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FEBRUARY 6 MEETING AND CURRENT ACTIVITIES

ADHOC ADR/TRANSACTIONAL LAW COMMITTEE MEETS

This committee meets on the first Wednesday of each month at 10:30 to noon in the CBA offices. It is considering a convention program and CLE topics. Specifically, programs that explore use of ADR in particular substantive areas are being considered. In addition, the subject of resistance to ADR use is being explored.

ADR FORUM COMMITTEE WILL TEAM WITH ANOTHER SECTION OF THE BAR FOR CBA CONVENTION

The ADR Forum Committee will team with another segment of the CBA for this year's convention. The partner is yet to be determined but the presentation will occupy one half day of the convention.

ADR CLINIC PROGRAM GRANT EXPIRING AT DU LAW SCHOOL

DU Law School has had a grant to provide students with an ADR clinical program. Students and supervisors attended Denver County Court and offered mediation services to the disputants. In addition, the trial advocacy program contained an ADR component. The grant for this is expiring and the program is therefore in jeopardy. The ADR Forum Committee is considering comment on this to DU. Commentary would require approval by the CBA.

NEXT BUSINESS MEETING - MARCH 6

The next CBA ADR Forum Committee business meeting will be held on March 6th at noon in the CBA offices. Please mark your calendars.

The business meetings for the next several months are as follows: March 6th, April 3rd, May 8th and June 5th. All of these meetings will be at noon at the CBA offices. The May meeting has been rescheduled for the 8th because of the ABA ADR meeting on May 1st.

CROSS-CULTURAL ADR ISSUES TOPICAL LUNCHEON PROVIDES INSIGHT INTO ADR INVOLVING DIVERSITY ISSUES

Our chair, Sally Ortner, moderated and the panel of experts, Silke Hansen, Regional Director, US Department of Justice, Community Relations Service; Leo Cardenas, Mediator Facilitator and Trainer; Malaika Pettigrew, Multicultural Diversity Trainer and Consultant and Bill de la Cruz, Multicultural Diversity Trainer and Consultant, provided invaluable insights into mediation of disputes which contain diversity issues. Evaluation and communication of cultural values and characteristics and the appropriate use of interpreters were some of the topics discussed. Watch for the next luncheon presentation.

FEBRUARY 6TH BUSINESS MEETING DISCUSSES TOPICS FOR THE NEXT LUNCHEON PROGRAM

Sally Ortner, Van Elmore, Lillian Lehrburger, Merrill Shields, Susan Demidovich and Steven Ezell attended the February 6th business meeting. The group discussed possible topics for the next luncheon meeting in May. Arbitration of employment disputes is being considered. There was also discussion regarding an update of the ADR Speakers list.

Please note that all sub-committee chairs are requested to attend the Business Meetings in order to provide a report of activities. If the chairs can not attend, then another member of the subcommittee should attend the Business Meeting to make an in person report. In the event that no one can attend, then a written report should be submitted to our Chair, Sally Ortner, prior to the Business Meeting. Thanks.

ABA ADR MEETING TO BE HELD IN DENVER

The ABA ADR meeting will be held in Denver on May 1. The meeting will be at the Cherry Creek Inn at 600 S. Colorado Blvd. from 8 to 5. The topic will be "How to Succeed with Mediation". Mark your calendars.

SUB-COMMITTEES REPORT KEY ACTIVITIES

COLORADO LAWYER

Please contact Lili Lehrburger 837-1001 for details regarding future articles. Submissions for the next of our 4 annual articles will be due on April 1ST. Submissions for future issues are also welcome. We need more articles, particularly regarding ADR in select substantive areas.

EDUCATION

The Education Sub committee has arranged a list serve with the University of Colorado. A list serve (similar to a bulletin board that you may subscribe to using your e-mail address) is a function of the Internet that allows people of similar interest to contact all subscribers to the listserv by simply sending out one message. Thus, everyone on the list gets all messages sent to the listserv. It is a great discussion mechanism. It should allow us to focus our efforts at promoting ADR, affecting ADR bills in the Legislature, keeping everyone up on what the CBA & DBA ADR committees are doing, etc. Some listservs become unwieldy, but our group is fairly small and the topic is focused. Therefore this should not clog up your in-box. I encourage you all to sign up and tell others who might be interested to do so. Here are the instructions from CU on how to subscribe:

For users to subscribe to this list, address messages to listproc@lists.Colorado.EDU with the contents of their message being (remember that the <>'s in all commands just mean 'put your stuff here' so don't include them):

subscribe <list> <their-full-name>

For this list, for example, send to listproc@lists.Colorado.EDU a message that says, simply:

subscribe adr colorado Van Elmore

Copy this one line message, put in your own name, and send it off to listproc@lists.Colorado.EDU.

