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<xTITLE> Featured Blog for September 12, 2011</xTITLE> Featured Blog for September 12, 2011

September 2011
Colin Rule
Changing the Legal Landscape (9/12/11)
Colin Rule

Monica Goyal on

“These two sites facilitate settlement in different ways: PeopleClaim by introducing risk to reputation, and Fair Outcomes by incentives to negotiate in good faith. Fair Outcomes is likely to be more effective in disputes over property, in which both parties’ stakes in their online reputations is relatively low. Neither service is likely to help you in the case where the other party does not want to pay, because the reality is they do not have the teeth of the law, or the ability to call out the sheriff on you. But at the price point they offer their services, it may be an avenue to explore before going to the lawyer.

What both of these sites offer is a sneak-peak into the incredible changes that are occurring in the legal profession. Undertaking settlement negotiations using traditional lawyers are not only expensive, but the process is often lengthy and exhausting for both parties, regardless the outcome. By simplifying the settlement process, web-based legal services like PeopleClaim and Fair Outcomes are changing the landscape for (in my opinion) the better.”

Novo Justice Blog by Colin Rule


Victoria Pynchon
The Heroes of Flight 93 as Evolutionary Altruism and Spiritual Practice (9/12/11)
Victoria Pynchon

It was an unusually clear and sunny Tuesday morning in September when Thomas Burnett Jr., senior vice president and chief operating officer of a medical research company, boarded a plane in Newark, New Jersey heading for his home in the San Francisco Bay Area.

Easing into his first-class seat as he accepted a glass of orange juice from the flight attendant, he nodded good morning to his row partner, Mark Bingham. Settling in for the five-hour flight, Thomas opened the front page of the New York Times – the early edition of the paper dated September 11, 2001.

Though Thomas and thirty-nine of his fellow passengers were headed for the West Coast, four others on Flight 93 had a different destination in mind. Ziad Jarrah, a Lebanese national, and three Saudi Arabians, Ahmed al-Haznawi, Ahmed al-Nami and Saeed al- Ghamdi, were poised to launch an unthinkable terrorist attack.

Jarrah, al-Haznawi, al-Nami and al-Ghamdi – members of the little-known al-Qaeda terrorist network – intended to use Flight 93 as a missile aimed at the heart America’s political life – the United States Capitol.

??At approximately the same time as Burnett and Bingham took their seats on Flight 93, fifteen al-Qaeda conspirators boarded three other flights – one from Washington D.C., American Airlines Flight 77, and two from Logan in Boston, American Airlines Flight 11 and United Flight 175. In a coordinated attack, the conspirators would hijack those flights, seize their controls, and crash them into the Pentagon and New York City’s Twin Towers, catapulting America into two actual wars (in Iraq and Afghanistan) and a metaphoric one – the War on Terror.

The intended victim of Flight 93 was not its passengers nor its crew. The intended victim was the idea of America. The unintentional heroes were ordinary Americans who could easily have behaved differently than they did when faced with their own destruction. Had they privileged fear rather than action, our memories of 9/11 would include a devastated and smoldering national Capitol.

and ABC of Conflict Blog by Victoria Pynchon


Phyllis Pollack
What Were They Thinking? (9/12/11)
Phyllis Pollack

On August 31, 2011, the Second Appellate District of the California Court of Appeal issued an opinion that while ostensibly discusses the validity of an arbitration provision, recites facts that are so bizarre, one can only wonder, “What were they thinking?”

In Duick v Toyota Motor Sales, USA, Inc. (Case No. B22483) (Duick v. Toyota), Amber Duick sued both Toyota and its advertising agency, Saatchi & Saatchi North America, Inc. for intentional infliction of emotional distress, negligence and false advertising, among other claims, seeking many millions in damages.

The facts are so bizarre, I must quote them in full:

Duick’s claims arise from her apparently unwitting participation in an internet-based advertising campaign launched by defendants in connection with Toyota’s Matrix automobile. The campaign, known as “Your Other You,” “consisted of sending an unwitting recipient emails from an unknown individual.” During the campaign, any visitor to the Toyota Matrix web site (“player 1”) could designate another person (“player 2”) for participation in the Your Other You “interactive experience.” Player 2 would then receive an email purportedly from player 1, inviting player 2 to click a hyperlink that was in some manner “identified with Toyota.” The link would direct player 2 to a web page entitled “Personality Evaluation,” which displayed a drawing of a door with the word “Begin” underneath. Clicking on the door would direct player 2 to a second web page entitled “Personality Evaluation Terms and Conditions.” In order to continue beyond that page, according to evidence introduced by defendants, player 2 was required to scroll through certain text (the “terms and conditions”) and, at the end of that text, click a box next to the following sentence: “I have read and agree to the terms and conditions.”

