Mediation: Better Results, Fewer Ruined Relations
In High-Gear New Jersey, More Stress than Sleep
Corrections or additions?
These articles by Bart Jackson and Kathleen McGinn Spring were prepared for the June 13, 2001 edition of U.S. 1 Newspaper. All rights reserved.
Safety for the Internet: Space Age Insurance
When buckskin-clad fur traders first plied their canoes
along the great lakes of the New World, they encountered risks never
envisioned by Lloyds of London or any European insurer. So 17th century
trappers formed their own self-insuring schemes and Lloyds lost the
fur trade. Fortunately, after 400 years, traditional insurers have
learned to become more responsive to new realms and many are striving
hard to meet the needs of those brave new E-traders out in the online
frontiers.
The extent and limits of available protection, which companies offer
what, and even where some of the hidden risks lie are among the topics
at the New Jersey Insurance Coverage Institute’s day-long seminar,
“Insurance Issues in Cyberspace,” on Thursday, June 14, at
8 a.m. at the Sheraton, Iselin. The meeting will present a panel of
insurers headed by Daniel McGraff of Insure Hi-Tech. Cost: $45.
Call 973-422-6446. Other speakers on the schedule are CPA Mark
Gallagher, who will attempt to point out the potential risks. Cost:
$45. To register call Dawn Wilczynski at 973-422-6446.
The New Jersey Insurance Coverage Institute, directed by attorney
Robert Chesler of Roseland-based law firm Lowenstein Sandler,
serves policy holders seeking advice in all the many aspects of insurance
law. They provide programs throughout the year on such topics as bad
faith insurance and employment law coverage.
“You have to understand,” says Chesler, “our nation goes
through new waves of litigation. A while back it was environmental,
then employment. Now the hot trend is intellectual property. This
current shift puts E-commerce people in a tough spot.” However,
Chesler says there are enough insurance products existent around to
protect even the most esoteric E-business. Chesler, who was born in
New York, earned his bachelor’s at Rutgers and Ph.D. at Princeton,
and then moved up to Harvard for his law degree. He has returned to
the Garden State for his practice, which currently is limited to insurance.
The old standbys of intellectual property — trademarks, logos,
copyright, patents, and other intangibles created through intellectual
effort, readily adapt, Chesler says, from the office desk to the computer
desktop. This, however, is not reason for complacence. Stephen
R. Elias, author of NoLo’s Intellectual Property Law Dictionary
states that “intellectual property law changes almost as rapidly
as the new technologies it seeks to define and regulate.”
If this is so, how can the potential policy shopper hope to find cutting
edge protection?
Seminar speaker Lynda Bennett agrees with Chesler that many
insurance companies have now come up with several workable coverage
formats, but she warns that this means most policies have been newly
re-written. Bennett, an attorney with Lowenstein Sandler, lists several
caveats in selecting a new policy.
First, learn exactly when you have to give notice of a claim to your
insurer. Traditionally, if you are named in a copyright infringement
suit, you did not have to file a claim until the actual suit was brought.
Now, more companies are insisting that valid claims must be filed
immediately after the first notification by the opposition’s lawyer.
Some insurers require you to provide your own defense lawyer, some
don’t, says Bennett. Some may demand you use their lawyer. Some policies
may have a settlement clause. This could mean substantial pressure
to accept a damage payment that falls short of the amount of your
insurance coverage. Yet if you enter the world of fine print with
your eyes sharp and open, new tech insurance could be a lifesaver
against a myriad of onslaughts. Some of the kinds of coverage available
include:
Hacker Coverage. Should a “playful” hacker swipethe credit card information from your clients and sell it, your clientscan surge in upon you waving damage suits. Considering the potentialof such damage, many direct mail firms are finding this insurancewell worth the minimal premiums.Virus Downtime. When a hardware malfunction, or some strangevirus or other piece of magnetic whimsy, brings your system crashingdown for several hours, who knows how much money you are losing? Andtherein lies the problem. No one does exactly, yet. While many insurancefirms will offer protection against any limit of such business interruptus,very few have developed standard formulas for payment.”If your factory line fails,” says Bennett, “most insurersknow exactly the cost to you and have it backed up by decades of actuarialexperience. But we just haven’t had decades of E-commerce and manystartup companies haven’t been able to quantify damages. This frequentlymeans putting you, the claimant, to proofs.”For this reason, Bennett advises, keep careful continuous journals,breaking down your income experience over a line of individual timesegments. If you can come to your