How Confidential Are Mediation Communications? – Judge Raymond T. Lyons

MONDAY, JULY 6, 2020 “Confidentiality is an important feature of the mediation and other alternative dispute resolution processes. Promising participants confidentiality in these proceedings promotes the free flow of information that may result in the settlement of a dispute.” “Were courts to cavalierly set aside confidentiality restrictions on disclosure of communications made in the context… Read more »

Mediations Forever Changed – Judge Vaughn Walker

FRIDAY, MAY 15, 2020 Seeing the advantage of using videoconferencing, I’m convinced that, in mediations, we’re not going to back to status quo after COVID-19. The COVID-19 pandemic and shelter-in-place orders under which most of us have been living have changed many aspects of our lives. Although not the most significant change in the larger… Read more »

Getting Real About Discovery in Arbitrations

MONDAY, MARCH 16, 2020 Arbitration is not like litigation. Among the ways they differ is the way in which discovery is treated. Because of the revolutionary impact on our business and personal lives of electronic communications, modern-day discovery is often an exercise in discovering, managing, and using electronic data. In addition, because of the relative… Read more »

Deal-Dispute Mediating: A Former Deal-Maker’s Perspective

FRIDAY, MARCH 13, 2020 This is prime territory for mediation—especially because it’s not easy for judges or arbitrators to resolve disputed issues of business judgment, nor may they impose on the situation the kind of resourceful business solutions that the parties can hopefully fashion with the mediator’s assistance. Most of the business disputes mediators handle… Read more »

Implications of the ‘Data Fiduciary’ Provision in the Proposed New York Privacy Act

MONDAY, MARCH 2, 2020 The proposed New York Privacy Act (NYPA), currently pending before the state legislature, could significantly contribute to the trend of stronger state data privacy laws appearing nationwide. While it has many core elements of other recent state data privacy legislation, such as California’s Consumer Privacy Act (CCPA), New York’s proposed law,… Read more »

Another arbitration service – FedArb – establishes new mass arbitration protocol

(Reuters) – With high-profile companies like Postmates, DoorDash, DraftKings and FanDuel tangling with the American Arbitration Association over AAA’s fee requirements in thousands of individual arbitrations filed against the companies, smaller arbitration services are sensing an opportunity. I told you last month about new rules adopted by the International Institute for Conflict Prevention and Resolution,… Read more »

Judge Vaughn Walker: Life After Life Tenure

A former colleague of mine, the late William H. Orrick, Jr. always described the position of federal district judge as the “best damn job in the world.” He said it so emphatically that his statement commanded agreement. Plus, in many ways, it’s true. So, why would any sensible person lucky enough to have attained that… Read more »

Forewarned is forearmed: The growing trend of mock trials” Published in the Daily Journal

“Find me an expert who lacks expertise.” While this may sound like an oxymoron, it is not an uncommon request when a law firm seeks a former federal judge to serve on a mock panel. The reason: the underlying adjudicator has limited familiarity with the subject matter governing the dispute so the former judge should… Read more »

Obstacles For Calif. As It Seeks Spot As Int’l Arbitration Venue – Published in Law360 – July 2, 2019

Lost among current headlines is the demolition of California’s invisible statutory wall that has kept international lawyers from representing their clients in California in multimillion-dollar international arbitration disputes.The “if we build it they will come” question is whether this will result in an influx of new international arbitration cases? Since the 1998 California Supreme Court… Read more »

Making the most of mock arbitrations

Increasingly, international arbitration practitioners are using mock arbitrations – like mock jury trials in the United States – as a valuable tool to assess the strengths and weaknesses of a party’s position and develop an effective way to present their case in the real arbitration. Claudia Salomon and Peter Durning of Latham & Watkins highlight… Read more »

Comparing Policyholder Arbitrations with Reinsurance Arbitrations

In the last twenty years, arbitration proceedings have been on the rise in disputes not only between direct policyholders and insurers (policy arbitrations) but also between insurers and reinsurers and between reinsurers and retrocessionaires (reinsurance arbitrations). Although there are differences between the two categories of arbitrations, there are more similarities than differences. This article reviews,… Read more »

What To Do Before, During And After IP Mediation

How intellectual property lawsuits get resolved can be critically important to the parties to those lawsuits. The right to sell an allegedly infringing product or service; the price for that product or service; sometimes the very existence of the company: All can be at stake in an intellectual property case. But our judicial system generally… Read more »

Sherman Act’s Int’l Reach — A Hot Issue In 2013 And 2014

A number of important cases regarding the reach of the U.S. antitrust laws to conduct occurring overseas percolated through the courts in 2013. In particular, courts struggled with the meaning and impact of the Foreign Trade Antitrust Improvement Act,[1] which limits the extraterritorial reach of the Sherman Act. Cases are presently pending in the Second… Read more »

It’s Time For A Change In US Digital Privacy Laws

It is the rare legal issue where the ACLU, the National Association of Manufacturers and the U.S. Chamber of Commerce end up on the same side. But that is currently the situation in a case pending before the federal court of appeals in New York, where these entities and other major corporations have lined up… Read more »

If Google Is A ‘Bad’ Monopoly, What Should Be Done?

