Ben: Why did CPR’s Mediation Committee create this Guide?

Erin: Our Committee’s corporate members wanted to provide mediation best practice materials that specifically spoke to the concerns of in-house counsel. There were too many stories of in-house counsel who felt disengaged from the mediation process and were not sure what the best role was for the in-house lawyer. In this Guide, we sought to empower corporate counsel by providing practice tips and general advice on how they could remain in control of the mediation process.

Ben: Is that why the title includes the phrase “Make Mediation Work for You”?

Erin: It is. We are all told ad nauseam that mediation is the parties’ process. But our review found that many parties felt that the process had slipped away from them – that it felt more and more like the process belonged to advocates and mediators.

Ben: What are some examples of how this Guide is different from others?

Erin: It was not only written for an in-house audience but was largely written by in-house lawyers who specialize in mediation practice, including two of the Mediation Committee’s chairs (namely, Rick Richardson, Vice President and Associate General Counsel for GSK, and me, while I served as Global Head of Alternative Dispute Resolution for AIG) and David Burt, CPR Executive Consultant and former Corporate Counsel at DuPont. The Guide was also developed not only by a team of in-house writers and editors but also with the help of experienced and respected members of CPR’s Panel of Distinguished Neutrals.

In it, we cover topics including:

• Why it is a good idea to let your counterparty select the mediator – even if that mediator is not your first choice.
• Advice on how to prepare for mediation in a way that will ensure productive negotiations.
• How to manage counsel and the mediator in preparing for negotiations.
• What to do when the mediator appears to be biased against your company or just clearly inefficient.
• Practice tips that in-house counsel can utilize to overcome impasse during the mediation.

Ben: Can mediation advocates learn from the Guide?

Erin: The Guide should be instructive for both advocates and mediators. In drafting these guidelines for in-house lawyers, we hoped that other participants in the process would also take heed, perhaps learning a bit more about the in-house perspective and what clients expect of counsel and of neutrals.

Ben: What is the Mediation Committee doing to spread the word?

Erin: The Mediation Committee will host an event in New York later this year. This will be a great opportunity to hear from leaders in the mediation field on how to put paper into practice.

Ben: Tell us about your own professional career since leaving AIG.

Erin: I started my own arbitration, mediation and consulting practice in September 2017. My cases have focused on insurance and commercial matters, including coverage, corporate dissolution, shareholders and breach of contract disputes. Working as a neutral was a natural next step for me, after years of working as an advocate and then in-house. I have greatly enjoyed the transition to my new role in dispute resolution practice.

By Anna M. Hershenberg, Esq., Vice President, Programs and Public Policy, CPR

On April 10, the International Institute for Conflict Prevention and Resolution (CPR) held its first Philadelphia regional meeting at the offices of Stradley Ronon Stevens & Young, LLP, a long-standing CPR member and first recipient, more than a decade ago, of CPR’s “Law Firm Award for Excellence in Alternative Dispute Resolution” for the firm’s commitment to principled and creative conflict management and resolution.

The meeting drew more than 130 people, with the attendees split evenly between in-house counsel from Fortune 500 companies, trial attorneys from the nation’s top law firms and highly sought-after neutrals. The prominent attendees included 15 former judges and general counsels and chief legal officers from Aetna Inc., Comcast Corp., Deloitte, General Motors Corp., GlaxoSmithKline, Hewlett-Packard Co., Independence Blue Cross, Johnson & Johnson, KPMG LLP, Merck & Co., Monsanto Co., Pfizer Inc., TE Connectivity Ltd., Triumph Group Inc. and Verizon Communications Inc., among others.

The program, “Effective Mediation Strategies for Client and Counsel,” was divided into three parts. Bennett G. Picker, Senior Counsel at Stradley Ronon, CPR neutral and member of CPR’s Council, and Noah Hanft, President and CEO of CPR, kicked off the meeting with welcoming remarks.

Wharton School lecturer and mediation trainer Eric Max then led the first part of the program, “Negotiating Strategies for Clients and Counsel,” by facilitating an interactive discussion among the in-house counsel, outside counsel and mediator audience members. Professor Max outlined the multiple layers of negotiation occurring at any given time during a mediation. He challenged the audience with provocative questions, such as pressing each stakeholder to reveal whether they lie to each other during the course of a mediation and exploring the reasons for their conduct.

After a networking coffee break, the program resumed with Sophia Lee, Partner at Blank Rome and former Chief Litigation Counsel at Sunoco Inc., skillfully moderating a panel discussion on the keys to effective preparation and advocacy with panelists Francine Friedman Griesing, Managing Member of Griesing Law; Scott S. Partridge, Vice President of Global Strategy at Monsanto and a member of CPR’s Board of Directors; and John Wright, Senior Vice President and General Counsel of Triumph Group. Of particular interest to the attendees was Mr. Partridge’s explanation of how he created a relationship-based conflict identification and resolution process to shrink Monsanto’s – and then the entire industry’s – litigation portfolio.

The highlight of the evening came when the Honorable Timothy K. Lewis (Ret.), Counsel at Schnader Harrison Segal & Lewis LLP, former federal circuit and district court judge and chair of CPR’s Diversity Task Force, and Mr. Picker led the third part of the program, “Promoting Diversity in Mediation.” Mr. Picker – who has been championing diversity and leading by example for decades – provided concrete steps that in-house counsel, outside counsel and mediators can take to drive diversity and inclusion in the dispute resolution field. Judge Lewis then delivered deeply moving and personal remarks on his experiences as a black attorney and federal court judge in a predominately white legal world. He challenged the audience to mentor colleagues from historically disadvantaged backgrounds, reminding them that everyone got to where they are by standing on someone else’s shoulders, and “that talent is distributed equally across all races and ethnicities and genders and identities. Opportunity is not.”

He set out his vision for what true workplace inclusion should look like and how to achieve it: “The goal here is not to be included simply because of race or gender; the goal is not to be excluded simply because of these qualities. But in order for us to get there, we have to make a concerted effort, and we must challenge ourselves, our assumptions, and sometimes each other.” Judge Lewis’ remarks, which received a standing ovation, will appear in “Alternatives to the High Cost of Litigation,” CPR’s monthly international newsletter.

The evening concluded with closing remarks by Thomas J. Sabatino, Jr., CPR Board Vice Chair and Senior Vice President, General Counsel, Law & Regulatory Affairs at Aetna and a networking cocktail reception.

In short, the CPR Philadelphia Regional Meeting introduced attendees to what CPR does best: create opportunities for high-level conversations between inside and outside counsel and provide businesses with the tools to cultivate a corporate culture that embraces diversity of perspective, and early and creative ways to prevent and resolve business disputes.

From left: Bennett G. Picker and Hon. Timothy K. Lewis.