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Articles & Publications
Leave Chevron Deference Alone to Sustain Agency, Judicial Balance
FedArb experts argue Chevron deference should be preserved Overruling it would empower nonexperts, create uncertainty The US Supreme Court is considering whether to overrule or severely cut back on what is known as Chevron deference. It would be a mistake for the court to do that. Federal agencies such as the Federal Energy Regulatory Commission,… Read more »
Preparing an Effective Mediation Statement
Preparing an effective mediation statement is a critical part of the mediation process. The mediation statement is often the document that gives the mediator his or her first impression of counsel and the client. It is particularly important when the mediator does not hold a joint session but proceeds immediately to caucuses. The purpose of… Read more »
Testing Your Arbitration Dispute in a Mock Arbitration
A valuable preparation option for any high-stakes arbitration is the mock arbitration, which serves many of the same purposes as mock trials and jury research for court cases. Mock arbitrations serve to: Identify strengths and weaknesses in a party’s case and arguments; Show where and how case presentation and cross examination can be improved; Help… Read more »
Ten Ways To Know When To Undertake Mediation
Practitioners often wrestle with the question “when is the best time to undertake mediation of a dispute?” Is it before litigation has ensued although the controversy has arisen? Is it at the outset of the litigation once the complaint has been filed? Is it only after there has been some discovery, an exchange of documents… Read more »
How to Avoid and Break Mediation Impasse
The very reason for mediation is that the parties are in dispute, whether it a broken business contract, frustrated joint venture partners, a terminated executive, a securities class action, insurance counterparties or mass tort claims. My job as a mediator is to search for and bring the parties to a solution. Everything I do from… Read more »
What Panama Canal Award Ruling Means For Int’l Arbitration
The Aug. 18 Grupo Unidos por el Canal SA v. Autoridad del Canal de Panamá decision by the U.S. Court of Appeals for the Eleventh Circuit is an important decision for international arbitrators and practitioners in several respects, including some unusual procedural twists and a surprising substantive conclusion that should not go unnoticed. The ruling… Read more »
Don’t Ignore the Benefits of Joint Sessions in Mediation
Joint Sessions Are Valuable; How to Conduct Them Many mediators and counsel discourage the use of joint sessions in mediation. Counsel often believe that having the parties together in the same room (either physically or virtually) will exacerbate the tensions already present in the litigation and hinder resolution. Mediators often believe, with some justification, that… Read more »
Arbitrator Selection Is a Key Component of the Arbitration Process
Arbitrator selection is a critical component of every arbitration proceeding given that the selection will determine who will adjudicate the dispute. Commercial arbitration is a creature of contract. The parties in their contract provide for the governing arbitral organization and rules, if any, and how the arbitrator or arbitrators are to be selected. The parties,… Read more »
Merger Guidelines Should Provide For Competition Trustees
On July 19, the Department of Justice and Federal Trade Commission announced proposed revised merger guidelines. Immediately, negative critique appeared in the legal and business press, despite the fact that it is highly unlikely these draft guidelines will be substantively changed for political reasons. The proposed guidelines list 13 factors that alone or in combination… Read more »
Former Arizona chief justice to mediate between California and tribes
The tribes claim Gov. Gavin Newson violated the Indian Gaming Regulatory Act in negotiations over reviewing their casino gaming compacts. Four tribes and the state of California have agreed to allow former Arizona Chief Justice W. Scott Bales to mediate their long-running disputes over renewing gaming compacts. Bales served two years as Arizona’s solicitor general… Read more »
A Breakdown of the Latest Proposed SEC Cyber Regulations
Contact the author As many readers may know, the SEC has been engaged in rule-making on various cybersecurity issues intended to modernize its existing regulations and keep in line with emerging privacy and data security risks and norms. If adopted, it is likely that recently-covered entities will materially increase the compliance burdens on SEC-regulated entities… Read more »
Webinar: Ukraine and Reparations – An Update and a Call to Action for California International Arbitrators
From California International Arbitration Week 2023
On November 14, 2022, the UN General Assembly passed an historic resolution calling for Russia to pay war reparations to Ukraine and establishing an international mechanism to compensate Ukrainians for their damages as well as a register to document evidence and claims. The Ukraine government has invited Columbia Law School International Claims and Reparations Project... Read more »
Trump’s Greatest Deal
Tuesday April 11, 2023 – The spectacle last week of the former president in the dock was striking. For one who has been around the court system for more than a half century, it's natural to speculate on how this case will turn out. I won't make a prediction - there are too many unknowns.... Read more »
The Human Dimension
Former US judge Jeremy Fogel is passionate about giving disputants a chance to be heard November 25, 2022 – Retired federal Judge Jeremy D. Fogel isn't ready to quit his day job as the executive director of the Berkeley Judicial Institute, but he is enjoying the hands-on opportunity to help people resolve their disputes a... Read more »
The Supreme Court ends discovery for use in foreign arbitrations – or does it?
