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SEPTEMBER 2002 MEETING AND CURRENT ACTIVITIES

Next Business Meeting Friday October 4, 2002

 

The next business meeting of the ADR Committee is scheduled for Friday October 4, 2002. Any and all interested persons are welcome to attend this meeting. Upcoming meetings will continue to be held on the first Friday of each month. Mark the dates on your calendar: November 1, December 6 and February 7. There will not be a business meeting in January.

Next Topical Luncheon – October 9, 2002

The next Topical Luncheon will be held on October 9, 2002. Mediation has become the norm for civil cases, rather than the exception and hotly contested commercial cases are mediated everyday. Jim Carr, Esq. and Patrick Kenney, Esq. will be our guest speakers to discuss a few everyday not-so-hypothetical fact patterns that litigators and mediators may want to consider before their next mediation. The topic is, "Real World Problems for Litigators and Mediators under Existing and Proposed Law – Some practical problems of confidentiality, disclosure, nonparty participants, covered communications and waivers in mediation."

Jim Carr is a senior Attorney General in the Colorado Attorney General's Office and an experienced trial attorney with mediation training. He participates in VCMP and is the chair of the Government subcommittee for the CBA ADR Committee. Patrick Kenney is an experienced trial attorney and former chair of the CBA ADR Committee. He specializes in the mediation of commercial cases at the firm of Kenney & Kall Mediation Services; LLP. Be sure not to miss this nuts and bolts presentation!

Topical Luncheons are held at the CBA CLE Offices at 1900 Grant Street, 3rd Floor, from noon to 1:30 p.m. Cost, which includes a box lunch, is $12.00 for members of the ADR Committee and $15.00 for all others. You may attend at no cost, if you do not want a lunch. To RSVP, please call Tessa Khan at (303) 860-1115 (tkhan@cobar.org). One CLE credit is available for each program. To become a speaker or to suggest topics for topical luncheons, contact Katy Miller at Miller and Steiert, PC (303) 798-2525, katym@m-s-lawyers.com.

Mediation and the Unauthorized Practice of Law

The Regulation Counsel’s investigation into the unauthorized practice of law by a Jefferson County mediator has been voluntarily dismissed with practically no guidelines regarding what constitutes the unauthorized practice of law with respect to the drafting of settlement agreements by non-attorney mediators.

The ABA Section of Dispute Resolution has taken the position that mediation is not the practice of law. The ABA website contains the following statement regarding a five page resolution recently adopted by the ABA Section of Dispute Resolution.

"The ABA Section of Dispute Resolution has noted the wide range of views expressed by scholars, mediators, and regulators concerning the question of whether mediation constitutes the practice of law. The Section believes that both the public interest and the practice of mediation would benefit from greater clarity with respect to this issue in the statutes and regulations governing the unauthorized practice of law ("UPL"). The Section believes that such statutes and regulations should be interpreted and applied in such a manner as to permit all individuals, regardless of whether they are lawyers, to serve as mediators. In order to encourage such interpretations, the Section has adopted a Resolution on Mediation and the Unauthorized Practice of Law. The Resolution contains commentary comparing the Resolution with particular state guidelines and with existing and emerging ethical guidelines for mediators. See the Resolution at

Newsletter

Want to improve this newsletter? Anyone who is interested in submitting material or editing please contact Patrick Kenney.

VCMP Status Report

The Volunteer Court Mediation Project will hold a meeting on October 15, 2002 at noon at the CBA offices Ninth Floor. The discussion will include a consideration of the Regulation Counsel’s actions as well as lots of new ideas for the rejuvenation and re-institution of the Project following its recent hiatus. Lunch will be provided and all volunteers and anyone interested in becoming a volunteer are invited to attend. To RSVP and to reserve a lunch please contact Tessa Khan at

UMA Task Force

In order to stimulate informed dialogue and perhaps arrive at a consensus regarding the UMA, judges, magistrates, litigators, ADR providers and community mediation providers have joined a Task Force on the UMA in Colorado. The next meeting of the Task Force will be on Tuesday November 12, 2002 at 3:00 p.m. at the CBA offices, 1900 Grant St. Ninth Floor. If you or your organization is interested in joining the Task Force contact Patrick Kenney,

Improving Communications in Mediation

On September 11, at the CBA ADR Topical Luncheon, Diana Ward-Collins, a nurse, educator and mediator and Joseph P. McMahon, Esq. a mediator facilitator, settlement counsel and arbitrator who was formerly with Davis Graham and Stubbs, LLC presented, "Improving Communications in Mediation". This excellent program drew a near-record crowd of both lawyers and non-lawyers involved in dispute resolution.

