Mediation: Better Results, Fewer Ruined Relations

">Business Side of the Fete

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 swipe

the credit card information from your clients and sell it, your clients

can surge in upon you waving damage suits. Considering the potential

of such damage, many direct mail firms are finding this insurance

well worth the minimal premiums.

Virus Downtime. When a hardware malfunction, or some strange

virus or other piece of magnetic whimsy, brings your system crashing

down for several hours, who knows how much money you are losing? And

therein lies the problem. No one does exactly, yet. While many insurance

firms 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 insurers

know exactly the cost to you and have it backed up by decades of actuarial

experience. But we just haven’t had decades of E-commerce and many

startup companies haven’t been able to quantify damages. This frequently

means 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 time

segments. If you can come to your insurance company with exact cash

figures for periods similar to the downtime, your claim will carry

a lot more clout.

Cyberfraud. Depending on how it’s framed, such coverage

can prove to be a true Catch 22. A host of insurance firms offer protection

to firms accused of cyberfraud. Justly so. Because you are using the

Internet, you could be hit with RICO (racketeering) claims in addition

to the civil actions of wronged individuals. However, Chesler notes,

you usually cannot be convicted of fraud unless it involves intent

to defraud. No intent — no need for an insurance claim. But if

you have been proved intentionally fraudulent, the insurance company

will not pay one dime, because it cannot insure against criminal acts.

Thus your only hope for coverage is if you can prove your misdeed

falls into the next category:

Negligent Wrongful Acts. Bennett urges every policy shopper

to get as broad a definition as possible to catch cyberfraud within

this category. Make sure to understand conditions under which coverage

will apply before signing, she advises.

Invasion of Privacy. Seldom are websites as carefully

worded or thought out as even the most basic printed corporate brochure.

Too often they are dumped into the laps of technical experts who glean

and assemble tidbits into a beautifully glitzy whole. Chesler has

noted myriad instances of inadvertent, and very possibly actionable,

misuse of client confidentiality.

Selling of client lists is also a frequent invasion that can open

you up to vast damages either individually or via a class action suit.

A broad array of specially tailored policies are available that can

cover such suits. However, here again you stand a better chance of

an accepted claim if you can prove negligence. If you sold the list

for profit deliberately, your insurance carrier may not pay claims.

Bennett urges companies with an Internet presence to conduct

an internal audit to assess their risks for these types of law suits.

She strongly urges cyberexplorers to make insurance coverage part

of the cost of doing business. Like those first fur traders, businesses

may 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 out

the available protection. After all, anyone’s canoe can get upset.

— Bart Jackson

Top Of Page
Mediation: Better Results, Fewer Ruined Relations

It’s tempting to say "It’s not personal, it’s just

business," but J.D. Rockefeller knew the real truth: All business

is always personal. "Know the man; then you’ll know his selling

price," the tycoon would mutter to his cronies.

Nowadays, the stiff-necked businessman who backs up his commercial

relationships with a battery of attorneys frequently ends up paying

dearly and unnecessarily. Increasingly, business folk are seeking

not so much victory as solutions among people. Now in some cases facilitators

and mediators are providing firms with swifter, cheaper — and

often more farsighted — solutions to employee claims and business

disputes.

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-day

event for mediators, and for those who are interested in becoming

mediators. Sponsors include the New Jersey Association of Professional

Mediators, the Institute for Continuing Legal Education (ICLE), the

American Arbitration Association, the New Jersey State Bar Association,

and the Society of Certified Public Accountants. Cost: $210. Call

732-214-8500.

One thing making this ADR seminar so timely is the recent U.S. Supreme

Court decision concerning Circuit City. By a narrow 5 to 4 vote, the

court upheld that employees who previously agreed to the firm’s policy

of submitting claims to a binding arbitration process must abide by

the outcome. Claimants cannot run to court asking for a second bite

at the apple after binding arbitration (U.S. 1, May 16).

