activities in the executive, legislative and judicial branches; mixed ownership government corporation; and other activities and organizations authorized by statute or regulation to use GSA as a source of supply.

The American Arbitration Association has been chosen as an authorized source of employment mediators on the GSA supply list. The American Arbitration Association is currently implementing a training program for the GSA mediation panel. Individual mediators will not be listed on the General Services Administration Supply List. To obtain a current listing of mediators in a particular locale, the agency must contact the American Arbitration Association directly.

Cellular Telecommunications Industry Association
Committed to Alternative Dispute Resolution

Parties to a dispute involving the technology of wireless telecommunications -- one of the fastest growing consumer electronic industry segments in history -- can involve consumers, the government and business competitors.

The Cellular Telecommunications Industry Association (CTIA), a not-for-profit trade association, has estimated that the industry adds one new subscriber every 2.8 seconds, 24 hours a day with an estimated 42 million subscribers to cellular and broadband PCS services. Each year, hundreds of millions of billing and contract-related transactions take place. Occasionally, disagreements develop over these transactions.

The members of CTIA include providers of cellular and PCS wireless services to customers throughout the United States. CTIA has asked the American Arbitration Association to administer an arbitration program for the wireless industry and its customers.

The Wireless Industry Arbitration Rules of the American Arbitration Association contain three tracks: a Fast Track arbitration system for cases involving claims of less than $2,000; Regular Track Rules; and a Large, Complex Case Track for use in cases involving claims of at least $500,000.

RESTRUCTURING OF NATURAL GAS AND
ELECTRIC POWER INDUSTRIES OPENS ADR MARKETS

A growing level of interest by the energy industries, particularly the electric power and natural gas industries, in resolving disputes through mediation and arbitration offers opportunities for the dispute resolution provider.

The heightened interest in resolving these disputes through ADR is due, in large part, to increased market forces in the various energy industries and strong support by state and federal government regulators for quick and fair resolution of disputes without the traditional government review and approval. The Federal Energy Regulatory Commission (FERC) has been a leader in seeking nontraditional mechanisms to resolve cases pending before it.

Energy-related disputes typically involve multiple parties, significant dollar amounts and/or questions of major environmental consequence.

For more information on emerging markets and the use of ADR, especially as it relates to the American Arbitration Association, please feel free to contact the American Arbitration Association's Dallas regional office at (972) 702-8222 or visit the Association's web site at www.adr.org.



ALTERNATIVE RESOLUTIONS
PUBLICATION POLICIES

Requirements for Articles

1. Articles must be submitted for publication no later than 6 weeks prior to publication. The deadline for each issue will be published in the preceding issue.

2. The article must address some aspect of alternative dispute resolution, negotiation, mediation, or conflict management. Promotional pieces are not appropriate for the newsletter.

3. If possible, the writer should submit a diskette MS Word or WordPerfect 5.0 Or 5.1), a double spaced typed hard copy, and some biographical information.

4. The length of the article is flexible: 1500-3500 words are recommended. Lengthy articles may be serialized upon author's approval.

5. The article may have been published previously or submitted to other publications, provided the author has the right to submit the article to Alternative Resolutions for publication.

6. All quotations, titles, names, and dates should be double-checked for accuracy.

Selection of Article

1. The newsletter editor reserves the right to accept or reject articles for publication.

2. In the event of a decision not to publish, materials received will not be returned.

Preparation for Publishing

1. The editor reserves the right to edit articles for spelling, grammar, punctuation and format without consulting the author.

2. Any changes, which affect the content, intent, or point of view of an article, shall be made only with approval of the author.

Future Publishing Right

Authors reserve all their rights with respect to their article in the newsletter, except that the State Bar of Texas Alternative Dispute Resolution Section obtains the rights to publish the article in the newsletter and in any State Bar publication.

1997-98 Editorial Board

Caliph Johnson, Chair

Paul D. Keeper

Marty Leewright

Michael Whellan

Mary Thompson

STATE BAR OF TEXAS

ALTERNATIVE DISPUTE RESOLUTION SECTION

Policy for Listing of Training Programs in Alternative Resolutions

Example of Listing

Commercial Mediation * Ozona * June 21, 22, 23, 1996 * Acme Mediation * (444) 444-4444

Policy to Appear in the Newsletter

1. The listing service is available to any Section member wishing to publicize a training program, which is related to the practice of ADR and is offered in Texas.

2. The listing will be limited to the following information: the title of the training, training dates, training location, sponsoring organization and phone number to be called for more information.

3. There will be a $15 charge for each training listed. Checks should be made out to State Bar of Texas Alternative Dispute Resolution Section.

4. To be included in an issue, the information must be received by the deadline listed in the prior newsletter issue.

5. The newsletter will publish only those training programs offered within six months of the newsletter publication date.

ALTERNATIVE DISPUTE RESOLUTION SECTION

Views expressed in Alternative Resolutions are those of the authors and do not necessarily reflect the views of the editors, the State Bar of Texas or the ADR Section. © State Bar of Texas Alternative Dispute Resolution Section, 1997-1998. The individual authors reserve the rights with respect to their works included in this Newsletter. The State Bar of Texas ADR Section reserves all rights to this Newsletter.