Congratulations to Sheila Somberg, the new Co-Chair of the Education sub-committee. Please provide your input and suggestions for luncheon meetings to Co-Chair Susan Demidovich at 696-0822.

COLORADO PLEDGE SUB-COMMITTEE

The Colorado Pledge subcommittee is finalizing the revised list of Colorado Pledge members. It is planning to provide the members with some of our publications and is planning to provide one or two activities per year, such as luncheon meetings etc., for pledge members. Coordination with the various Chambers of Commerce regarding recruitment of pledge members is also under consideration. This may include participation in the 1999 Chamber Expo.

ADR IN GOVERNMENT SUB-COMMITTEE

This Sub-Committee meets on the last Friday of the month. (See contact info below for contacts.) The group is planning to draft ADR pamphlets for various state agencies to use. The Attorney General's Office is planning to educate the various agencies regarding their authority to use ADR. The sub-committee is also talking with administrative judges concerning ADR use. In addition, it is looking at other states to see what role ADR has in state governments.

INDUSTRY FOCUS

REAL ESTATE

This sub-committee is reviewing ADR clauses for use in standard real estate contracts.

EMPLOYMENT

The employment group is evaluating bids for printing the manual and is considering various mechanisms to educate employers, employees and attorneys regarding the use of ADR in employment disputes.

ACTIVITES TO JOIN

The following activities and programs are available for you to join. Please contact the indicated chairs if you would like to participate.

Bar Convention - William J. Baum, 575-7548, Fax 825-8400

Members: Shelia Porter, Ed Dauer

Colorado Lawyer Column - Lillian Lehrburger, 837-1001, Fax 839-1031

Members: Susan Demidovich

Education/Topical Lunch - Co-Chair Susan Demidovich 696-0822, Co-Chair Sheila Somberg 376-9016, Fax 744-1880, E-Mail sheila@mediation-usa.com

Members: Christine Coates, Robert Smith,

Industry Focus Employment - Co-Chair Fritz Ihrig, 771-3690, Fax 771-1016, E-Mail fgihrig@aol.com and Co-Chair Van Elmore 659-7342, Fax 659-1051, E-Mail vel@rmi.net

Members: The employment industry focus group is a long-standing focus group. Over the course of several years, nearly 32 different individuals have assisted the group. Space does not permit listing all of these participants, however some of the active participants are: Breckenridge Grover, John Robinson, Lynn Feiger, Mike Severns, Preston Oade, Robert Steiert, Sheila Somberg, Stephen Snyder, Timothy Sparks and Valerie McNaughton

Industry Focus Health Care - Health Care - Ed Dauer, 871-6278, Fax 871-6001, E-Mail edauer@du.edu

Industry Focus Residential Real Estate - Lili Lehrburger, 837-1001, Fax 839-1031

Members: Richard Workman, Sally Ortner, George Hoffenbeck, Jr., Kent Levine, Mike Gorham

Legislative - Angela Arkin, 753-0100, Fax 753-0310 E-mail ararkin@aol.com

Members: Cindy Savage, Jane Irvine and S. Beth Boaby

Membership - Robin Amadei, 604-1960, Fax 604-6278

The Colorado Pledge - Merrill Shields, 866-3557, Fax 866-3955

Members: Deb Armbruster, Ginny Arnold, Allan Peryaam, Jeff Zelmanow, Bill Baum and Robin Amadei

Government ADR Task Force - Co-Chair - Richard Busch, 628-3338, Fax 628-3368 and Co-Chair - Merrill Shields, 866-3557, Fax 866-3955

Members: David Kaye, Valerie McNaughton, George Bentley and Jim Carr

Long Range Planning -Steve Mains, 444-6559, Fax 444-3997

Members: Officers, Past-Chairs, members at large, Sub-committee Chairs and others expressing interest.