insurance company with exact cashfigures for periods similar to the downtime, your claim will carrya lot more clout.Cyberfraud. Depending on how it’s framed, such coveragecan prove to be a true Catch 22. A host of insurance firms offer protectionto firms accused of cyberfraud. Justly so. Because you are using theInternet, you could be hit with RICO (racketeering) claims in additionto the civil actions of wronged individuals. However, Chesler notes,you usually cannot be convicted of fraud unless it involves intentto defraud. No intent — no need for an insurance claim. But ifyou have been proved intentionally fraudulent, the insurance companywill not pay one dime, because it cannot insure against criminal acts.Thus your only hope for coverage is if you can prove your misdeedfalls into the next category:Negligent Wrongful Acts. Bennett urges every policy shopperto get as broad a definition as possible to catch cyberfraud withinthis category. Make sure to understand conditions under which coveragewill apply before signing, she advises.Invasion of Privacy. Seldom are websites as carefullyworded or thought out as even the most basic printed corporate brochure.Too often they are dumped into the laps of technical experts who gleanand assemble tidbits into a beautifully glitzy whole. Chesler hasnoted myriad instances of inadvertent, and very possibly actionable,misuse of client confidentiality.Selling of client lists is also a frequent invasion that can openyou up to vast damages either individually or via a class action suit.A broad array of specially tailored policies are available that cancover such suits. However, here again you stand a better chance ofan accepted claim if you can prove negligence. If you sold the listfor profit deliberately, your insurance carrier may not pay claims.Bennett urges companies with an Internet presence to conductan internal audit to assess their risks for these types of law suits.She strongly urges cyberexplorers to make insurance coverage partof the cost of doing business. Like those first fur traders, businessesmay reap great rewards, but they also face a host of unknown risks.With all that cutting edge labor, it is well worth it to check outthe available protection. After all, anyone’s canoe can get upset.— Bart JacksonTop Of PageMediation: Better Results, Fewer Ruined RelationsIt’s tempting to say “It’s not personal, it’s justbusiness,” but J.D. Rockefeller knew the real truth: All businessis always personal. “Know the man; then you’ll know his sellingprice,” the tycoon would mutter to his cronies.Nowadays, the stiff-necked businessman who backs up his commercialrelationships with a battery of attorneys frequently ends up payingdearly and unnecessarily. Increasingly, business folk are seekingnot so much victory as solutions among people. Now in some cases facilitatorsand mediators are providing firms with swifter, cheaper — andoften more farsighted — solutions to employee claims and businessdisputes.The fifth annual Alternative Dispute Resolution (ADR) Conference,”Beyond the Basics: Strategies for Practitioners and Neutrals,”on Friday, June 15, at 8:30 a.m. at the Sheraton in Iselin is an all-dayevent for mediators, and for those who are interested in becomingmediators. Sponsors include the New Jersey Association of ProfessionalMediators, the Institute for Continuing Legal Education (ICLE), theAmerican Arbitration Association, the New Jersey State Bar Association,and the Society of Certified Public Accountants. Cost: $210. Call732-214-8500.One thing making this ADR seminar so timely is the recent U.S. SupremeCourt decision concerning Circuit City. By a narrow 5 to 4 vote, thecourt upheld that employees who previously agreed to the firm’s policyof submitting claims to a binding arbitration process must abide bythe outcome. Claimants cannot run to court asking for a second biteat the apple after binding arbitration (U.S. 1, May 16).”Mediation has been the true sleeping giant for the past 20 yearsand this undoubtedly will arouse it,” says seminar host and attorneyHanan Isaacs. From his offices at 601 Ewing Street, Isaacs haslabored to ward off unnecessary litigation for two decades. Accreditedand active in both the American Arbitration Association and the Associationof Professional Mediators, as well as an adjunct professor of ADRfor Seton Hall Law School, Isaacs says “mediation is older thanwritten history.” When Agamemnon and Achilles arrived at an impassebefore the gates of ancient Troy, they took their case to wise oldNestor. Such tribal counselor roots, Isaacs says, guide mediatorsinto humanizing a dispute. “Arbitration serves a definite purpose,but it is still a win or lose situation,” Isaacs says. “Itcan give you a single Pyrrhic victory at the cost of a potentiallyprofitable relationship.”Even in a strong, straightforward dispute, Isaacs says mediation providesa broader scope of methods. In a typical case, a buyer might complain:”I’ve been cheated, you sold me a defective product and now won’tstand behind your own junk.” The vendor might snarl back: “Itwas not defective. If your clumsy oafs on the production line hadused