Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started. 

J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the International Institute for Conflict Resolution, known in the legal community as CPR, with Serena Lee, who's CPR's new president and CEO. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai, where I previously practiced. I also have the good fortune to be listed on the CPR arbitrator roster, which is called the Panel of Distinguished Neutrals. With me today, as I mentioned, is Serena K. Lee. Serena is a lawyer qualified in New York who previously practiced on the West Coast. Before joining CPR, Serena served as the Vice President of Operations for JAMS in San Francisco, where she managed three resolution centers, San Francisco, Santa Rosa, and Seattle, and oversaw approximately 85 neutrals. And before that, Serena was vice president with the AAA in the construction and commercial divisions, first in Seattle and then San Francisco. So as you can tell, Serena brings a wealth of experience and perspective to her new role and to the audience. And we're thrilled to have her because she's a very recent addition to CPR. She's going to give us some updates on everything that CPR has been up to and what she plans for CPR to do. Before we begin, let me just give some brief background information about CPR itself for those that aren't as familiar with it. CPR was established in 1977 in New York by James F. Henry to help businesses find better ways to resolve commercial disputes. CPR does this through the CPR Institute, which acts as a think tank and a thought leader, and through the CPR Institute's subsidiary, CPR Dispute Resolution Services, which provides dispute resolution and prevention services to users, including the administration of CPR's arbitration rules. CPR has a unique origin because it was established by in-house counsel from Fortune 100 companies to bring together corporate counsel and their law firm clients to collaborate on ways to reduce dispute resolution costs by finding alternatives to court litigation. Today, CPR has a membership community that comprises corporate counsel, law firms, academics, and neutrals. Over the decades, this unique membership community has produced a variety of thought leadership pieces, and innovative yet practical rules for arbitration and mediation, as well as the CPR pledge, which more than 4,000 companies and 1,500 law firms have signed to show their commitment to considering ADR for the speed resolution. So as you can tell, CPR, while it is an arbitral administrator, does a lot more and is relatively unique in the space in the way that it operates. So with that, let's turn to Serena a bit, because I want to hear from her about everything that CPR has been up to. Serena, welcome. 

Serena: Thank you so much, JP. Pleasure to be here. Good.

J.P.: Well, we're so glad you could join us. And I think, you know, one of the first things that our listeners would love to know is, how many cases did CPR administer in 2023? 

Serena: Well, thanks for the questions, J.P., and you're right. I think often people are interested in the number of cases CPR administered. So CPR Dispute Resolution, our arbitral provider subsidiary, administers cases, including complex commercial arbitrations, and offers a number of related services such as mediation, fund holding, appointment services, and others. Our first rule set ever published was actually a non-administered arbitration, and we offer services to help parties through those ad hoc processes. So there's really not a straightforward answer to your question because it depends on how we dissect the data. Oftentimes, parties don't tell us if they are using CPR for their ad hoc arbitrations. Sometimes the parties will come to us for only parts of the services they're seeking, such as for fund holding or for appointment or for conflicts checks. So I don't have a specific number of how many cases CPR has administered based on the data I just shared with you. But I can tell you that CPR dispute resolution handles fewer cases each year than the AAA or JAMS. But because we're smaller, our team is oftentimes very high contact and responsive to questions. So I guess it's all good. 

J.P.: That's a great answer. Now, it highlights a point, too, that I think is pretty interesting. What year, if I remember correctly, CPR introduced administered rules in sometime around 2010. Is that correct? 

Serena: Close. 2013 was when our first set of administered arbitration weeks were located. 

J.P.: Okay, so Serena, so the administer rules got introduced in 2013, and if I've understood you correctly, CPR still gets used relatively frequently by parties, or the CPR rules do, for non-administered cases. 

Serena: Correct. 

J.P.: What's the breakdown for administered cases between domestic and international cases? 

Serena: The majority of the cases that we are aware of were domestic, but we also have received international cases. They're devoted to certain regions, such as in Canada and in Brazil, being maybe our two most prominent areas where we have received international matters. 

