Wednesday, March 9, 2016

Alternative Dispute Resolution in the Arab Gulf Region






Building the 
ADR Tribe


Seth Godin's book, Tribes: We Need You to Lead Us (2014), has played a big role in my thinking and behavior since I read it shortly after its publication. 


Amazon describes the theme of the book as: 
A tribe is any group of people, large or small, who are connected to one another, a leader, and an idea. For millions of years, humans have joined tribes . . . . It’s our nature. Now the Internet has eliminated the barriers of geography, cost, and time. All those blogs and social networking sites are helping existing tribes get bigger and enabling new tribes to be born―groups of ten or ten million who care about a political campaign, or a new way to fight global warming.

Who is going to lead all these tribes? . . . . Anyone who wants to make a difference now has the tools at their fingertips.

Tribes will make you think (really think) about the opportunities for leading your fellow employees, customers, investors, believers, hobbyists, readers…. It's not easy, but it's easier than you probably imagine.
For more, see his TedTalk here.


My New Tribe

On February 27, 2016, several members of the informal group known as the Arab & International Arbitrators visited from Dubai to meet with their counterparts in Doha.  In November, I had traveled to Dubai to attend one of the groups meetings and to begin building ADR relationships in the Gulf countries.  I met three marvelous people -- Dr. Hussam Al Talhuni, John P. McGowan, Jr., and Diana Bayzakova -- who are leading the Dubai tribe. 

Once I learned they were planning a trip to Doha, I began activating my still modest list of ADR neutrals in Doha.  I reached out to the Clerk of the Qatar International Court & Dispute Resolution Center, Christopher Grout.  I reached out to my Qatar University College of Law colleagues, and I reached at to arbitrators I had met when they began discussing a Doha chapter of the Chartered Institute of Arbitrators

As part of this process, I had several calls with my Dubai counterpart, which eventually led to an invitation to facilitate a conversation about "capacity" in the region.  This invitation fed directly into my own curiosity about the state of ADR in the Arab Gulf.

I fashioned the following questions to prompt the conversation.  I am thankful to my colleagues on the ABA DR Section listserve who suggested some additional angles to my inquiry.

Discussion Questions 
  • Does the region have a sufficient number of neutrals to handle the disputes arising here? Enough arbitrators, early neutral evaluators, mediators, group facilitators, etc.?
  • To enhance this capacity, what kind of training should neutrals in the region have available to them?
    • Substantive.
    • Procedural.
    • Ethical.
    • Cultural.
  • How do we build demand for alternative dispute resolution (ADR) services among businesses, government entities, civil society, and courts? What kinds of trainings and other interactions should we offer these potential users of ADR services?
  • How do we help lawyers understand ADR and its uses in disputes that they handle on behalf of clients? How do we help them advise clients about arbitration, mediation, and other ADR-processes?
For about 30 minutes, we used the questions to prompt a very lively conversation.  

Discussion Take-Away Points

In General:
  • Courts in the Gulf region have no infrastructure for referring cases to ADR, whether statutory or by court rule.
Arbitration:
  • Arbitration is the leading form of ADR by virtue of contract clauses typically imposed by expat companies whose expertise is much desired in a country that is scaling up at a very fast pace in anticipation of the World Cup. They have the contractual/bargaining leverage to require the clauses. 
  • Government entities that have had experience with arbitration have not prevailed in most cases (4 out of 5 was the number given) and are now shy of participating in arbitration in the future when they feel the home courts will treat the government better.
  • Government entities wonder if arbitration can provide “justice.” 
  • While many people hold themselves out as arbitrators, good arbitrators are hard to find. “Good” includes substantive competence, especially in construction-related matters. 
  • Parties tend to pick lawyers as arbitrators, because even if they have not had formal arbitration training, they have some respect for legal process and procedural justice. 
Mediation:
  • Virtually no mediation is occurring in the region in litigated disputes.
  • Mediation has taken some root in Dubai in the form of a mandatory pre-trial ADR.
  • If mediation is to take root in Doha at all, it would likely be through a court or government imposed system. (Does such a thing exist already in specialized courts in Doha like the Landlord-Tenant court?)
  • Law firms trying to find competent mediators must go all the way to London. No real capacity exists in the region. Again, they are looking for mediators with substantive expertise, especially in construction-related disputes.
  • By having to go to Europe to find good mediators, the cost of mediation is high. 
Negotiation:
  • Very few people, including local lawyers, have training in interest-based negotiation. Accordingly, they have difficulty conceiving of a process, like mediation, that can bridge the hardened positions of parties. 
In short, the region is fertile ground for building capacity to solve problems using tools that are still not widely accepted in the region.  

And, I feel lucky that I can serve this community in ways that will evolve as I learn more.  