it properly, it would have lasted for years.”Amid these glowers and invectives enters the mediator. Mediators areselected by agreement by both parties from among the New Jersey Associationof Professional Mediators’ 200 accredited members. They have a minimumof 18 hours of training (the average is closer to 100) of training,and have apprenticed with seasoned mediators.The mediator can call upon a creative panoply of techniques not availableto a judge, and often not even to an arbiter. These techniques include:Setting up a dispute system design. A frequent tool ofthe in-house facilitator or mediator is to have both sides write outsome basic rules of engagement. This pre-negotiation Geneva Conferencegenerates spokespeople and eases each side into working together.Rules might include that the initial brainstorming ideas must remainunfettered and uncriticized.Finding the goal. “Most important,” says Isaacs,”is to discover what each of the disputants really wants out ofthis relationship.” The buyer probably does not want to gain aswift and withering settlement that will kill the vendor as a futuresupplier. “Tell me how you guys first got started in businesstogether,” Isaacs may ask casually. Then, in an atmosphere ofrelaxed nostalgia, come the old stories and hopefully a realizationthat the true goal is to get rid of this bad blip and let the relationshipflow profitably on.Thus seeking the goal beyond the immediate dispute becomes primaryin employee claims, says Isaacs. So often the employee seeks a littlemore respect or recognition of his extra efforts. The cash from aquick fix settlement may temporarily symbolize that respect, but itwon’t solve the problem or fill the employee’s hidden need.Side caucusing with individuals. This technique providesa great advantage over formal litigation. While a judge is not permittedto speak with either client without attorneys for each side present,the mediator can meet with one side and quietly delve beneath thevarious layers and side issues of a dispute. “Family-held companiesare incredibly riddled with inner fractions and splits,” saysIsaacs. “Sometimes if I can spend five hours sewing up the riftbetween father and son co-owners, we can return and hammer out a solutionwith the original disputants in an hour.”Role Playing. Before you snigger, remember the maxim.All business is personal. If it opens doors of discovery in maritalcounseling, role playing can work just as well in arguments betweena buyer and a vendor, or an employer and his worker. “Get outof the box,” says Isaacs. “Seek that human solution.”Encouraging in-house facilitation. While it may soundlike training one’s self out of a job, a good mediator will aid thedisputants, particularly in employee/employer cases, to establisha set program for handling similar claims when they arise again.While mediating is all indoor work with no heavy lifting, itis in no way easy. Staying neutral, but becoming involved enough toactively seek a creative solution, requires a facile wit and a certaintemperament.John Linden, communications chair for the NJAPM, says “Iwill never forget standing in an office in Phillipsburg, and watchingthe mediator chasing one disputant down the hall and screaming atthe top of his lungs.” Apparently he was not quite the right manfor the job. But if you think you can work out a clever solution whilestaying aloof from the passions around you, mediating could be thecareer for you. You do not need to be an attorney, although many mediatorsare, and no license is necessary in New Jersey. Mediators do not needto be members of the Association of Professional Mediators, but thosewho do seek this group’s accreditation must have a minimum of 18 hoursof training — offered at Rutgers and other colleges, and mustserve an apprenticeship. Many members are attorneys or psychologists.Strong business experience, while considered very much of an asset,takes a second chair to exhaustive training for the APM Board.As more and more companies seek to avoid the cost of litigation, itjust might prove a wise move to catch the coat tails of the wakeningmediation giant. All you have to do is stick out your shingle andstart soothing. Good luck.— Bart JacksonTop Of Page“>Business Side of the FeteImagine creating a 2,000-person business to operatejust one day of the year. Outside. In any weather. That business,of course, is the Fete, the annual fundraiser held for the benefitof the Medical Center at Princeton. This year the Fete, one of Princeton’smost enduring traditions (although it is actually held in West Windsor),takes place on June 16, from 9 a.m. to 5 p.m. on the Princeton Universityfields off Washington Road.Begun in 1954, the Fete is run entirely by volunteers. This year 2,000people are lending a hand under the direction of co-chairs CarolynSpohn of Skillman and Dee Shaughnessy of Princeton. For Spohnand Shaughnessy, June 16 will be the culmination of a solid year ofwork, during which they have coordinated the efforts of 75 committeechairs.The Fete, now in its 48th year, is a marvel of coordination any businesswould admire. Year after year, sometimes despite ankle-deep