ABA SECTION OF DISPUTE RESOLUTION

Course Materials for

Ethical Aspects to Consider While Building an Arbitration Practice

Part VI of the 2016 Arbitration Webinar Series

A Continuing Legal Education Webinar – March 28, 2017, 12:00 to 1:15 pm EST

Panelists: Gina Miller, Hon. Lynn Duryee (Ret.), and Darryl Darden

Moderator: Serena K. Lee

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Table of Contents

Page Title Author(s)

2 Presenter Biographies

8 PowerPoint Presentation

Gina Miller, Hon. Lynn Duryee (Ret.), Darryl Darden, and

Serena K. Lee

Nothing in these course materials is to be considered as the rendering of legal advice for specific cases,

and readers are responsible for obtaining such advice from their own legal counsel. These course

materials are intended for educational and informational purposes only.

PRESENTER BIOGRAPHIES

Panelists:

Gina Miller

Since joining JAMS in 1989, Gina Miller has become an expert in mediation and arbitration practices. Over the years, she has developed numerous programs to train neutrals in marketing, business development, and mediation skills. As Vice President, Miller oversees operations for Resolution Centers in California, Washington, and Nevada, and is responsible for creating new business opportunities and overseeing the implementation of regional and national marketing initiatives. Additionally, Miller works closely with the regional advisory committee to assist with panel recruitment and serves as the regional representative on the National Operations Committee on the implementation of policy. One of her key objectives is leading her team to consistently focus on and deliver superior client service.

Prior to being named Vice President, Miller served as Director of Operations for JAMS Southwest Region as well as the General Manager of JAMS Los Angeles, Santa Monica, Ventura, and Inland Empire Resolution Centers. Her vast experience at JAMS includes managing client services, case management, practice development, and operations, as well as marketing and business development. She has also developed and delivered more than 300 ADR presentations at law firms, bar associations, and insurance carriers.

In addition, Miller served as a panelist and presenter on various legal industry topics and has authored articles relating to developing a successful ADR practice. She has also been quoted in publications like The Daily Journal and Law360.com. She is the co-chair of the ABA Section of Dispute Resolution’s ADR Practice Management, Business and Skills Development Committee. Gina also serves on the ADR Committee of the California State Bar Association.

Miller received an M.B.A. in General Management from Keller Graduate School and earned her B.A. from California State University, Long Beach. She also attended the University of Pennsylvania’s Wharton School of Business for an Executive Management program. Miller has furthered her education by participating in numerous ADR training programs at JAMS and the Straus Institute for Dispute Resolution at the Pepperdine University School of Law.

Hon. Lynn Duryee (Ret.)

Judge Duryee has specialized in settling thorny legal disputes throughout her career, first as a trial court judge for 21 years, and now at JAMS as a full-time Neutral. She is known for her practical, personal, and get-it-done approach to settlement. Her deep experience in the law as well as her dedication to resolving disputes make her an excellent choice as a neutral.

As a Superior Court judge in Marin County, California, Judge Duryee resolved thousands of commercial, contract, and negligence cases. During her tenure as the supervising family law judge, she settled hundreds of high-conflict, high emotion cases and eliminated 100% of the court’s backlog by instituting

settlement programs where trained attorneys and therapists assisted the court in settlement conferences.

Outside of her duties at court, Judge Duryee has taught hundreds of courses to judges throughout California in all aspects of trial, evidence, ethics, and dispute resolution. She served as Dean of the B.E. Witkin Judicial College. Along with attorney Matt White, she cowrMastering Mediation: 50 Essential Tools for the Advanced Practitioner(ThompsonReuters, 2012). Currently, she teaches Civil Procedure as a Visiting Professor at University of San Francisco School of Law.

ADR Experience and Qualifications

Served 21 years as a trial court judge where she presided over and settled thousands of civil cases of all types

Elected by her colleagues as Presiding Judge of the Marin County Superior Court Under Judge Duryee’s leadership as a Supervising Judge, eliminated the court’s backlog in the

civil, family, and criminal divisions At JAMS, Judge Duryee has handled a wide range of real property, employment, personal injury,

construction, business, family trust, sexual assault, and professional negligence cases, and has been extremely effective in helping parties achieveresolution

Representative Matters

Business/Commercial

Commercial contract disputes involving claims for failure to pay, breach of fiduciary duty, fraud, theft of trade secrets, unfair competition, exercise of stock option rights, failure to pay commissions

Partnership dissolution and accounting claims Purchase and sale of professional practices, restaurants, wine business

Construction

Extensive experience settling construction defect cases, including condos, HOA claims, single family dwelling, and commercial spaces

Settled multiple claims between generals and subs, generals and owners, and claims involving design professionals