Thursday, February 25, 2016

Civil Law versus Common Law





Groundhog Day as an Analogy



This week, I taught my Qatari students the difference between Common Law and Civil Law systems.  As I heard myself explain the major differences, I found myself wondering which system might be "better."

In doing the research for the class, I learned that the civil law system has the widest application worldwide.  About 150 countries have adopted it.  Born in Europe and derived from Roman law, it found its most famous expression in the Napoleonic Code of France. 

The idea behind it is simple.  The code organizes the law in a small book, easily accessible by the common man, who then knows with much greater clarity his or her legal rights and the procedures required to enforce those rights.  That citizen does not need to review -- at least in theory -- any case that has applied a particular section of the code.  Instead, the code serves as the primary authority and judges applying it are not bound by legal precedent created in earlier cases.  The text says what it says and that is enough.

The civil code legal system is like the film Groundhog Day, especially when Bill Murray's character, Phil Connors, wakes to the same day and fails to learn any new lessons of life.  At the same time, while faced with the same set of daily events or "facts," he is free to create whatever day he deems appropriate. 

One website describes the plot of the movie this way:
A weather man is reluctantly sent to cover a story about a weather forecasting "rat" (as he calls it). This is his fourth year on the story, and he makes no effort to hide his frustration. On awaking the "following" day he discovers that it's Groundhog Day again, and again, and again. First, he uses this to his advantage, then comes the realization that he is doomed to spend the rest of eternity in the same place, seeing the same people do the same thing EVERY day.
Another website further explains:
Murray plays Phil Connors, an arrogant Pittsburgh TV weatherman who, during an assignment covering the annual Groundhog Day event in Punxsutawney, Pennsylvania, finds himself in a time loop, repeating the same day again and again. After indulging in hedonism and committing suicide numerous times, he begins to re-examine his life and priorities.
In other words, a judge working in a civil law system handles each new case as if he has never seen a case like it before.  It is a whole new "Groundhog Day." 


Common law systems, in contrast, build on history.  Judges in these systems make rulings by applying the applicable law to the facts of the case.  They look to prior cases or precedent for analogies to the pending case, they distinguish similar cases, and they create new caselaw where none controls the particular situation pending before them. 

Using the Groundhog Day analogy, the common law system reflects Phil Connor's growth later in the movie, when he begins to learn from his experiences and tries to become a better man worthy of the love he seeks.  Each day he builds on the knowledge gained the "day" before even though he lives the same day over and over.

I know.  It is not a perfect analogy.  But, I do hope it captures some of the differences for my students.

Tuesday, February 16, 2016

Why Teach Legal Writing in English?









Growth Sucks!




"We were hoping the college would drop the requirement. That's why we waited so long to take the course."  So said a candid senior student this past week.

I teach Legal Research and Writing 1 at Qatar University College of Law.  Even in the U.S. students find the course challenging.  It forces them to grow in ways they resist.  And, it's a lot of work! No passive learning in this course.  Students produce a Memorandum of Law over the course of the semester. And learn critical thinking skills.

So, the course is hard even for native English speakers.  But here, in Doha, I am teaching Arab students who take the course in English. Some students have very good English language skills, even if they are not so confident about them. Some students read at about a fourth grade level.  My job is to help them engage in very sophisticated legal thinking while they read and write in English.

Why English!  Many of my student evaluations last semester expressed love and respect for me, personally and as a teacher.  But, they also expressed great dismay and concern about having to take the class in English.  They want to be and feel successful in their studies, and this course interjects requirements that can undermine their self-image.  

So, why?!!!!   Over a very long period of time, the administration of Qatar University College of Law have agreed that the next generation of Qatari lawyers, judges, and political leaders must be able to think and write in English.  It is the international language of law.  As Qatar plays an increasingly bigger role in the world, it needs employees and citizens that can interact in that world with great skill and fluency.

So, my little course fits into a broader program design to teach lawyering skills in English. 

I admire my students.  They are bright, beautiful, ambitious, and hard-working.  Even the student with modest English language skills has greater language skills than me.  I can say about 15 words in Arabic at this point.  I can recite a nursery rhyme in Russian.  I can sing along to French pop songs.  I can ask "where is the nearest discotheque" in Italian.  That's really about it.  So, I admire my students for taking on the intellectual work I ask them to do.  I hope they know that I try my best to help them traverse the demands of the course. 

On a more practical level, learning these lawyering skills while improving their English language skills could make them more attractive to future employers.  An article that appeared in The New York Times today  -- Young Saudis See Cushy Jobs Vanish Along with Nation's Oil Wealth -- suggests why this skillset may become critical to finding future employment. While the article focuses on the job prospects for young Saudis, parallels may exist in Qatar. 