J.P.: Interesting. And are there particular industries that feature more prominently in the cases than others? 

Serena: Well, from the industries that we've seen in the past few years, that they are, as many providers also experience, they come from a wide variety of industries and sectors. Employment, healthcare and life sciences, energy, oil and gas, accounting and financial service are some of our largest caseloads. We also see franchise, insurance, technology, sports law, construction, professional fees. I'm rattling off some of the ones that come to mind. Of course, straight commercial matters as well. And we do see sometimes unfair competition matters come in as well. 

J.P.: Interesting. So it's really a pretty broad range of disputes that CPR helps administer. 

Serena: Correct. 

J.P.: That's great. Now, how much of that is driven by CPR's membership? And it may be worth it when you answer that just to give a little bit of background on that and to explain how the CPR membership process works and maybe talk a bit about who some of the CPR members are. So to probably take this time to distinguish between the CPR Institute, which I'm going to refer to as the Institute, and CPR Dispute Services. So the Institute, of course, as you had mentioned, J.P., was started in 1977. And that is the think tank or the thought leadership portion of CPR and essentially why we exist. Now, CPR dispute resolution was created some three years ago to help parties who were interested in administered arbitrations or other ADR services to help administer those. So they were created as a subsidiary under the Institute to do so. There is a division between the Institute and the work that the Institute does and administration and dispute resolution services that CPR Dispute Resolution provides. Those who are interested in coming into the Institute as members of the thought leadership portion of CPR join as members and they can join as individuals, they can join as firms or as corporations. We have some of the largest organizations to the smallest companies in America who are interested in joining CPR Institute because they're interested in being part of the dialogue and workshopping ideas and solutions to issues they're seeing out in their business landscape. And law firms who also join as well as academics who want to contribute and also listen to what the businesses are asking for and what they're trying to resolve to make sure that the processes are efficient, that they're fair, that they are practical in a business context, and so forth. So I make mention of that because the Institute has very little to do with the case management. The only thing that the institute provides for CPR dispute resolution are the rules and the protocols are promulgated within the institute are then pushed over to the DR or the Dispute Services to issue out and to use. So those who file cases with dispute resolution services have no real interaction with the members. I hope that's clear. 

J.P.: It is clear. Yeah. And I think there's a lot to unpack there that's really fascinating and different than a lot of other institutions. So let me just take that in pieces if I could. So the Institute has, that's what has the 4,000 members and the 1,500 law firm members. Is that right? 

Serena: Yes. 

J.P.: Okay. What are some examples of say fortune 500 companies, if you don't mind sharing that are members of the Institute? 

Serena: Certainly, I mean, I can't name all 4,000, but if you actually just jump onto our website on the CPR Institute Board of Directors, you'll see some of the board members come from prominent companies such as Microsoft, Amgen, ConocoPhillips, I'm trying to think, Palo Alto Networks, and others. And the law firms, the biggest law firms in the country are part of the Institute. If you also look at our corporate leadership dinner brochure that's also online, you'll see some of the sponsors of the Institute listed, both corporate as well as law firm contributors. 

J.P.: Well, that's really interesting, Serena. So if I'm understanding it correctly, those members that you mentioned of the Institute are the ones that are creating the rules pursuant to which cases may be administered. Is that right? 

Serena: Well, it's a little bit more nuanced than that. The members can send associates and their in-house counsel and members of their in-house team to be part of committees within the CPR Institute, as well as law firms who also can comprise of neutrals and academics and attorneys from both maybe the more plaintiff's side and defense side. And they are the ones who workshop the protocols as well as the rules. So for instance, right now we are updating all of our rules as we do every five years and within the arbitration rules committee revision team, you'll see that there are members within all the groups I just mentioned, all the stakeholders who are involved at looking at the rules and discussing whether there should be updates. 