Ad Hoc Transactional Law/ADR Group - Sally Ortner, 777-8005, Fax 778-7416

Members: Shelia Porter, Merrill Shields, Lili Lehrburger, Richard Busch II, Ed Gossman, George Hoffenfeck, Jr., David Sondheimer

MEMBERS OF THE CBA ADR FORUM COMMITTEE EXECUTIVE COUNCIL

Chair - Sally Ortner 777-8005, Fax 778-7416

Chair-Elect - Steve Mains 444-6559, Fax 444-3997

Past Chair - Thomas Brightwell 298-8250, Fax 298-8264

Secretary - Van Elmore 659-7342, Fax 659-1051, E-Mail vel@rmi.net

Members at Large - Cynthia Savage 837-3667, Fax 837-2340 and Bruce Campbell 825-8400

TOP TEN REASONS WHY I WON'T MEDIATE
1. THE OTHER SIDE IS USING MEDIATION JUST TO COMPEL DISCOVERY. You reveal to the other side only what you want. What you reveal to the mediator is confidential absent your express permission to communicate.
2. MEDIATION JUST SLOWS EVERYTHING DOWN. Only if THE PARTIES choose to stop everything else. Mediation should run concurrently with and separate from the judicial/arbitration calendar. There are NO delays unless you consent. Mediation sessions can be scheduled as expeditiously as the parties' availability.
3. MEDIATION IS JUST ANOTHER COST THAT I HAVE TO EXPLAIN/JUSTIFY TO MY CLIENT. The cost of mediation is nominal compared to any other single litigation activity in terms of overall value to the client and progress towards bringing about resolution. The mediator should shoulder all administrative responsibilities, taking little of your time and your client's money.
4. SUGGESTING MEDIATION WILL BE PERCEIVED AS A SIGN OF WEAKNESS OF MY CASE OR MY SKILLS/COMPETENCE/ABILITIES BY MY OPPONENT/CLIENT/BOSS. First it's actually a sign of strength, that your case can stand the light of day and scrutiny of a neutral. Second, let the mediator suggest mediation. He knows how to defuse that reaction. Third, ultimately it doesn't matter because settlement is addressed in all cases in any event and the short term perceptions rarely, if ever, affects the ultimate settlement terms. Fourth, present mediation as a routine part of your regular litigation plan, the same way you approach a deposition. Fifth, you can mediate from a position of strength. Sixth, the mediator can make the other side listen to reality when they won't listen to you. Finally, it is never an issue if court ordered or contract mandated.
5. I CAN MEDIATE MY OWN CASES. Attorneys can negotiate their own settlements, often using mediator techniques, but they cannot mediate a case in which they are an advocate. Mediation requires the trust and confidence of both sides. Opposing counsel are adversarial, they don't trust each other. Mediators have access to confidential information from both sides which facilitates settlement, attorneys do not. Both sides have hidden agendas. The mediator has none. Mediators are neutral, attorneys are advocates. Attempts to be both an adversary and a neutral creates serious conflicts in the eyes of your client. Mediators' core competency is bringing about resolution. Attorneys core competency is advocacy and protection of clients' rights and remedies.
6. THIS CASE CAN'T AND WON'T BE SETTLED. THE CLIENT IS ADAMANT. Roughly 95% of cases settle.
7. IF THE CASE DOESN'T SETTLE, I'VE WASTED TIME AND MONEY. Roughly 95% of cases settle. Statistically, the vast majority of cases settle at mediation. (About 80%). Also, this reason assumes that all cases settle during the first round of negotiations, which they don't. Even if it doesn't settle at mediation, the framework for settlement has been established, extreme positions are softened, issues narrowed and common areas identified thereby reducing discovery going forward. "Reality checks" from mediators assist clients in adjusting expectations.
8. MY CASE IS A SURE WINNER. I'D RATHER GO TO TRIAL. This is the very BEST reason to mediate since it is the safest, cheapest way to convince the other side that you can't lose.
9. MEDIATION IS A LOT OF 'PSYCHO-BABBLE' Choose the right mediator and control. Be certain the mediator runs the mediation in a business like manner, in accordance with the parties' design and stays with the issues you have identified as critical.
10. MEDIATORS DON'T KNOW MY CASE. Hire a competent, no nonsense mediator knowledgeable in the subject matter and litigation process. Be certain to provide sufficient information.
THE ALSO RANS
11. THE MEDIATOR MAY ANNOUNCE A DOLLAR VALUE THAT IS SO FAR OFF BASE AND SO FAR FROM MY OWN LAST OFFER, THAT WILL ONLY MAKE MY ADVERSARY TAKE AN EVEN MORE INTRANSIGENT POSITION. A mediator is prohibited from announcing his/her own valuation without the parties' consent. Make this clear to the mediator.
12. MY CLIENT DOESN'T UNDERSTAND MEDIATION. The client should speak to the mediator. Explain the benefits and use as another tool in the litigation bag aimed at bringing about the most cost effective result oriented conclusion to the dispute.