Experienced in reading plans, specs, contracts, scope of repairs, change orders, CC&R’s, warranties, and expert reports

Has presided over, tried, and arbitrated disputes between contractors, subs, and owners Judge Duryee’s father was a Builder and Designer of residential and commercial properties. She

grew up with construction every day

Employment

Extensive experience with cases for wage and hour, meal break, misclassification, Labor Code violations, and PAGA

Wrongful termination, discrimination in the work place, pregnancy discrimination, sexual harassment, hostile work environment

Disability, failure to accommodate, age discrimination Employment disputes between and among family members in family business Employment disputes involving public entities

Family and Estate Law

Extensive experience with settling cases between family members, including spouses, domestic partners, adult siblings, and claims arising out of family trusts and probate

Division of family properties

Insurance

Presided over and settled multiple cases involving coverage, Stearman claims, Cumis issues, and subrogation matters

Personal Injury/Torts

Settled, presided over, and tried hundreds of cases involving injuries and wrongful death auto, pedestrian, bike, truck, and motorcycle accidents

Successfully mediated claims for premises liability, including slip and fall, mold exposure, hazards

Extensive experience with sexual assault claims Investment fraud

Professional Liability

Managed, presided over, and settled hundreds of claims for professional negligence including medical, legal, dental, architectural and other design professionals

Real Property

Extensive experience resolving commercial and residential unlawful detainer cases, breach of warranty, violation of local rent control ordinances, and HOA issues with short term rentals

Extensive experience with mandatory pre-filing mediation of claims involving disclosure issues in real property purchase and sales

Settled multiple claims between neighbors involving easements, parking, landscaping, encroachments, views, privacy, noise, and harassment

Quiet title claims between family members or other co-owners

Honors, Memberships, and Professional Activities

"Turning the Page," ADR Profile, Daily Journal, May 5, 2015 "John J. Meeham Mentor of the Year," University of San Francisco, 2014 “Judge of the Year,” Marin Consumer Attorneys, 2013 Marin County Women Lawyers Award for Outstanding Leadership and Dedication, 2008 “Bernard Jefferson Award for Distinguished Service in Judicial Education,” California Judges

Association, 2002 Member, “Statewide Task Force For Impartiality of the Courts,” 2007-2009 Editor, “The California Bench,” 1998-2004

Background and Education

Judge, Superior Court, County of Marin, 1998-2014 Presiding Judge, 2006-2007 Supervising Civil Judge for 11 years between 1999-2013, (Supervising Family Law

Judge, 2005-2006; Supervising Criminal Judge, 2007-2008)

Judge, Municipal Court, County of Marin, 1993-1998 (Presiding Judge, 1995) Private civil practice, Marin County, 1979-1993 Adjunct Assistant Professor, Hastings College of the Law, 1983-1991 Instructor, Hastings College of the Law, 1980-1983 J.D., University of San Francisco School of Law, 1979 B.A., English, High Honors, University of California, Berkeley, 1976 Se hable español On parle francais

Darryl Darden

Lieutenant Colonel Darden honorably served the United States Army and

National Guard for 33 years. During his service he was involved in several combat

operations overseas as an Infantry Commander. He received several citations

during Operation Desert Storm to include the Bronze Star. He developed the

Army Diversity Program communication strategy. LTC Darden launched a well-

received program of professional development courses, which focus on team

building using diversity and capitalizing on team member individuality. He was

the Executive Director of the Armed Forces Network, Seoul Korea where he

managed nine media networks.

Since retirement LTC Darden has performed over 1000 civil mediations in San Bernardino Superior Court. He has mediated over 100 employment cases while serving Department of Fair Employment and Housing in downtown Los Angeles. As a County Superior Court Appointed Mediator he has successfully settled over 1200 small claims, family law, limited and unlimited jurisdiction cases. He performs pastoral family/marriage counseling and mediation throughout California. LTC Darden is an Adjunct Professor at Pepperdine University School of Law Straus Institute for Dispute Resolution where he teaches Mediation, Theory and Practice. While serving at the United States Military Academy at West Point, LTC Darden was the Professor of Public Speaking, the cadet speech and debate coach and a tactical trainer. Before entering active duty military, LTC Darden served 5 years as a police officer for the U.C. Berkeley Police Department. LTC Darden received his AB in Social Science from the University at Berkeley, a JD from Pace University School of Law White Plains, New York and a Master of Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University School of Law. He studied Group Counseling at Long Island University, Long Island New York. He is an American Arbitration Association 2013 Higginbotham Fellow, a member of the American Bar Association, the Southern California Mediation Association and the Inland Valley Arbitration and Mediation Service. Memberships: American Arbitration Association-Panel Member Inland Valley Arbitration Mediation Service-Panel Member ABA Section of Dispute Resolution LERA Department of Fair Employment and Housing, Mediator

Moderator:

Serena K. Lee

Serena K. Lee is the Vice President of the San Francisco regional office for the

American Arbitration Association (AAA), the world’s largest not-for-profit

provider of alternative dispute resolution (ADR) services established in 1927.

