Company: Winning CM Strategies
Location: Sacramento, California
Email: janie@winningcms.com
Webpage: www.winningcms.com
Education: Pepperdine School of Law, Straus Institute
(Masters in Dispute Resolution)
Types of ADR services offered: Early Dispute Resolution (EDR), mediation, settlement conferences, ODR
Affiliated ADR Organizations: MBBI, WBENC, WOSB, PMI
Geographic area served: Pacific West Coast (California, Oregon, Washington)

Q: What sets you apart as a mediator?

A: The biggest differentiator is that I am a non-lawyer! I worked in the construction industry for over 20 years developing experience in strategic planning, scheduling, and operations for mega construction programs.

Q: Why did you want to become a mediator?

A: In my career, I consistently found myself delivering difficult information. I was able to develop processes to address these conversations in a collaborative, productive way. I have a passion about this work and thrive on being instrumental in changing the face of conflict and developing a path for teams to move forward toward program / project completion. I went and obtained a Masters in Dispute Resolution to further develop my skillset in facilitation, negotiation, settlements, and mediation.

Q: What percentage of your current legal practice is spent on ADR work?

A: I spend 80% of my time focused on ADR. The remaining 20% is spent on planning, scheduling, and claims avoidance for construction projects and operations.

Q: What characteristics or personality traits are important to facilitating settlement?

A: Difficult conversations often occur abruptly without an opportunity to prepare. The outcome of these conversations is a pivotal moment for the project team. This requires subject matter knowledge, emotional intelligence, and the ability to respond and manage a productive conversation.

Q: Many mediators are only called in after the parties are well down the path towards formal arbitration or litigation. Describe how you help mediate disputes during the project to help the parties avoid a formal dispute.

A: Most of the mediation work that I do is conducted during the project and before a formal dispute has been filed. I often facilitate “red-zone” planning for the last six months of the project and “alignment meetings” where the project/program has taken an unfortunate turn or strayed from the original vision and goals in the areas of cost, schedule, and quality.

Q: Mediators are oftentimes described as “facilitative,” “evaluative,” or “transformative.” How would you characterize your style?

A: Facilitative. I facilitate a productive approach to conflict with the goal of collaboration and alignment as the team works toward project completion and satisfying client requirements. I use a specific settlement process developed by Winning CM Strategies. The position of the team in the project lifecycle depicts which process is used. The project teams are taken through a process which identifies the exposure, interests, and areas where stakeholders are vested in their position. This takes time as conflict arises because these interests have become self-serving, taking the focus off the original project vision and goals. A conflict in construction is usually multi-stakeholder, characterized by layers of issues, interests and emotions which have been developed and triggered throughout the conflict. I coach project teams through a process and encourage the sharing of information with opposing parties. Teams with the goal of resolution should come prepared and without surprises to achieve a productive outcome.

Q: Do you recommend individual preparatory meetings with the parties and counsel prior to the joint session? Why or why not?

A: I do recommend preparatory meetings. This is the best opportunity for each side to prepare their positions, understand their exposure, the information gaps, and the opposition’s potential response. Surprises prolong the process and impinge the ability to come to a timely resolution. In complex cases, it may take time to organize the information and approach. The case may necessitate the need for a bifurcation of the case. Alignment on approach is essential for the best outcome.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Help the client understand their true exposure and a true estimate of the opposition’s BATNA.

Q: How do you use open-ended questions to help parties overcome impasse?

A: It is the mixture of using open-ended questions and facilitating the “connection of dots” through the means of strategic questions. Conflicts are filled with assumptions on how a position was developed, money was spent, and paths were taken. Open-ended questions give opportunity for stakeholders to answer and tell their story in a safe way.

Monday, March 21, 2022

USMCA Update: Rules of Origin and Dispute Resolution

After many years, Mexico, USA, and Canada successfully negotiated and replaced NAFTA (North America Free Trade Agreement), implemented in 1994, with USMCA (United States-Mexico-Canada Agreement), which took effect on July 1, 2020.

USMCA’s Chapter 4 addresses the rules of origin, an important topic for industries like automotive as well as construction. Rules of origin are the criteria used to determine the national source of a product, and will determine whether specific components are free of duties or subject to custom fees. In this regard, companies that use goods with several components are tied to the rules of origin.

Production chains are also affected because producers need to verify that the materials used in the goods comply with the rules of origin. If materials do not comply, producers will need to decide whether to pay customs fees or to use some other suppliers that comply with the rules of origin.

Another issue addressed is the way to solve any dispute related to the interpretation and application of USMCA. USMCA’s Chapter 31 creates a dispute resolution system which strives to operate under the principle of cooperation. Under such basis, a Party may request “Consultations” under Article 31.4, which is a procedure where a Party that feels USMCA is being applied unjustly and/or in an anticompetitive manner by another Party can notify the other Party in writing of the reason for the request and legal basis for the complaint. USMCA requires the Parties to make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution. If the Parties do not arrive a resolution through the consultations, they can start the procedure to establish a Panel to make findings, determinations, and recommendations.

On this basis, in August 2021, Mexico requested USMCA consultations with the United States to solve a dispute over differing interpretations of the automotive rules of origin.

The dispute relates to how the United States was calculating the Regional Value Content (RVC) for an automobile’s core parts to fulfill the rules of origin. Core parts of an automobile must have a 75% RVC to qualify as having USMCA origination.

Mexico argued that the United States’ interpretation imposes strict requirements inconsistent with considering a core part qualify as originating as long as it satisfies the 75% RVC requirement. This interpretation could make products cost more due to import duties and be less attractive than competitor markets.

The consultations did not resolve the dispute. For that reason, on January 6, 2022, Mexico requested a Panel, which under Article 31.9 consists of five members and may render findings, determinations, and recommendations regarding the differing interpretations. Canada recently announced that it would join Mexico in requesting the Panel. A decision is expected around September 2022. Although this dispute only relates to automotive rules of origin, it may affect all manufactured goods.

Author Juan Pablo Sandoval: jpsandoval@comad.com.mx.