J.P.: Got it. So really, at the end of the day, is it fair to say the rules are being pretty heavily influenced by both potential users and law firms? Serena: Yes, I would say that the rules and the protocols are created to maximize efficiency. Obviously, the businesses are in the business of not being in law pursuits, at least our corporate members aren't. And also to make sure that the arbitrators who may have some input into whether the rules can be refined or tweaked to promote efficiency or expediency. So I would say that the end users have a lot of say into the rules. And also the academics who are in the space of dispute resolution are part of the committee and part of the conversation to ensure that the rules and the protocols that we're issuing meet due process. 

J.P.: That's really great. I mean, I think that's a really unique feature of CPR, that there's so much input from the actual users and the law firms that will likely be recommending it. It's a really unique feature that probably, if I understand it correctly, stems from the way that CPR was created. Is that correct? 

Serena: It's exactly correct. Now, because I worked with the two other arbitral institutions, the largest ones in the U.S., I can say for certain that I find the rules and the refinements of the CPR rules to be different based on the feedback from the field. 

J.P.: Interesting. Now that raises an interesting transition point, Serena, because you've been in this role, you haven't been in this role terribly long, right? When did you join CPR? 

Serena: My first day of CPR was on April 1st. So it's just been four months. 

J.P.: Wow. Okay. So still relatively fresh in the role. How have you found it so far? 

Serena: It's been just very, very enriching, I think, for years after being, decades of being on the provider side, to finally work with the end users and to talk to the people who are drafting ADR clauses and trying to think on how to avoid disputes early on or to resolve disputes as quickly as they can when they arise in a way that's fair and economical and business friendly. Meaning for everyone, all the parties involved in disputes. I'm really enjoying the fact that I can share the other side of the equation, so to speak, feel as passionately and as dedicated in resolving disputes in a way that can minimize cost and damage to relationships. That's been really rewarding. 

J.P.: I like that. You mentioned a way of minimizing damage to relationships, because it's something that I see a lot. I practice a lot in the life sciences space, and I find that arbitration in particular for those types of industries that have a lot of long-term collaborations like life sciences and some others can be really beneficial because it does allow parties to continue doing business together afterwards in a way that doesn't often happen with litigation. So that's a really interesting point to raise. And it sort of me to something else I wanted to just touch on too. Like, are there particular industries that you think CPR is better suited to than others? 

Serena: I’m racking my brain because I frankly can't think of an industry that could not benefit from the structure of CPR dispute resolution. I suppose if the parties in a dispute are interested in preserving relationships and have a say in the rules that are being used to resolve their disputes, and they want to make sure that the rules are ones that they can be assured that they are efficient, then they should know that the rules and the process by which CPR Dispute Resolution follows are based on the end users from its creation. I also think that because we are not as big as the other arbitral providers, our case managers are very responsive and experienced, not that they aren't in the other providers, but because our caseloads are smaller, the case managers at CPR dispute resolution can talk through the variety of a la carte services that are available to parties. If they aren't interested in full-blown arbitration, there is something different that we can talk to them about. Our complete case platform is a very secure case management system that was built specifically for dispute resolution. And since we accept submission agreements and our roles were developed by task force of all the stakeholders we just talked about, I think that there isn't a industry or a group that I don't think wouldn't benefit from using CPR, dispute resolution service. I know that seems perhaps a bit self-serving to say, but I think that might be true given the fact that come from the other providers as well. 

J.P.: Yeah, no, not self-serving at all. I mean, I think it's the best endorsement you can give. You know, it's a really broad statement that's reflective of how broad the Institute membership is and CPR's genesis. Well, now you've been in the role for four months, you mentioned. So let me ask you this, what would you like to accomplish for the remainder of 2024, given that we're sort of rolling in towards the end of the year? 