"Mediation has been the true sleeping giant for the past 20 years

and this undoubtedly will arouse it," says seminar host and attorney

Hanan Isaacs. From his offices at 601 Ewing Street, Isaacs has

labored to ward off unnecessary litigation for two decades. Accredited

and active in both the American Arbitration Association and the Association

of Professional Mediators, as well as an adjunct professor of ADR

for Seton Hall Law School, Isaacs says "mediation is older than

written history." When Agamemnon and Achilles arrived at an impasse

before the gates of ancient Troy, they took their case to wise old

Nestor. Such tribal counselor roots, Isaacs says, guide mediators

into humanizing a dispute. "Arbitration serves a definite purpose,

but it is still a win or lose situation," Isaacs says. "It

can give you a single Pyrrhic victory at the cost of a potentially

profitable relationship."

Even in a strong, straightforward dispute, Isaacs says mediation provides

a 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’t

stand behind your own junk." The vendor might snarl back: "It

was not defective. If your clumsy oafs on the production line had

used it properly, it would have lasted for years."

Amid these glowers and invectives enters the mediator. Mediators are

selected by agreement by both parties from among the New Jersey Association

of Professional Mediators’ 200 accredited members. They have a minimum

of 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 available

to a judge, and often not even to an arbiter. These techniques include:

Setting up a dispute system design. A frequent tool of

the in-house facilitator or mediator is to have both sides write out

some basic rules of engagement. This pre-negotiation Geneva Conference

generates spokespeople and eases each side into working together.

Rules might include that the initial brainstorming ideas must remain

unfettered and uncriticized.

Finding the goal. "Most important," says Isaacs,

"is to discover what each of the disputants really wants out of

this relationship." The buyer probably does not want to gain a

swift and withering settlement that will kill the vendor as a future

supplier. "Tell me how you guys first got started in business

together," Isaacs may ask casually. Then, in an atmosphere of

relaxed nostalgia, come the old stories and hopefully a realization

that the true goal is to get rid of this bad blip and let the relationship

flow profitably on.

Thus seeking the goal beyond the immediate dispute becomes primary

in employee claims, says Isaacs. So often the employee seeks a little

more respect or recognition of his extra efforts. The cash from a

quick fix settlement may temporarily symbolize that respect, but it

won’t solve the problem or fill the employee’s hidden need.

Side caucusing with individuals. This technique provides

a great advantage over formal litigation. While a judge is not permitted

to speak with either client without attorneys for each side present,

the mediator can meet with one side and quietly delve beneath the

various layers and side issues of a dispute. "Family-held companies

are incredibly riddled with inner fractions and splits," says

Isaacs. "Sometimes if I can spend five hours sewing up the rift

between father and son co-owners, we can return and hammer out a solution

with 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 marital

counseling, role playing can work just as well in arguments between

a buyer and a vendor, or an employer and his worker. "Get out

of the box," says Isaacs. "Seek that human solution."

Encouraging in-house facilitation. While it may sound

like training one’s self out of a job, a good mediator will aid the

disputants, particularly in employee/employer cases, to establish

a set program for handling similar claims when they arise again.

While mediating is all indoor work with no heavy lifting, it

is in no way easy. Staying neutral, but becoming involved enough to

actively seek a creative solution, requires a facile wit and a certain

temperament.

John Linden, communications chair for the NJAPM, says "I

will never forget standing in an office in Phillipsburg, and watching

the mediator chasing one disputant down the hall and screaming at

the top of his lungs." Apparently he was not quite the right man

for the job. But if you think you can work out a clever solution while

staying aloof from the passions around you, mediating could be the

career for you. You do not need to be an attorney, although many mediators

are, and no license is necessary in New Jersey. Mediators do not need

to be members of the Association of Professional Mediators, but those

who do seek this group’s accreditation must have a minimum of 18 hours

of training — offered at Rutgers and other colleges, and must

serve 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, it

just might prove a wise move to catch the coat tails of the wakening

mediation giant. All you have to do is stick out your shingle and

start soothing. Good luck.

— Bart Jackson

Top Of Page

">Business Side of the Fete

Imagine creating a 2,000-person business to operate

just one day of the year. Outside. In any weather. That business,

of course, is the Fete, the annual fundraiser held for the benefit

of the Medical Center at Princeton. This year the Fete, one of Princeton’s

most 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 University

fields off Washington Road.

