Waiver of Class Action Without Arbitration Provision
In considering the debates raging about the enforceability of class action waiver provisions in arbitration clauses, I have always assumed that the arbitration clause was there just as a vessel to hold the class action provision.
New York’s Global Pound Conference
A group of very prominent stakeholders on commercial dispute resolution met at Cardozo Law School on September 12, 2016, to conduct the New York City session of the Global Pound Conference.
Boiling Down Consumer Arbitration
By now I've attended or participated in quite a few task forces, speeches, conference panels and other occasions in which the issue of class action waivers in consumer arbitration clauses has been discussed.
New Book on Business ADR
The ABA Business Law Section has about 50 substantive committees, many of which include subcommittees addressing dispute resolution in their field. In the past several months, many members of these various entities undertook a collaborative effort to “cut across the solos.”
Richard Nixon was responsible for many teaching moments. One of my favorites is the advance in American appreciation of the difference between the passive voice (“Mistakes were made”) and the active voice (“I made mistakes”).
David Hoffman Inspires Us Again
David Hoffman‘s capacity to lead by inspiration is unparalleled. When you attend a program or lecture by David, you feel as if he’s talking to you over a table, sharing stuff that matters to him in the hope that it will matter to you, too.
Party Autonomy: “Something They Teach at Pepperdine”?
A group of sharp and experienced thinkers on the mediation process offered a panel at the recent ABA Dispute Resolution Section meeting in New York before a packed crowd of just-as-sharp practitioners on the topic “Reevaluating the Role of Autonomy in ADR.”
Failure to Mediate Held as Ground for Summary Judgment
A recent decision of the Supreme Court of Nevada addresses the question whether a party’s ignoring a provision in a commercial contract requiring mediation prior to commencing litigation may be grounds for dismissal of the action.
Splendid New “Must-Have” Book on Mediation
Of all the volumes on mediation — many of them very good, some of them of great practical value — few are “must-have” volumes, in my mind. One “must-have” is Dwight Golann’s Mediating Legal Disputes. It is well-thumbed and as recently as last night I had occasion to pull it down to review techniques for overcoming impasse.
Oregon Supreme Court on Mediation Confidentiality
On December 10, 2015, the Oregon Supreme Court released an opinion in a case that required it, for the first time, to consider whether a client may assert a claim for legal malpractice relying upon factual allegations that reveal the substance of communications made in the course of, or immediately after, a mediation process.
A Company That Can’t Make Up Its Mind
I’m a consumer doing business with a company that can’t seem to make up its mind what the right approach is to handling disputes with its customers.
Mediation in Turkey
A recent trip to Turkey included a delightful visit at the offices of leading Turkish law firm Hergüner Bilgen Özeke and several of its members, including H. Tolga Danisman. It was also a chance to get an inside look at a rapidly developing legislative and judicial initiative in commercial mediation in this troubled and beautiful country.
Larson Frisby, of the ABA Governmental Affairs Office, recently offered an update on the status of federal ADR legislation and other related measures. Some of the most interesting proposals are briefly described in this article.
Larson Frisby, of the ABA Governmental Affairs Office, recently offered an update on the status of federal ADR legislation and other related measures. Some of the most interesting proposals are briefly described in this article.
Colin J. Wall Memorial
The death of Colin J. Wall on July 16, 2015, is a crushing blow to our profession and a personal loss to me.
Moral Imagination Revisited via Jon Hyman
The recent confluence of my Conflict Transformation work with the New York Yearly Meeting of the Society of Friends (Quakers) and the richly rewarding session offered by David Hoffman at the April 2014 Meeting of the ABA Dispute Resolution Section have made me increasingly aware of the moral component of non-adjudicative conflict resolution.
Najar on Dispute Management 2.0
Najar, his colleague Michael McIlwrath, his former colleague PD Villarreal, and others at General Electric were responsible for pounding into my head two distinctions. The first was the concept of “dispute management” rather than “dispute resolution,” and the other was “Early Dispute Resolution” rather than “Alternative Dispute Resolution.”
Arbitration as a Means of Avoiding Class Actions
In AT&T Mobility v. Concepcion, the Supreme Court held that a waiver of class action that was part of an arbitration clause in a consumer contract was enforceable despite state law to the contrary. Subsequently, in Oxford Health Plans v. Sutton, it upheld an arbitrator’s ruling that a class action could be sustained in a commercial arbitration agreement, because the arbitrator’s finding had drawn its essence from interpretation of the arbitration agreement itself.