mud, endearingregulars, including pony rides, an arcade of sports games, a seriesof tents selling everything from badminton racquets to antique cups,and booths tempting passersby with fresh strawberry shortcake andcharcoal broiled hamburgers are staffed and ready for business.In addition to the main event, which truly signals the coming of summer,the Fete’s organizers put on a dinner dance for up to 680 revelerson the evening before the fair, sponsor a 10K race, and raffle offa classy car. (This year a Mercedes SLK convertible with a stickerprice of $46,000.)Among the tasks: Send out 3,000 invitations to the dinner dance; get4,000 parking spots ready; print and distribute 7,000 programs; erect35 tents; and install 35 refrigerators.The Fete’s take is never revealed for security reasons, but, giventhe crowds that materialize no matter what the weather, it is reasonableto assume that the Medical Center gets a big boost from the all-volunteereffort. Pulling off the Fete is no mean feat in this I’m-just-too-busyera of long work days and over-scheduled kids.Top Of PageIn High-Gear New Jersey, More Stress than SleepThere are still fields of corn and soy beans just afew minutes drive from Route 1, but the Route 1 corridor in no wayresembles “a sleepy farm town in Iowa,” says Dr. NupurLahiri. Day after day Lahiri, director of Princeton’s Life EnhancementInstitute, treats central New Jerseyans who have maxed out on stress.”New Jersey is a hot spot for large, large corporations,”Lahiri says. “People have high stress jobs. The expectation forperformance is so high.” Even the kids are strung out on stress.”Schools here are very high performing,” she says. “Everybodyis in high gear.”Lahiri gives a free talk on “Generalized Anxiety Disorder”on Monday, June 18, at 7 p.m. at the Life Enhancement Institute at10 Jefferson Plaza on Raymond Road. Call 609-924-0912.Lahiri, who trained in general psychiatry at Upstate Medical Centerin New York, and in child psychiatry at UMDNJ, has been practicingin Princeton since 1987, and founded the Life Enhancement Institutein 1999. The Institute takes an integrated treatment approach, offeringgeneral medicine, psychotherapy, fitness counseling, nutrition counseling,yoga, diagnostic services, disease prevention, and more. This approachis the result of Dr. Lahiri’s perception that “today’s medicineis very compartmentalized.”In looking only at the organ in which a patient identifies pain, Lahirisays, doctors frequently miss a diagnosis. “Amongst my friends,many people have been to the E.R. two or three times,” she says.Complaining of chest pains, they go through “a million dollarwork-up.” When advanced diagnostic tests turn up nothing wrongwith their hearts, her friends, suspecting stress, often turn to psychiatrists.Before stress gets to the level of chest pain, a serious symptom thatoften does call for an extensive medical work-up, Lahiri says it oftenmanifests itself in a less dramatic way. She lists some common symptomsas “a little muscle ache, a strained face, dry mouth, clammy hands,stomach cramps, and just feeling a little anxious all the time.”Insomnia is another common sign that stress is building to an unhealthylevel, as is a tendency to startle easily or to be hypervigilant.Sometimes, Lahiri says, some training in relaxation techniques isall that is needed to get the stressed-out executive — or hischild — to calm down. In other cases, psychotherapy or medicationmay be indicated.Lahiri has these suggestions for multi-tasking professionals who wantto avoid succumbing to generalized stress disorder:Turn off the computer, and go to bed. Dr. Lahiri, whogives a seminar called “Sleepless in Princeton,” says goodsleep hygiene is key in keeping stress at bay. Go to bed at the sametime every night, she says, but don’t expect to fall right to sleepif you are all keyed up. “Develop a fixed bedtime routine,”she suggests. Take a shower, or listen to music — but not, presumably,anything that will get you dancing.Relax before heading for the highway. “Doing 10 minutesof relaxation exercises in the morning allows you to start the dayat a lower level of adrenalin,” she says.Bring sneakers to work. Exercising at least three timesa week keeps stress at bay. Consider building exercise into the workday, says Dr. Lahiri.Go easy on the java, and the wine too. It’s not all thathard for corporate man — or woman — to go through two potsof coffee a day, and the caffeine takes a toll, Dr. Lahiri says. Cutback, and watch alcohol consumption too.It might not be a bad idea to start following Dr. Lahiri’s suggestionssooner rather than later. For while she has seen that corporate lifetakes a toll on the nervous system, she is now seeing that being tossedfrom corporate life is no picnic either. Her office is now seeinga fair number of stressed-out downsized executives. If working inCentral Jersey is stressful, living in Central Jersey without a jobcan be even more of a challenge. Now, take a deep breath. . .Previous StoryNext StoryCorrections or additions?This page is published by PrincetonInfo.com— the web site for U.S. 1 Newspaper in Princeton, New Jersey.
