vol 6, num 2 | December 2020
 
 
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Mediation
 
AN ABI COMMITTEE NEWSLETTER
 
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Committee Co-Chairs’ Report 2020
The Mediation Committee produced a variety of programs, articles and materials throughout 2020, despite the challenges wrought by COVID-19. In all instances, the committee leadership sought to develop, support and sustain the mediation practice of our members and advance education on the topic.

Set forth below is a highlight of some (but by no means all) activities during 2020. Additional details on committee activities (including links to program materials and newsletter articles) are available on the committee’s website.

Conference Programs
The committee’s Education Directors lined up a terrific program for the 2020 Annual Spring Meeting — only to have the conference cancelled due to COVID-19. Despite that disappointment, our resilient panel stuck together and agreed to present at the 2020 Winter Leadership Conference, held virtually December 3-4, 2020. The session, presented in conjunction with the International Committee, was titled “Peace Bridge, or Bridge of Sighs: Cross-Border Mediation of Insolvency-Related Disputes,” and it demonstrated through a mock mediation the pitfalls and benefits of using mediation to resolve cross-border insolvency disputes. The committee is grateful to the panelists, who prepared and delivered an excellent presentation. The presenters were:

  • Jack Esher, MWI-CBI | Boston
  • Simon Thomas, Goodwin Procter | London
  • Hon. Barbara J. Houser, U.S. Bankruptcy Court (N.D. Tex.) | Dallas
  • Kyle J. Ortiz, Togut, Segal & Segal LLP | New York
  • E. Patrick Shea, Gowling WLG International Ltd. | Toronto
  • Dr. Annerose Tashiro, Schultze & Braun GmbH | Frankfurt, Germany

Plans are already underway for the 2021 Annual Spring Meeting, with efforts focused on combining with the Ethics Committee for a program on mediation ethics. Details to come.

Other Educational Activities
On Nov. 6, 2020, Co-Chairs Judith Elkin and John Loughnane and Membership Relations Director Frank Monaco participated in a mock mediation and lecture on the mediation of insolvency-related disputes in the U.S. before a law school master’s class at Jindal Law School in New Delhi, India, at the request of new ABI Mediation Committee member Prof. Ishana Trapathi.

Newsletter and ABI Journal
The committee published a newsletter in September that included, among other items, an article by Hon. Louis H. Kornreich (retired) titled “Recipe for Success: Tips and Techniques for a Mediated Settlement.” The article concluded that “[m]ediation is a process requiring skills, preparation, and knowledge. Like baking, success in mediation may be had by those who add a pinch of insight and their own personal touch to the recipe.” Many thanks to Lou for the contribution.

In addition, committee members regularly contribute to Mediation Matters, a regular ABI Journal column. Articles from this past year included:
  • Hon. Louis H. Kornreich (ret.), “Avoiding or Overcoming an Impasse in Mediation” (Nov. 2020)
  • George R. Calhoun, “Mediation and a Lack of Transparency in Mass Tort Cases” (Oct. 2020)
  • Ian Connor Bifferato and Edward L. Schnitzer, “The Hypothetical Hits of Mediation” (Sept. 2020)
  • Leslie A. Berkoff and Hon. Louis H. Kornreich (ret.), “Taking Mediation Online: The Practicalities and the Pitfalls” (June 2020)
  • Donald L. Swanson, “Small Business Trustee as a Mediator-ish Facilitator: A Proposal” (April 2020)
  • Hon. Judith K. Fitzgerald (ret.), “Fostering Diversity in ADR: Lessons from the Mansfield Rule” (Jan. 2020)
If you have any interest in writing for the newsletter, please reach out to Morris Bauer. For articles for the Mediation Matters column, please contact Leslie Berkoff.

Listserve
The committee puts forth a weekly listerve topic for our members to discuss. In 2020, the weekly email was rebranded into the very popular “Dear Ed & Connor” advice column format to raise thorny hypothetical issues that mediators are often confronted with in their practices. Very often, the listserve generates thoughtful suggestions from committee members offering different approaches for addressing situations or just a simple thank you for free educational advice. A summary of the most popular topics was transformed into a Mediation Matters column in September 2020 (noted above).

Membership Activities
The committee organized and hosted a special virtual event on Thursday, Sept. 17, 2020, from 5:00-6:00 p.m. to allow members to network. With the assistance of ABI, the committee hosted new member Jeffrey T. Zaino, vice president of the American Arbitration Association/International Centre for Dispute Resolution (AAA-ICDR), who delivered remarks on effective strategies for dispute-resolution professionals to build a professional brand and expand their social media footprint. In addition to his professional role at AAA-ICDR, Jeff is very active with numerous dispute-resolution groups, including sections of the New York State Bar Association, the American Bar Association and other groups. Following Jeff’s remarks, committee members had the opportunity to break into smaller discussion groups for informal networking opportunities. Thanks go to Jeff for arranging for AAA-ICDR sponsorship of the event. The committee is in discussions with ABI to host one of the weekly Wednesday networking receptions early in 2021.

Leadership
 
 
 
The Coronavirus and Electronic Mediation: Suggestions for Things to Come
Howard N. Gorney photo
 
Howard N. Gorney
Nixon Peabody LLP
Plymouth, Mass.
 
 
In January 1918, a soldier stationed at Fort Riley, Kan., reported to the base hospital suffering from flu-like symptoms: a sore throat, fever and chest pain. By lunchtime that day, more than 100 soldiers had come down with the same mysterious malady. This was the beginning of the influenza pandemic that struck the U.S., and later the world, a century ago.

It did not take long for the virus, commonly labeled the “Spanish Flu,” to spread to other military bases and rapidly around the world, as U.S. military personnel went overseas to fight in World War I. Eventually, 500 million people worldwide would be afflicted, and at least 50 million would ultimately die before the virus ran its course, with at least 675,000 dying in the U.S.

 
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