Is Windows XP Unethical? Is Starbucks?
An interesting panel at the recent Spring Meeting of the ABA Business Law Section addressed questions of the ethical obligations of business lawyers in various hypothetical situations. Chaired by Ellen Pansky, the panel included Jeff Kraus, Jacqueline Unger and Lois Mermelstein.
Multidoor Courthouse on a Global Mediation Scale
A young, vibrant and alive mentor once taught me that it costs no more to dream big than to dream little. And Michael Leathes is dreaming big.
IBA Guidelines on Party Representation in International Arbitration
The International Bar Association has been responsible for several definitive guidelines to assist practitioners in international arbitration. These include the 2010 Guide for Drafting International Arbitration Agreements, the 2010 Rules for Taking of Evidence, and the 2004 Guide on Conflicts of Interest. To this we now add the IBA Guidelines on Party Representation in International Arbitration, adopted by the IBA Council on May 25, 2013.
What Deal Lawyers and Dispute Lawyers Can Learn From Each Other
It sometime sometimes seems that the community of business lawyers is divided into two broad tribes: The lawyers who handle the deals, and the lawyers who handle what happens when the deals fall apart. Unfortunately, these two tribes too seldom mix. They don’t go to the same ABA meetings, their spouses don’t dine together, their kids are on different soccer teams.
This article discusses the update on mediation in Italy. There have been many policy and legislative changes since mandatory mediation was declared unconstitutional.
Project Management and Dispute Avoidance
An interesting presentation on dispute prevention was featured at the recent UIA World Mediation Forum in Prague. The presenters demonstrated that project managers, not lawyers, may be the best equipped to save time and money by avoiding disputes.
Regulating, Certifying, Creating Barriers to Entry….
One must demonstrate training, skills or both in order to be listed on various court-annexed mediation panels. At the same time, however, many of those courts don’t mind in the least if parties go to a mediator of their choosing irrespective of whether that person is listed on the court-maintained panel.
Managing Disputes in a Flat World
Royal Dutch Shell Legal Director Peter Rees and CPR Institute President Kathy Bryan have co-authored a very good article called “How to Manage Disputes in a Flat World.” Much of its appeal lies in its emphasis on management of risk rather than resolution of disputes. And its premise is compelling.
Arbitration in India
In this research paper I will analyze and comment on India’s arbitration and jurisprudence from pre-colonization to post-colonization in 1947. In Part I, I will briefly discuss the goal and purpose of arbitration, for those who are unfamiliar with them, and I will delve into the history of India’s arbitration, including the major legislative acts and arbitration institutions.
Bach, Beijing, and Being at the Table
Negotiators at the table might have completely different interests and no shared ground as to the law or the facts; they can nevertheless contribute to a productive mediation because they are there. They share the dispute itself, and they share at least an interest in resolving the dispute in their clients’ favor. They share a recognition of the process, and a willingness to make themselves heard.
“Protect, Respect, Remedy”: What is the Lawyer’s Social Responsibility?
The current issue of IBA Global Insight (Feb/March 2013) features an excellent article by Rebecca Lowe that, on first glance, studies the defenses to liability under the Alien Tort Claims Act as presented by the U.S. Supreme Court’s consideration of Kiobel v. Royal Dutch Petroleum.
Confidentiality in Mediation: How Broad?
One doesn’t ordinarily look to California for exceptions to the broad scope of mediator confidentiality, but in Neighborhood Assistance Corporation v. First One Lending Corporation (C.D. Cal. Jan. 29, 2013) we have one.
Year-End Wrap Up: Are We There Yet?
Some of us have been at the task of providing alternatives to business litigation for fifteen years. Some have been at it much, much longer. Stepping back from the fray for a moment, one might well ask: Are we any closer to where we want to go? What is the current state of the profession of business mediation, arbitration and negotiation?
When Interests Change at the Negotiating Table
Neither negotiation pundits nor political commentators seem very quick to pick up on an obvious fact of life: That, as negotiations continue, the underlying objective of the parties may change, and their interest may morph.