Serena: Well, I'm very much looking forward to amplifying CPR's mission, our resources, and to involve incredible members here in the U.S. and internationally. We've been primarily focused in Europe, as I mentioned, in Brazil, and I imagine that in subsequent years we'll expand more broadly to other countries. We are actually right now testing a new membership concept to connect our members into areas where they live and they work. So to that end, what I've planned to do is to launch our inaugural regional chapter of CPR, something we've never done before, in Seattle in November. I chose a city that had very strong corporate support. As I mentioned, Microsoft has been a corporate member of CPR for many years, and one of the board members of CPR, John Palmer, is a huge proponent for CPR and its resources. And I also chose Seattle for its vibrant legal community that actively uses alternative dispute resolution. 

J.P.: That's great. Now, tell the listeners a bit more about what you mean by the regional chapter. 

Serena: Sure. So I'm hoping that these regional chapters can connect and provide those in the legal community with an opportunity to engage in the same thought leadership on a local level and also to consider CPR. In, I think, the ADR space sees our role as the conveners of conversations and discussions. So while we can have national and industry-specific conversations remotely in this day of post-COVID discussions, we also wanted to bring an in-person experience to the local chapters that we are starting. It will be a pilot for us in Seattle. And what I'm hoping that we can provide for a local chapter of CPR is an ability to bring all the local general councils of the large corporations based in that city, as well as the law firms, the law schools, as well as the neutrals who practice in that area to come together, again, to get to know each other in a way that is meaningful so that they may learn from each other to hear each other's perspective in real time. And then to broadcast or transmit their ideas from a regional chapter onto the national roster. There's no reason why the thought leadership can't originate from a regional chapter such as Seattle. 

J.P.: That's great. Now, what are some of the other regions that you're envisioning regional chapters for? 

Serena: That's hard to say. We have had a very, very strong presence in Houston for decades now. The energy, oil, and gas industries have been great supporters of CPR. I surmise this because they are a very small industry where there are lots of repeat players in the space. So because we're conveners, I think that we may look into Houston as our next regional chapter. And then I think I'll have to see. I think there has been an appetite in other areas such as Chicago. And of course, I'd love to be able to start a chapter in California. 

J.P.: Right. Well, and obviously, California is such a large market. You could probably do one in Northern California and Southern California separately. But it remains to be seen, I guess, where you would want to go. 

Serena: Correct. I'm also very interested in making sure that we are actively engaged with our members of arbitrators. Our panel of distinguished neutrals has about 600 members, and perhaps I'm showing my years of working with the providers, but I do think that the arbitrators, mediators, and other neutrals within our panel are a hugely important component within CPR, and I like to engage with them in more ways in the coming years. And I know that our law firms and our corporate members really appreciate the role of CPR as the conveners. So to have the opportunity to talk to neutrals and academics about thought leadership in the dispute resolution space is very important to them. 

J.P.: That's great. Well, I think it's, you know, from my perspective as both someone who acts as both counsel and an arbitrator, I think it's really great when an institution does solicit the views of arbitrators because in so many ways they are the front lines of what's occurring, right? I mean, obviously end users have the biggest stake and should have the largest voice in my view because they are the people that are impacted by all this most. But certainly arbitrators do see, what works well, what may not work as well, areas that can be improved, things that might be made more efficient. So it's really important, in my view, to solicit the arbitrator's views. And that's a really great initiative. 

Serena: Thank you. And I actually think that it's almost vital to ensure that everyone that's in the ecosystem of dispute resolution understand the needs and expectations of each other and to make sure that the rules and protocols that we are promulgating and asking our neutrals to use in their processes make sense and that there is buy-in. And if there isn't buy-in, if there is a way to iterate a better system, that we capture that feedback and to integrate innovations and refinements to process as we move forward into the future. 

J.P.: That's great. I mean, absolutely. It's an inclusive environment that considers all the different stakeholders and all the different voices, always produces a better result. So wonderful to hear that that's something that you're considering. Now, that would be for 2024, which is a pretty ambitious agenda, it sounds like. What would you see or where would you like to see CPR in five years? 