Google Inc. is currently subject to antitrust investigations by state attorneys general in the United States, as well as antitrust authorities in the European Union. Google and its allies have mounted a vigorous public defense, arguing that Google’s activity should be immune from antitrust scrutiny or that imposing a remedy on Google would transform antitrust… Read more »

AUO Case Could Have Major Impact On Cartel Investigations

Appellate briefs were recently filed in the case of U.S. v. AU Optronics Corporation[1] pending before the United States Court of Appeals for the Ninth Circuit, which raise issues of critical importance in the prosecution of foreign cartel cases in the U.S.: (1) whether Section 1 of the Sherman Act[2] applies extraterritorially to price-fixing meetings… Read more »

A Rare, Important Robinson-Patman Decision In 9th Circ.

It is rare to see a Robinson-Patman decision these days. However, on July 19, 2013, the Ninth Circuit issued an important Robinson-Patman decision in the case of Gorlick Distribution Centers LLC v. Car Sound Exhaust System Inc., Case No. 10-36083 (9th Cir. July 19, 2013). In this case, the Ninth Circuit affirmed summary judgment on… Read more »

The Value of Mediation: A Network Spotlight on US District Judge Alfred J. Lechner, Jr.

The ACC recently published an interview with FedArb Panelist Hon. Alfred J. Lechner. Read the full interview here: The Value of Mediation: A Network Spotlight on US District Judge Alfred J. Lechner, Jr.

Billion-Dollar Technology Dispute Resolved with ‘Gig Judiciary’

Outsourcing aspects of ongoing federal litigation may be the new way to effectively and fairly resolve complex litigation. Recently, litigants found themselves sparring in a complex, multi-jurisdictional antitrust case over important but outdated TV technology. The litigation expanded to so many parties (over fifty) and jurisdictions (US and overseas) that it threatened to make the… Read more »

PRESS RELEASE: Ninth Circuit Confirms FedArb’s Vaughn Walker’s Settlement in HP Autonomy Securities Derivative Litigation

Palo Alto, CA December 12, 2017. The Ninth Circuit issued a memorandum opinion affirming the settlement mediated by former Chief Judge Vaughn Walker of the Northern District of California. Click on this link for the opinion. The settlement arose out of a shareholder derivative action filed in federal court seeking to impose liability on HP’s… Read more »


Federal Arbitration, Inc.’s General Counsel, Marian Scheuer, led a panel titled, “Can Arbitration Clauses Save Money?” at the 2017 Association of Corporate Counsel (ACC) Annual Meeting in Washington DC, Oct 15-18, 2017. The conference is the industry lodestar for in-house counsel, and is well attended by in-house counsel, law firms and contract service providers in… Read more »

“An important advantage of arbitration”

The result of pivotal decisions by the U.S. Supreme Court is that commercial disputes and sometimes claims by consumers are being removed from the courts and resolved by arbitration, without the benefits of jury involvement, judicial involvement, or appellate review. Since this is such an escalating trend in the overall manner in which our country… Read more »

“Hear not only what they say but what they must surely mean”

Mediation calls for different skills from those of an arbitrator or a judge. The mediator is attempting to bring the parties together and find the common ground that leads to a resolution. Mediation skills resemble the skill sets that lawyers develop. Good lawyers have to be the advocates for their clients, but they also have… Read more »

New Fast Track Arbitration

Perhaps the biggest knock on arbitration* is that most arbitration resembles private litigation —both in terms of costs and in the prolonged nature of the process. FedArb is unique among arbitration firms—it requires the arbitrators to adhere to a schedule and prevents them from requesting a delay. The innovative FedArb Rule provision which addresses the… Read more »

Minimizing Bias in Party Appointed Arbitrators

FedArb is adding an optional provision that enables parties to select arbitrators in a three member tribunal in such a way that the arbitrators do not know which party selected them. Under this process, litigants select arbitrators as before but channel their input through FedArb so that the arbitrator does not know what party selected… Read more »