Begun in 1954, the Fete is run entirely by volunteers. This year 2,000

people are lending a hand under the direction of co-chairs Carolyn

Spohn of Skillman and Dee Shaughnessy of Princeton. For Spohn

and Shaughnessy, June 16 will be the culmination of a solid year of

work, during which they have coordinated the efforts of 75 committee

chairs.

The Fete, now in its 48th year, is a marvel of coordination any business

would admire. Year after year, sometimes despite ankle-deep mud, endearing

regulars, including pony rides, an arcade of sports games, a series

of tents selling everything from badminton racquets to antique cups,

and booths tempting passersby with fresh strawberry shortcake and

charcoal 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 revelers

on the evening before the fair, sponsor a 10K race, and raffle off

a classy car. (This year a Mercedes SLK convertible with a sticker

price of $46,000.)

Among the tasks: Send out 3,000 invitations to the dinner dance; get

4,000 parking spots ready; print and distribute 7,000 programs; erect

35 tents; and install 35 refrigerators.

The Fete’s take is never revealed for security reasons, but, given

the crowds that materialize no matter what the weather, it is reasonable

to assume that the Medical Center gets a big boost from the all-volunteer

effort. Pulling off the Fete is no mean feat in this I’m-just-too-busy

era of long work days and over-scheduled kids.

Top Of Page
In High-Gear New Jersey, More Stress than Sleep

There are still fields of corn and soy beans just a

few minutes drive from Route 1, but the Route 1 corridor in no way

resembles "a sleepy farm town in Iowa," says Dr. Nupur

Lahiri. Day after day Lahiri, director of Princeton’s Life Enhancement

Institute, 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 for

performance is so high." Even the kids are strung out on stress.

"Schools here are very high performing," she says. "Everybody

is 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 at

10 Jefferson Plaza on Raymond Road. Call 609-924-0912.

Lahiri, who trained in general psychiatry at Upstate Medical Center

in New York, and in child psychiatry at UMDNJ, has been practicing

in Princeton since 1987, and founded the Life Enhancement Institute

in 1999. The Institute takes an integrated treatment approach, offering

general medicine, psychotherapy, fitness counseling, nutrition counseling,

yoga, diagnostic services, disease prevention, and more. This approach

is the result of Dr. Lahiri’s perception that "today’s medicine

is very compartmentalized."

In looking only at the organ in which a patient identifies pain, Lahiri

says, 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 dollar

work-up." When advanced diagnostic tests turn up nothing wrong

with their hearts, her friends, suspecting stress, often turn to psychiatrists.

Before stress gets to the level of chest pain, a serious symptom that

often does call for an extensive medical work-up, Lahiri says it often

manifests itself in a less dramatic way. She lists some common symptoms

as "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 unhealthy

level, as is a tendency to startle easily or to be hypervigilant.

Sometimes, Lahiri says, some training in relaxation techniques is

all that is needed to get the stressed-out executive — or his

child — to calm down. In other cases, psychotherapy or medication

may be indicated.

Lahiri has these suggestions for multi-tasking professionals who want

to avoid succumbing to generalized stress disorder:

Turn off the computer, and go to bed. Dr. Lahiri, who

gives a seminar called "Sleepless in Princeton," says good

sleep hygiene is key in keeping stress at bay. Go to bed at the same

time every night, she says, but don’t expect to fall right to sleep

if 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 minutes

of relaxation exercises in the morning allows you to start the day

at a lower level of adrenalin," she says.

Bring sneakers to work. Exercising at least three times

a week keeps stress at bay. Consider building exercise into the work

day, says Dr. Lahiri.

Go easy on the java, and the wine too. It’s not all that

hard for corporate man — or woman — to go through two pots

of coffee a day, and the caffeine takes a toll, Dr. Lahiri says. Cut

back, and watch alcohol consumption too.

It might not be a bad idea to start following Dr. Lahiri’s suggestions

sooner rather than later. For while she has seen that corporate life

takes a toll on the nervous system, she is now seeing that being tossed

from corporate life is no picnic either. Her office is now seeing

a fair number of stressed-out downsized executives. If working in

Central Jersey is stressful, living in Central Jersey without a job

can be even more of a challenge. Now, take a deep breath. . .


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