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Mediating Executive or Other Key Employee Disputes
A successful mediation requires sensitivity and attention to the needs of each side, but mediating executive or key employee disputes requires some specific considerations and alertness to sensitivities that merit discussion. It’s a Person’s Career After All! First, and foremost, we are dealing with a person’s career –the place where the person has spent a… Read more »
My Journey to the Commercial Division, A World Class Business Court
One of the great joys of my professional career is the 21 years that I spent as a Justice of the New York State Supreme Court Commercial Division. The work was challenging and required a great deal of creativity and effort and sometimes extraordinary patience, but the rewards were always beyond measure. It gave me… Read more »
The Whys and Hows of a Mediator’s Proposal
It is a common refrain in mediations, “how about making a mediator’s proposal?” The answer frequently is “not yet” or “that’s not what I want to do.” What are the details behind the concept of a “mediator’s proposal” and when is it appropriate to be offered by the mediator and accepted by the parties? Mediation… Read more »
Efficiency Dept. Should Consolidate Antitrust Enforcement
In 1978, former President Jimmy Carter established the National Commission for the Review of Antitrust Laws and Procedures to recommend ways to expedite litigation, improve remedies, and review certain immunities and exceptions. As the late Arthur Austin, my former antitrust law professor at Case Western Reserve University School of Law, observed, however, the commission was… Read more »
‘Samsung’ Highlights the Costs of Arbitrating Mass Claims
The arbitration of mass claims is now available through all of the major ADR providers. The American Arbitration Association (AAA), JAMS, FedArb and CPR have developed special rules to govern the resolution of such claims. A bit of history is warranted. Most consumer contracts require that all disputes be resolved by arbitration. These contracts generally… Read more »
Arbitration Umpire Selection: What Makes Sense
Arbitration, of course, exists by contractual design. For this reason, considerable thought should be given to the terms of any contractual provision that provides for the resolution of disputes by arbitration. The parties are free to design an arbitration provision that forecloses certain issues that could arise once there is a dispute that needs to… Read more »
Confessions of Two Former General Counsels—Has Arbitration Changed or Have We?
Ten years ago if you asked us what we thought of arbitration we probably would not have had too many positive things to say. As former general counsels, we approached commercial disputes that could not be resolved via negotiation or mediation as bound for court. Not that we welcomed the idea of litigation, but we… Read more »
Exploring California’s Reputation: From Wild West to Arbitration Desination
California is well positioned as an arbitration venue, particularly for U.S. to Asia disputes, due to its geography, leading universities, experienced arbitrators, and capable judiciary. 1. California’s reputation and how to improve it. You have mentioned that California was, and in some quarters still is, viewed by Europeans as the wild, wild, West with out-of-control… Read more »
Lessons for International Arbitration From Recent U.S. Climate Change Litigation
The international arbitration community has publicly embraced the expectation that climate-change-related disputes submitted to arbitration will increase exponentially over the coming decade. Arbitral institutions and individual arbitrators, law firm practitioners, and academics have all forecasted that cases related to or impacted by energy production and distribution (both fossil fuel and alternative), supply chain issues and… Read more »
9th Circuit Arbitration Ruling Could Have International Implications
A recent U.S. Court of Appeals for the Ninth Circuit decision in Patrick v. Running Warehouse LLC offhandedly recognized an unusual and extremely important aspect of California law that the international arbitration community should keep in mind. And while the reminder raises a host of choice of law questions, it ultimately may make California law… Read more »
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 »