 

Beginning with the premise that the typical shuttle-diplomacy, where parties spend little, if any, time in the same room, is rarely the best way to proceed, Ms. Collins and Mr. McMahon made a compelling case for direct discussions between the parties and their counsel. Without the rapport resulting from face to face discussions, they asserted, negotiators may endure, "strained and tense interaction and attribute their own feeling of ill ease to malevolent intentions of the other party." (Lee Thompson and Janice Nadler in The Handbook of Conflict Resolution (Deutsch and Coleman)).

 

The speakers stressed the need for candor in addressing the often unspoken issues underlying conflict and the necessity of raising the level of basic understanding and sophistication of negotiators in order to avoid the settlement culture’s stale and jaded routine settlement-conference approach to mediation. Acknowledging that denial and avoidance accompany most conflict, Mr. McMahon noted that the adversary system is perfectly suited to permit the parties to continue the dispute for years without ever talking to each other.

 

They pointed out that our current settlement culture views settlement as collateral to trial preparation, despite the fact only a very small percentage of cases actually go to trial and that most civil cases settle. Strategic misrepresentation is the norm. Each side carefully hides their "reservation value" while trying to learn the other side’s. As attorneys, we are trained to expect disputes to be resolved at the level or power and rights and easily discount the parties interests which may be compelling and of much more importance to the parties than their legal rights. – Patrick Kenney

ADR Column of The Colorado Lawyer

Two members of the ADR Committee, Roger Adams and Dr. Susan Cook have teamed up to draft a great article on mediation. Watch for this article in the next few months. Jonathan Boonin and Jim Stone, co-editors of The Colorado Lawyer ADR Column remind you that they are accepting suitable articles for publication in The Colorado Lawyer and invite you to submit your work for publication. For information or to submit an article contact Jonathan or Jim.

Committees, Activities, and Programs to Join

Are you looking for a way to become more involved? The following sub-committees are available for you to join. Please contact the chair of any sub-committee if you would like to participate.

 

Bar Institute Sub-committee
Chair, William J. Baum, 303-316-1523, Fax 303-316-1525,

 

The Colorado Lawyer ADR Column
Co-chair, Jonathon Boonin, (303) 413-1111, jboonin@warren-boonin.com; Co-chair Jim Stone, 303-534-1254,

 

Education/Topical Lunch
Chair, Kathryn E. Miller, Esq. Miller and Steiert, PC (303) 798-2525 katym@m-s-lawyers.com

 

Industry Focus Employment
Fritz Ihrig 303-526-1750, Fax 303-526-4241, l

fgihrig@aol.com.

 

Industry Focus Health Care
Chair Ed Dauer (303) 871-6278 Fax (303) 871-6001, edauer@mail.law.du.edu

 

 

Legislative
Co-chairs, William J. Baum, 303-316-1523, Fax 303-316-1525
bill_baum@mail.skiwinterpark.com and Susan Jennings 303-733-5916 Sijenlaluz@aol.com.

 

Newsletter Editor Pro Tem
Patrick Kenney, 303-757-5000, Fax (303) 850-7168, kenneylaw@aol.com

 

Government ADR Task Force
Chair, Jim Carr, 303-866-5283, james.carr@state.co.us

 

Long Range Planning
Susan Demidovich 303-695-0653, ext.111, Fax 303-695-6795,

Volunteer Court Mediation Project 
Patrick Kenney, Executive Director (303) 757-5000, kenneylaw@aol.com

CBA ADR Forum Committee Executive Council

CBA Chair

CBA Chair-Elect

 

DBA Chair


Miles Davies 303-796-0447,

William J. Baum, Jr. (970) 726-1523, Fax (970) 726-1525, bill_baum@skiwinterpark.com
Secretary
Eugene Osman, (303) 526-9279, osmanpc@aol.com.mdavies834@aol.com.
merrillshie@aol.com

Merrill Shields, 303-436-1930, Fax (303) 322-2288,
Sgdemid@aol.com
jstone1672@aol.com
bill_baum@mail.skiwinterpark.com
Kenneylaw@aol.com or Jim Tarpey, tarpey@hollandhart.com).
tkhan@cobar.org.
http://www.dispute/resolution2002.pdf (.pdf)."