Finally, I recently spent the day providing conflict resolution training for professionals working for one of the largest realty companies in the Mideast. The trainees were mostly expats from India, Egypt, Ireland, and other countries.  I was deeply impressed with their English language skills and their critical thinking skills. I wish my students had watched this event. Perhaps it would help them understand that these folks may be their future colleagues. These professionals have high expectations largely because the business world demands it.

Friday, February 12, 2016

Brave. Grateful. Uncomplaining.








Working on Your Craft



This week, I began discussing some of the ideas in Elizabeth Gilbert's new book: Big Magic: Creative Living Beyond Fear (2015). Today, I want to summarize some of her suggestions about doing creative work.  She says:
  • Make things. Then share them with an open heart.
  • You can live a long life, making and doing really cool things the entire time.
  • Thank creativity for having blessed you with a charmed, interesting, passionate existence.
  • Simply vow to the Universe to write forever, regardless of the result.
  • Be brave. Grateful. Uncomplaining.
  • Never ask writing to be easy. Ask only that it be interesting.
  • Sneak off and have an affair with your most creative self.
  • Curiosity is the secret.  Curiosity is the is the truth and the way of creative living. Curiosity is the beginning and the end.
  • You will have the satisfaction of knowing that you passed your entire existence in devotion to the noble human virtue of inquisitiveness.
  • Don't let go of your courage the moment things stop being easy or rewarding.
So, do the work.  Do it with an open heart,  Be brave, joyful, and patient. 

Tuesday, February 9, 2016

Attitudes About Living a Creative Life











Devotion to the Work



I've been sharing some of my favorite quotes from Elizabeth Gilbert's new book: Big Magic: Creative Living Beyond Fear (2015).  These quotes explore attitudes about doing the work:

  • Measure your work by your dedication to your path.
  • Focus on the devotion to my creative work.  That is how to measure my worth.  I only have control over my discipline.
  • Just say what you want to say, then say it with all your heart.
  • Write a book to entertain yourself, not to help someone else.
  • Create whatever causes a revolution in your heart.
  • Work on your craft every day with steady discipline and love.
  • Make absolutely whatever you want to make.  It's nobody's business but your won.
  • Write with the fealty of a holy pilgrim.
  • Frustration is not an interruption of the process.  Frustration is the process.
  • Mere completion is an honorable achievement in its own right.  What's more, it's a rare one.
  • Release something that is good enough. 
  • Don't rush through the experiences and circumstances that have the most capacity to transform you. 
  • Never be ashamed of the work.  You did your best with what you knew, and you worked with what you had, in the time that you were given.
  • You were invited and you showed up. You cannot do more than that.
With that coaching, I am tackling my pending writing projects with new attitudes and energy.  

Saturday, February 6, 2016

Ideas Need Your Attention















They Are Big Magic





At the end of last year, I read Elizabeth Gilbert's new book: Big Magic: Creative Living Beyond Fear (2015).  You know her from her earlier work: Eat, Pray, Love.

I loved the central theme of the book.  She argues that creativity is our birthright and inheritance. Birthright because we are part of a profoundly abundant and creative universe.  Inheritance because we come from generations of people who got things done through creative problem-solving.  They created useful and beautiful tools, objects, art, books, music, and other forms of expression.

She says: "You will find people who spent their lives making things.  This is where you come from. This is where we all come from.  Human beings have been creative beings for a really long time -- long enough and consistently enough that it appears to be a totally natural impulse."

And this: " I have the right to collaborate with creativity because I myself am a product and consequence of Creation."  "How can I best live out my destiny?"

And this: "[I]n order to live this way -- free to create, free to explore -- you must possess a fierce sense of personal entitlement, which I hope you will learn to cultivate."

One of her suggestions resonated profoundly with me.  It is the topic of ideas.  First, we should receive our ideas with respect and curiosity.  She says:

Ideas are a disembodied, energetic life-form.  Ideas have a consciousness.  They are driven by a single impulse: to be made manifest in our world through collaboration with a human partner. Through human efforts, an idea is escorted out of the ether and into the realm of the actual. 
Ideas search for available and willing human partners.  An idea will try to get your attention.
In other words: "You are a partner to inspiration."  "The work wants to made and it wants to be made through you"

But, she also cautions us.  If we do not pay attention to ideas when they need it, they will leave us and search for another human partner.  She says: " My genius waits around a lot of the time to see if I am truly serious about this line of work."

I love that.  I have seen ideas simply leave me because I became distracted, bored, or overwhelmed.  I let my attention abandon them, and so the ideas abandoned me.  Gilbert suggests we should wish them well and hope they find a new loving home that does make them manifest.

Any of your precious ideas needing your attention?

Wednesday, February 3, 2016

My Second Semester in Qatar Starts on Sunday











Committed to 
High-Quality Legal Education

So, I am re-posting these teaching tips here for easy retrieval as I need them.  Two law professors that I admire for their commitment to high quality legal education offer them for our use.

Students? What do you think of these suggestions?