The first paragraph of the terms and conditions states, “You have been invited by someone who has indicated that he/she knows you to participate in Your Other You. Your Other You is a website provided by [Toyota] that offers you . . . an interactive experience.” The second paragraph further states, “If you review and agree to the Terms and Conditions detailed below . . . you may participate in a 5 day digital experience through Your Other You. . . . You may receive email messages, phone calls and/or text messages during the 5-day experience.” A subsequent paragraph also states, “You understand that by agreeing to these Terms, you are agreeing to receive emails, phone calls and text messages from Toyota during the 5-day experience of Your Other You.” The terms and conditions contain the following arbitration provision: “You agree that . . . any and all disputes, claims, and causes of action arising out of, or connected with, Your Other You . . . shall be resolved individually, without resort to any form of class action, and exclusively by arbitration to be held solely in Los Angeles, California under the auspices of the American Arbitration Association and pursuant to its Commercial Dispute Resolution Rules and Procedures.”

The record before us does not describe the further web pages (if any) to which player 2 would be directed after agreeing to the terms and conditions. Over the next several days, however, player 2 would receive emails of an unsettling nature from an “unknown individual” who appeared to have access to some personal information concerning player 2 (information that presumably was provided by player 1, without player 2’s knowledge, at the initial stage).

Duick was apparently cast in the role of player 2. She received “an unsolicited email asking [her] to take a personality test.” She does not remember clicking the box signifying her agreement to the terms and conditions, and she claims that for various technical reasons the text of the terms and conditions was impossible to read in its entirety.

In any event, Duick later began to receive emails from an individual identifying himself as “Sebastian Bowler.” The text of the first email reads, “Amber mate! Coming 2 Los Angeles Gonna lay low at your place for a bit. Till it all blows over. Bringing Trigger.” Duick received another email from Bowler the following day, accurately stating her previous home address, describing it as a “Nice place to hide out,” and advising her that “Trigger don’t throw up much anymore, but put some newspaper down in case.” The email also provided a link to Bowler’s MySpace page, which portrayed him as a 25-year-old Englishman and “a fanatical English soccer fan who enjoyed drinking alcohol to excess”; the page also displayed photographs of a pit bull dog.

Additional emails from Bowler to Duick over the next few days purported to describe his cross-country journey by car to visit her, including photos and videos of his travels and references to his efforts to evade law enforcement (“I seem to have lost the coppers for now, so I’m all good, mate”; “Had a brush with the law last night. Anyway, hopefully I’ll have lost them by the time I get to your place”). One message explained that Bowler “ran into a little problem at the hotel,” and Duick subsequently received an email from an individual identifying himself as “Jimmy Citro,” purporting to be the manager of a motel and billing Duick for the damage Bowler had done to the motel’s property. The final email included a link to a video revealing that Bowler was a fictional character and that the entire sequence of emails was an elaborate prank, all part of an advertising campaign for the Toyota Matrix. ( Id. at pp 2-4.).

Pursuant to the arbitration clause, the defendants moved to compel arbitration. The trial court denied the motion, and the appellate court affirmed on this appeal.

The appellate court agreed with Ms. Duick that the provision compelling arbitration was unenforceable because of “fraud in the inception or execution.” That is, “ “the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all, mutual assent is lacking and [the contract] is void. In such a case it may be disregarded without the necessity of recession.” “ (Id. at p.5.) (Emphasis original.)

The appellate court pointed out that the terms and conditions were drafted by defendants, not by Ms. Duick, and were given the misleading title of “Personality Evaluation Terms and Conditions”. In the court’s view, this title gave the impression to any reader that a personality evaluation test was involved and not the advertising prank that was about to descend onto Ms. Duick. Indeed, it certainly did not provide any sort of notice whatsoever of what was about to occur to Ms. Duick! (Id. at p.6). Moreover, as the appellate court noted, because the terms used in the agreement were so vague and opaque, it was impossible to fully understand what was about to occur, even after reading them. (Id.)

In sum, because “defendants deprived Duick of a reasonable opportunity to know the character of the proposed contract,” ( Id. at p.7), the appellate court found the contract void from its inception and thus unenforceable. Consequently, the defendants could not compel arbitration.