Since joining the AAA in 2006, Serena is responsible for overseeing the case management of large, complex commercial arbitrations in AK, WA, OR, CA, HI and Guam. In addition to maintaining the AAA’s roster of commercial arbitrators and mediators in western U.S., Serena also identifies and recruits

qualified arbitrators and mediators to join the AAA panel. She also provides both in-person and remote training to clients, attorneys and neutrals on the appropriate and effective use of dispute resolution processes.

A frequent speaker on ADR topics at legal and industry conferences and law schools, Serena Lee served as guest editor with Professor Richard Lambeck, New York University, for the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction’s Special Issue on Construction Dispute Resolution (J. Leg. Aff. Dispute Resolut. Eng. Constr. 3(2), 54-54 (2011)).

Serena received her B.A. in Political Science and in Communications from the University of Washington in Seattle. She earned her J.D. from Benjamin N. Cardozo School of Law in New York, NY, where she also received her Certificate in Dispute Resolution as well as her mediator certification from the Kukin Program for Conflict Resolution. Serena is a licensed member of the NY State Bar, 1st Department. She has served as an At Large board member for the Asian Bar Association of Washington (ABAW), is a member of the National Asian Pacific American Bar Association. Serena has served in the past as the Vice Chair of Membership and the Co-Chair of the Young Lawyers committees for the ABA Section of Dispute Resolution. Prior to law school, Serena served as the media director for PRR, Inc., a large public relations and marketing firm in Seattle, WA as part of her 10+ year career in the advertising/marketing industry. She can be reached at LeeS@adr.org.

S E R E N A K . L E E

DA R RY L DA R D E N , ES Q .

G I N A M I L L E R

H O N . LY N N D U RY E E ( R E T. )

Ethical Aspects to Consider While Building an Arbitration Practice

Darryl Darden, Esq. and Hon. Lynn Duryee (Ret.)

Ethical Aspects in Building Arbitration Practice

Transition from attorney, mediator, judge or other professional to neutral arbitrator

Ethical rules to master

Disqualification and disclosure

Ex parte communications

Pro tips for conducting cases

Marketing considerations

How to get started in your arbitration practice

Questions

Polling #1

Tell us about your background! Select the option that best describes you:

A. Attorney transitioning to neutral practice

B. Judge transitioning to neutral practice

C. Other professional transitioning to neutral practice

D. Full time neutral

Polling #2

Select the option that best describes your experience as a neutral:

a. I have handled fewer than 10 arbitrations

b. I have handled more than 10 arbitrations

c. My neutral practice has been mostly mediations but I’m interested in expanding into arbitration

d. I have handled lots of mediations and arbitrations

How to Ethically Market Arbitration Practice?

What you are marketing is yourself

You are your best advertisement for your services

You must conduct yourself at all times as a person in whom others would repose trust and confidence

Not as easy as it looks!

Transition

Transition from judge to arbitrator offers some learning opportunities but ethical aspects will be familiar

Transition from attorney or mediator to arbitrator offers some challenges. Sustained, overruled, how hard could it be? Ethical rules you probably haven’t thought of. Maybe your arbitrators didn’t model them? Traps for the unwary!

What Makes Transition a Challenge?

Lawyers and mediators are successful often because they have great people skills

Friendly, funny, smart, outgoing, lots of relationships

Judges = people who used to have a lot of friends

Why? No bias or appearance of bias; must hear and decide all cases assigned to you

Voice of Experience

What was your formal training to becoming a neutral?

What steps did you take to inform yourself of the role of the neutral?

Did you shadow or observe any arbitrations or court proceedings?

What have you found helpful in transitioning from lawyer to neutral?

Ethical Marketing Tool #1

Master ethical rules in your state

ABA has rules, available on line

CA has rules CCP 1821.85 et seq

JAMS and AAA have rules, available on line

Rules are similar to each other and have much in common with Canons of Judicial Ethics

“A judge must at all times uphold the dignity and integrity of the judicial process.”

Ethical Rules

It takes a while to appreciate the depth of them

“Minimum” rules – you can’t be too ethical

“Life changing”

Let’s look at a few

The Role of the Neutral

An arbitrator must act in a manner that upholds the integrity and fairness of the arbitration process. He or she must maintain impartiality toward all participants at all times.

