ABA Mediation Week 2011: Civility and Public Discourse

This year the Dispute Resolution Section of the American Bar Association has designated October 16-22 as Mediation Week. The theme for this year’s Mediation Week is “Civility and Civil Public Discourse.”

Given many things that have happened over the past year — the Arab Spring, increased economic instability, successive impasses between our lawmakers — this topic is very timely. We at JAMS believe that civility and advocacy do not have to be mutually exclusive. In fact JAMS has been a major sponsor of various civility programs over the years.  It is possible to be passionate about your ideas, perspectives and position, and still respect the same in others.

For the legal profession, civility is not just an ideal, it’s a requirement. From a practical standpoint, incivility only adds complexity to the process and can prolong disputes and cost clients time and money. From a professional standpoint, our clients — and our colleagues — are best served when we all keep civility as our main objective.

According to the ABA, lawyers and mediators play a special role in promoting civility and civil public discourse.  In their use of mediation and in other endeavors, lawyers can encourage and model the use of civility, non-disparagement, dialogue, problem solving and other collaborative practices by other lawyers, public officials, community leaders and members of the general public. This is one issue where the legal and ADR communities can lead by example.

In honor of Mediation Week, JAMS will be hosting complimentary continuing legal education (CLE) programs during October and through the end of the year. For a list of upcoming events, please visit www.jamsadr.com.

Know When to Hold ‘Em

Less than two years from now, a section of copyright law will allow creators of songs published 35 years ago to reclaim ownership of those works.

Opening the window for changes in ownership will likely result in messy legal battles between music publishers and artists, but JAMS neutral Richard Posell argues in an article published in Law360 that alternative dispute resolution can help quickly and efficiently resolve those disputes.

The 1976 Copyright Act gives creators the right to reclaim the copyright of works 35 years after those works were originally published by a record label or other publisher, starting in 1978.

Improved publishing opportunities, such as online sales platforms like iTunes, present a tantalizing alternative to declining CD sales. Many artists may seek to reclaim ownership of songs in order to make deals with new distributors, Mr. Posell writes.

“It is anticipated that litigation over the effectiveness of these notices will commence in early 2013,” writes Mr. Posell, who cites such hits as the Bee Gee’s “Night Fever” and Kenny Rogers’ “The Gambler” as ripe for copyright termination in the coming years.

At issue in those disputes will be whether songs were considered “works for hire,” because pieces written by an employee of a publisher or commissioned specifically for a publisher are not eligible for copyright termination.

It can be a vague discrepancy that makes determining the original owner of a song all the murkier.

If similar legal battles have been any indication—a battle over the rights to Superman continues to rage after seven years of pending litigation—sorting out in the courts who owns what could prove to be expensive and time-consuming.

“If business abhors uncertainty, the grant termination issue, which is about to erupt, appears to be in the first ranks of economic turbidity,” writes Mr. Posell. “What this damaged industry needs now is clarity and speed.”

One way of achieving that, Posell argues, is to establish a comprehensive dispute resolution program to bring all parties to a dispute together to establish a structured environment to resolve copyright termination claims out of court.

Posell proposes programs that resemble how union grievances are resolved—mediate where possible, using neutral evaluations or arbitrations when settlement isn’t immediately reachable.

“Obviously, these are concepts only,” he writes,“designed to show that with a little imagination, help from a professional neutral, and knowledge of ADR processes, a framework for resolving the variety of grant termination disputes can be created.”

Nine Distinguished Neutrals Join JAMS

It’s been a very busy fall season for us at JAMS. Not only did we launch our JAMS International panel, hosted and trained Weinstein fellows from around the world, but we also launched nine neutrals in just more than four weeks. The talent on our panel only grows and we’re proud to continue providing the best possible service to our clients and colleagues.

In the west, our five new panelists stretch along the Pacific Coast. In Seattle, Commissioner Eric Watness joined after providing 16 years as a Court Commissioner with the King County Superior Court. Heading south to Sacramento, Justice Rick Sims recently launched after nearly 30 years on the superior and appellate courts in Northern California. Next to join was Judge Bill Downes, who came from the federal bench out of Wyoming where he served as the Chief Judge for 12 years; and in San Francisco, Judge James Larson, who was a Federal Magistrate Judge for 14 years in the Northern District of California joined. And just this week, we launched Judge Coleman Swart, who was a Superior Court Judge in Los Angeles for 25 years.

In the east, we had Shelley Olsen, Esq. joins us in New York who previously served as a senior court mediator, Summary Jury Trial judge and settled thousands of matters involving a wide range of issues. Next was Judge Jan Symchych, based out of Minneapolis, who brought 30 years of legal experience, including five years spent as the Deputy General Counsel for Medtronic, Inc. Then Judge Maria Sypek, who sat on Superior Court of New Jersey for 20 years, was added to the panel in Philadelphia. Rounding out the group, Judge Fred Smalkin launched in Maryland, bringing with him a 35-year legal career that included time as a Federal Judge in the District of Maryland.

Each of these neutrals will make excellent additions to our panel with their varied backgrounds, extensive experience and stellar reputations. We welcome them to our team!

ABA Construction Forum Coming Next Week

The American Bar Association’s Construction Fall Forum is taking place next week in Atlanta, GA from October 13-14, 2011. This forum brings together people with diverse construction backgrounds from around the U.S. and focuses on strategies that can lead to both better results for clients and results more efficiently achieved.

JAMS neutrals Hon. James Rosenbaum (Ret.) from Minneapolis and Douglas Oles, Esq. from Seattle will all participate in the interactive sessions along with other construction industry professionals. We’re proud our neutrals will participate and add to the discussion.

Topics include:

  • The Shifting Sands of Contract Drafting, Interpretation and Application
  • Strategies for Technical Defenses
  • The Moonscape of DRBS/DABS
  • Comparative Challenges Obtaining Third-Party Discovery
  • Ethics: Mediation and Settlement Negotiations