Notably, the appellate court took pains to note that it was not deciding the matter on the merits and was in no way addressing the merits of the case or its possible outcome.

So… I guess this case stands for the obvious proposition that one must have a valid, enforceable agreement (and not one induced by fraud) in order to then enforce its arbitration provision (or any of its other provisions for that matter.) But, I still wonder…. What were the defendants thinking when they dreamed up and approved this advertising campaign!

…. Just something to think about!

PGP Mediation Blog by Phyllis G. Pollack


Victoria VanBuren
Federal Court Orders Arbitration of Claims in BP Oil Spill Case (9/12/11)
Victoria VanBuren
As readers may already know, litigation surrounding the “Deep Water Horizon” oil spill is well underway. In a later twist, a federal trial court in Louisiana granted a motion to stay litigation between Anadarko and BP and ordered the parties to arbitrate pursuant to an arbitration clause found in their Joint Operating Agreement. See In RE: Oil Spill by the Oil Rig.

BP had filed a motion to compel arbitration, however, Anadarko responded that BP had waived its right to arbitrate by defending the lawsuit in court. The court found that BP’s actions - examining a single Anadarko employee, serving three individual requests for production on other parties related to Anadarko, asking a few dozen questions at depositions of other parties related to Anadarko, and identifying four Anadarko witnesses on a non-binding list of potential witnesses- did not substantially invoke the judicial process. The court, accordingly, stayed Anadarko’s claims against BP and sent the parties to arbitration.
Stay tuned. Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly Hayes


Joe Markowitz
1000 Tables (9/12/11)
Joe Markowitz

If you've been paying attention to the news from the Middle East lately, you've probably read about large peace demonstrations in Israel, as well as the violent attack earlier this week in Egypt against the Israeli embassy. You might not have heard about a more hopeful event in Israel this week organized by some of these peace movement leaders. I saw something about this on David Harris-Gershon's blog on conflict resolution in Israel and the Middle East. The event was called 1000 tables. The organizers set up roundtables in town squares in about 30 different cities, each table holding 10 chairs, and each group led by a moderator who might be a coach, group leader or mediator.

Participants had the opportunity to meet strangers, express their views, and listen to a variety of other perspectives. The contents of the conversations will be published in various social media. Traditional media doesn't seem to know quite what to do with a story like this one, perhaps because it lacks a traditional narrative. This does not seem to be the kind of conflict or resolution that the media like to report. It has no winner or loser. There is only . . . talking, and perhaps a little more understanding. That does not fit in with story-telling conventions that require heroes, villains, and dramatic conflict. So a story about a peace protest would be more likely to make the front pages if it inspires violence or confrontation of some kind. Note that the Jerusalem Post story about this event focused on a minor confrontation that occurred when the mayor of Tel Aviv dropped by, rather than on the content of the conversations. By looking for that type of incident, the paper might have missed the excitement inherent in the spectacle of hundreds of people, in a contentious society, just sitting around tables talking and listening to one another.

Think about this: Isn't the whole idea of a PEACE MARCH somewhat of an oxymoron? Any march or demonstration is just a group of people inspired by a particular cause presenting their cause in a forceful, in your face way that is likely to inspire counter-marchers and confrontations with those of opposing views. Sometimes that might be the most effective way to promote a cause, even the cause of peace. But if people really want to promote the idea of peace, they need to organize more events like the 1000 tables event, that actually embody peace and are intended to inspire dialogue rather than confrontation.

(See also another report in Haaretz)

Mediation's Place by Joe Markowitz


A Labor Day Lesson (9/12/11)
Cynthia Alkon

The New York Times carried a story today about a labor union that is often afraid to ask for more or confront management. In New York, members of the Federation of Catholic Teachers are reportedly working without a contract and as a group tend to not want to confront management, the Archdiocese. When teaching negotiation, I often talk about negotiating in a way that is consistent with your underlying values. However, what to do when your values stress obedience and not questioning authority and management is not responsive to an interest based approach?

It seems that in earlier times, the members of this same union decided that a little confrontation was not contrary to their basic values. In 2008, after going for months without a contract, they launched a series of targeted one-day strikes. The result: they got a new 3 year contract with a 15% raise spread over four years.

This, according to the NY Times, is the Labor Day lesson: “There are times when people in power will not listen until confronted by people with power.”

For the full story, click here

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.