Observe high standards of conduct

Uphold integrity and fairness of process

Free of bias – both in favor of one side or against another

Free of appearance of bias (so long, friends!)

Integrity and Fairness

What does it mean to act in a manner that upholds integrity and fairness of process?

Does it apply to arbitrator outside the room where the arbitration is occurring?

Does it apply to arbitrator in how she conducts herself in public? E.g., judges may not be members of organizations that practice invidious discrimination

Polling #3

You run into a close friend at a bar function. She says, “I’m so thrilled you are launching your arbitration practice! I have a case for you!” What should you do?

A. Thank her and ask her to tell you about it.

B. Thank her, ask her to tell you about it, and tell her how experienced you are in just this type of case.

C. Thank her, ask her to tell you about it, tell her how experienced you are, and that you usually rule for parties like hers.

D. Thank her and tell her you look forward to convening a conference call when the case has set.

Maintain Impartiality Toward All Participants

Be impartial

Be aware of your biases – in favor and against (don’t fool yourself and think you have none)

Be aware of your getting drawn into a case. Which side should win? Am I rooting for one party or the other? Do I find myself wanting to help one side? Am I becoming annoyed by one?

Embroilment

The Problem with Friends

We think we can be fair

Of course we’re fair

“I can rule against him and feel okay”

But the real test is: Can you rule for him and feel okay? Will all participants have faith in the process if you do so? Or will loser suspect you just ruled for your friend?

Polling #4

A close friend of yours from law school represents a party in an upcoming arbitration. Her participation in the case will not affect your impartiality. You should:

A. Treat her the same way you treat the lawyer on the other side.

B. Disqualify yourself from hearing the case.

C. Do nothing.

D. Disclose your relationship with her to the participants in the arbitration.

AAA Canon II

An arbitrator should disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality.

Trap for Unwary: Ex Parte Communications

“An arbitrator must not initiate, permit, or consider any ex parte communication or consider other communications made to the arbitrator outside the presence of all of the parties concerning a pending or impending arbitration.”

What is ex parte?

What is pending or impending?

Why is this hard?

Ethical Marketing Tip #2

Be mindful at all times of your position as a neutral

BOLO gossip

BOLO friends talking about their cases

Practice restraint in your discussion of cases you are handling

Uh, how’s the weather?

Customer Care

Your best customer base comes from satisfied customers and what they have to say about you.

You want them to use you again

You want them to say nice things about you even if they don’t use you again

The sad fact is, people will like you less if you rule against them. “Every time a judge rules…”

It’s why many neutrals won’t do arbitrations

Conduct During Hearing

Be prepared

Be engaged

Be interested

Be aware of informal setting

Don’t be in a hurry

Give participants all the time they need

Be respectful to all

Call a break when tempers flare

Polling #5

You are in Day 4/5 of arbitration and suspect that plaintiff is going down in flames. A document is introduced that tells you defendant was willing to settle for $100,000. You should:

A. Meet with all lawyers privately and suggest they settle the case.

B. Meet with all lawyers privately and offer to settle the case.

C. Meet with all lawyers and parties and discuss settlement of case.

D. Button your lip and continue to hear arbitration.

Conduct During Hearing

Resist temptation to settle!

Be available evenings and weekends

Do not use your cell phone during proceedings

Read everything the parties give you

Thank everyone for their hard work

Tell the parties what a great job the lawyers have done

Rule quickly

Write a good ruling and edit, edit, edit

Ethics Rules for Marketing

“An arbitrator must be truthful and accurate in marketing his or her services and must not make any representation that directly or indirectly implies favoritism or a specific outcome. An arbitrator must ensure that his or her personal marketing activities and any activities carried out on his or her behalf, including any activities of a provider organization with which the arbitrator is affiliated, comply with this requirement.”

AAA Canon 17

“An arbitrator may engage in advertising or promotion of arbitral services which is truthful and accurate.

“Advertising or promotion of an individual’s willingness or availability to serve as an arbitrator must be accurate and unlikely to mislead.”

On-line activity

Most ADR providers have bios of neutrals available on line

List education, training, experience; sample case; awards

“What clients say about this neutral”

Link to publications and presentations

Use of social media?

Be careful of “friends!”

What works for you?

Social events with bars and specialty bars

Volunteer with courts

Teach

Write

Whatever you do, be engaged and be real –stretch yourself but do what works for you. You will attract people by being ethical, approachable, and wise – not by telling people they should hire you!

My Experience at JAMS

JAMS has a marketing department made up of experienced and smart professionals

They tell me what to do: go to San Jose and teach this class. Write an article for this publication. Attend this event. Teach CLE.

I say yes. Even if I’d rather stay home and go to a yoga class.

Make a point to be with other neutrals!