Serena: Yeah. Well, in five years' time, I, of course, hope to continue to build on an even stronger CPR institute that can work collaboratively with additional stakeholders to identify ways that parties can resolve their disputes more effectively. There's sometimes, I think, a sentiment in the legal community that the use of mediation and arbitration is now a mainstay tool in resolving disputes, in legal disputes. But I still strongly believe that mediation, as is being used now, is still more evaluative. It'd be great if the parties are open to a more transformative process. And I've seen over the years, unfortunately, arbitration being conducted more like litigation. And the benefits of arbitration, namely being more streamlined, quicker, and more cost-effective, and so forth, are being eroded by attorneys who are either not understanding the advantages of arbitration's more informal process, and also arbitrators who may not be willing to streamline the process. So my hope is that CPR can continue to help keep the dialogue of better dispute resolution process, open, engaging, and responsive to the expectations of the parties who go into mediation and arbitration. CPR dispute resolution services, which of course, as I mentioned, only issued out its administered rules in 2013, has shown steady growth year over year as more companies are either submitting their disputes to CPR dispute resolution or they're opting to write CPR rules into the contracts because they're comfortable with the rules and the process designed by the end users. So I'm hoping that we can continue to grow CPR dispute resolution services as well. 

J.P.: It's a really important agenda to take on because there's absolutely a dialogue going on in the community right now that you're seeing on various platforms, particularly from arbitrators about, and some of the arbitrators that have been around for a little bit longer, about arbitration becoming too much like litigation, becoming too similar to court procedures, and becoming too burdensome to really achieve its purposes. And it's interesting to see that discussion arise because it sort of goes on hand in glove with, you know, the explosive growth of arbitration as an alternative process. And if it really becomes too much like court, then it's not really an alternative to court. It's just another sort of venue for promulgating those types of processes, which really defeats the purpose in some ways. So it's great to hear the CPR is taking that on and that you want to promote revisiting really what arbitration is about. 

Serena: Correct. And I think that we must be vigilant and not rest on our laurels that we think that alternative dispute resolution is being used widely does not mean that it's being used as well as we probably hope or have promised parties at times. 

J.P.: Yeah, absolutely. Absolutely right. The mere fact that somebody is doing something one way doesn't mean they're doing it right. That's a very, very, very good point. Right. Well, it sounds like if I'm doing my math correctly, in 2027, CPR as a body will have been around for 50 years. So it sounds like you've got a pretty good handle on where you want to see CPR when it hits its 50th anniversary. So that's pretty interesting. 

Serena: That's right. We are actually excited to celebrate our 50th. I believe that the Federal Arbitration Act, I think, goes first in celebrating its 100th year anniversary in 2026, I believe. 

J.P.: That's right. 

Serena: So in 2027, we'll celebrate our 50th. 

J.P.: Yeah, or maybe it's 1925. I can't remember, but there's certainly... 

Serena: Oh, I think you might be right. 

J.P.: I think they're certainly right around there. Either way. Well, good. Well, there's a lot of ground we've covered, and I think we could probably keep going all day. But it might make more sense to reserve my right to invite you back for a future update, because you've obviously got a lot that you intend to do, and it will be great to hear about how all that execution has gone on all these plans. 

Serena: Well, JP, I'd love to come back. I really enjoyed our time together and this experience and opportunity to talk about CPR. And my new role has been welcomed. And I hope that in five years' time or maybe in two years' time, I can come back and report on our efforts to expand our regional chapters and to report back on other projects that we are working on currently. 

J.P.: Absolutely. And I'll tell you right now, it'll be a lot sooner than two years time. It's certainly sooner than five years. I'm a little more impatient than that. So we won't wait that long, but thank you. It's been a real pleasure. That will conclude then our discussion of CPR. I want to thank Serena Lee for sharing her thoughts and vision for CPR. And I want to thank you, the listeners, for listening in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should feel free to reach out to Serena as well. I've had that discussion with her. I know she'd be happy to answer any questions you might have. We look forward to having you tune in for future episodes in this series. And we look forward to follow-ups with Serena in the future. So thank you very much. 

Serena: Thanks, J.P. 

Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

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