Michael A. Zeytoonian
Why Don’t More People Use Collaborative Law? (9/12/11)
Michael A. Zeytoonian

Lately some of us lawyers who use Collaborative Law (“CL”) in civil disputes other than divorce cases have been brainstorming about the expanded use of CL in employment, business, probate, construction and other areas of law. In the spirit of transparency that is an important element of CL, we’ve focused on why more people don’t use CL to resolve their business or employment or other civil disputes.

We know that CL is an efficient and agile process and is ideal for many disputes, especially those in which preserving relationships is important. We also know that it is not the best process for every dispute. For some cases, mediation may be better; for others arbitration and for still others, litigation. For many disputes, often a hybrid approach works best, which may utilize some of the principles and techniques of CL, but not all of the elements of the widely accepted CL process model.

We also know that many people, perhaps you as you read this, are not familiar with CL, how it works and why it is an excellent approach to resolving disputes. There is a huge public education challenge whenever something new is introduced, until either there is a highly publicized use and success story, or until it gradually works its way toward that “tipping point”, after which it has the all important momentum and critical mass. This is especially true of a profession like law, which is slow to adapt and change.

Since one of the desired features of the CL process is that it is confidential and private, you won’t read about many successes. But if you happen to be talking to someone who resolved their discrimination or business partnership or contract dispute over this summer without going to court or very early on in the process, they will tell you that in their cases, they resolved in a better way that litigating.

What are the key ingredients to getting a case resolved efficiently? First is the desire by the parties involved to focus on resolution by intention and design and not go to court. Once that has been decided by the parties, the next step is to design together a process that works best for them. This might include elements of CL like early, voluntary and full sharing of all relevant information, or the use of a shared neutral expert, paid for equally by the parties. Or it might include the use of a mediator with a certain style or approach which is a good fit for the case. Sometimes parties and lawyers need a mediator who primarily facilitates the dispute resolution. Other times the situation calls for a mediator that can provide useful case evaluation feedback to the parties to help them adjust their assumptions about the strengths and weaknesses of their case or what their case is worth.

The second ingredient is one that most people overlook because they incorrectly feel they have no choices. This often unasked question opens the door: How quickly do you need the matter resolved? If speed and efficiency are important to parties in a dispute (i.e. resolved in less than 6 months), you should not be considering litigation. Mediation and CL are designed for efficiency. Arbitration used to be efficient and still can be, but it has become more and more like litigation, only without the court system. Civil procedure and some administrative procedures are not designed for speed and efficiency. FYI, one administrative process that is really well designed and efficient is the process used for Special Education cases, but that is the topic of an upcoming blog post.

This third ingredient is the determination of how to structure and manage the sharing or exchange of all relevant information (referred to in litigation as “discovery”) so we can quickly and intelligently develop options for resolution. Simply put, discovery is what makes litigation take so long. In today’s business and employment litigation, the heavy cost of electronic discovery often mirrors the cost of legal fees.

This third factor – information exchange – is important and needs its own blog post. It will be the focus on my next blog post.

Dispute Settlement Counsel by Michael Zeytoonian.


Patricia Porter
AudioBlog: What Gives Conflict A Bad Name? (9/12/11)
Patricia Porter

Differences and disagreements – we deal with them all the time. They are conflicts, though we don’t bother to label them as such. We listen and consider, we build solutions, we problem solve, and then we move on. Other times, something snaps – and we suddenly find ourselves standing in the middle of an ugly mess, arguing perhaps, or getting out of the room as quickly as possible. In this segment of the Texas Conflict Coach, we’ll consider what turns a simple disagreement into a conflict, and strategies to keep conflict at the lowest possible level.

Susan Shearouse has over twenty years experience helping people resolve their differences. Her expertise is in improving working relationships, creating a safe place for thorny conversations, managing strong emotions, and providing collaborative problem-solving processes. Susan often explains that she earned a life degree in conflict – on the job, at home and in her community. After completing a Masters degree in Conflict Resolution from George Mason University, she has applied her academic knowledge to real world challenges inside government agencies, and major corporations as well as small businesses and nonprofit organizations.

Based on her experience, she recently authored Conflict 101: A Manager’s Guide to Resolving Problems So Everyone Can Get Back to Work, published by AMACOM (a division of the American Management Association).

Listen here:


Listen to internet radio with Texas Conflict Coach on Blog Talk Radio
Texas Conflict Coach Audio Blog by Pattie Porter