By Kennen D. Hagen and Jonathan Tompkins
International arbitration has long been a favored form of dispute resolution because of its efficiency, finality, and other salient features. Still, many parties in arbitration find situations that demand discovery akin to that available in U.S. judicial proceedings. One federal statute—28 U.S.C. § 1782 – has been used by parties in commercial and investor-state arbitrations... Read more »
Avoiding Pitfalls in Preparing a Mediation Term Sheet
If the parties can agree upon a settlement in mediation, it is essential that they put their agreement in writing, even if the mediation extends well into the night. Waiting until the next day can be dangerous since parties often change their minds about the deal after sleeping on it. The best way to memorialize... Read more »
Webinar: Columbia Energy Straight Talk with Cheryl LaFleur and David Hill | Energy Law and Policy
A View from the Bench with Judge Thomas B. Griffith
The Center on Global Energy Policy's Columbia Energy Straight Talk is a discussion series hosted by David Hill and Cheryl LaFleur, CGEP Adjunct Senior Research Scholars. In this episode, David and Cheryl hosted Judge Thomas B. Griffith, recently retired from the U.S. Court of Appeals for the District of Columbia Circuit. The U.S. Court of... Read more »
Letter in support of the DOJ/NIST/PTO draft policy statement on SEP remedies and licensing negotiations
TUESDAY, JANUARY 25, 2022 Letter by prominent antitrust scholars, lawyers and economists, in strong support of the DOJ/NIST/PTO draft policy statement on SEP remedies and licensing negotiations released in early December. Read the full letter here:
Putting in a Good Word for Compromise – James C. Freund
TUESDAY, DECEMBER 21, 2021 In the business world, the need for compromise arises both in making deals and in resolving disputes - a duality that's crucial to recognize in approaching the subject. Click here to read James C. Freund's article entitled "Putting in a Good Word for Compromise" that recently published in Alternatives. Read the... Read more »
Is Your Mediation Confidential? – By Robert J. Jossen
THURSDAY, NOVEMBER 18, 2021 A keystone to the mediation process is the assumption that all that takes place will be held confidential. Click here to read Robert J. Jossen's article that recently published in the New York Law Journal. Read the full article here:
Mass Arbitrations – By Kennen D. Hagen
MONDAY SEPTEMBER 20, 2021 Mass arbitrations are becoming the new class actions, and a multi-million-dollar legal headache for many companies. Click here to read Kennen D. Hagen's article that recently published on TodaysGeneralCounsel.com. Read the full article here:
Breaking The Mediation Impasse – The Mediator Proposal
MONDAY AUGUST 16, 2021 Many disputes come so close to resolving, but parties cannot seem to bridge that gap between them. Enter the mediator's proposal. Click here to read John Delehanty's article that recently published in the New York Law Journal about impasses and mediator's proposals. Read the full article here:
Even Handed – Retired US Judge A. Howard Matz has good judgment and an even temperament, lawyers say.
FRIDAY, MAY 21, 2021 Retired U.S. District Judge A. Howard Matz decided to step down from the Central District bench in 2013, in part, because he missed advocating. “I loved being a lawyer,” Matz explained. “And I wanted to continue to do that.” Matz said he learned a great deal about good lawyering while watching... Read more »
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
James Freund Mediator 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... Read more »
Implications of the ‘Data Fiduciary’ Provision in the Proposed New York Privacy Act
Joseph DeMarco Mediator, Special Discovery Master 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... 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 »