New Survey on International Arbitration — The Users’ Perspective
GE Oil & Gas attorney Michael McIlwrath has brought our attention to the recently released 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process. This study, conducted by the School of International Arbitration at Queen Mary, University of London, and the firm of White & Case LLP, notes how international arbitration is actually practiced, and points to what practices might be preferred.
Defrauding Clients OK If Done During a Mediation
Every now and then this blog features judicial opinions that interpret mediation confidentiality in seemingly odd ways. The California Court of Appeals’ August 3, 2012, opinion in Hadley et al. v. The Cochran Firm deserves a place in the pantheon.
Dispelling Arbitration Myths
A panel at the ABA Annual Meeting in Chicago once again engaged in “Myth Busting,” using facts and logic to dispel many of the notions that, without factual basis, encumber user perceptions of arbitration. Among these are that arbitrators “split the baby” and that arbitration is as costly and lengthy as litigation, but without the right of appeal.
Sanctions for Baseless Motion to Vacate Arbitration Award
The District Court for the Southern District of New York has awarded attorney’s fees to a party who incurred those expenses responding to a motion to vacate an arbitration award, upon a finding that the motion was brought without any legal basis, and constituted “a largely dilatory effort.”
State Appellate Court Affirms Judicial Determination of Arbitrability
Amid the confusion of various holdings on arbitrability, and who decides arbitrability, and how parties decide who decides arbitrability, comes a clear opinion from the Superior Court of New Jersey Appellate Division in Merrill Lynch v. Cantone Research.
ADR in Africa
The final paper from a student in the International Commercial Dispute Resolution course at New York Law School discusses the present state of commercial mediation, conciliation and arbitration in selected jurisdictions in Africa.
Multiple Interests, Multiple Stakeholders, Lives on the Line
This blog has noted, over the years, the challenges of multiparty negotiations. It has also brought readers’ attention to the challenges of hostage negotiation. This next paper from a New York Law School student combines the two in a horrific melange of self-interest, terror and human lives.
The Very Cutting Edge of International Arbitration
I was privileged to be included in the recent European Users’ Council Symposium at Tylney Hall, near Basingstoke, England, and organized by the London Court of International Arbitration. Present were international practitioners and arbitrators; inside council of global corporations who regularly use international arbitration; professors of international dispute resolution; representatives of organizations that promulgate rules and administer international arbitrations; and attorneys from many countries who prepare and appear before international arbitrators.
ODR and Napoleon: World Conquest
No sooner had Colin Rule addressed my students at New York Law School but we met each other again in Washington, DC, where he was on a panel on online dispute resolution at the Annual Meeting of the ABA’s Section on Dispute Resolution. Colin’s seven years with EBay/Paypal, combined with his new start-up Modria, have turned that sparkle in his eye to a glint. He sees the future, does Colin, and it doesn’t include lawyers — or the law.
Violate Mediation Confidentiality? Case Dismissed!
J. Michael Hand didn’t like the Walnut Valley Sailing Club’s storage shed. A member of the club, though not disabled himself, Mr. Hand thought the structure didn’t comply with the accessibility requirements of the Americans with Disabilities Act. So he sued.
Multiculturism, and a Critique of Pure Tolerance
At the IBA in Dubai last week, a three-hour session was held on “The Rise of Multiculturalism and Resulting Challenges of Managing Diversity in the Workplace.” While the subjects discussed were fascinating, the subjects not discussed might have been even more so.
Do You Really Want to Settle?
People come to mediation to settle their disputes. Or, so they claim! But, do they really want to settle? In her monthly column, One Minute Negotiation Tips, published by the Los Angeles County Bar Association (Vol. IV, No. 9, October 2011), Ms. Linda Bulmash asks this fundamental question: Is Your Client Sure That He/She Wants To Settle?
International Bar Association Meets Next Week
The International Bar Association opens its Annual Meeting on Sunday October 30, 2011, in Dubai with an eagerly anticipated address by Nobel laureate Dr. Mohamed ElBaradei.
Attorney Disqualification: Mediation
A recent U.S. District Court opinion has tested the ethical rules barring mediators from representing a party in a subsequent matter that is “identical” or “substantially related” to the mediated matter. It found that, at least in the case before the court, that test had not been satisfied and the mediator/attorney was permitted to continue to represent the client.
Define “Mediation” in Seven Words, Anyone?
The irrepresible Michael Leathes is a collector of quotes. Little does he know that one of the early walks I had with him produced a quote of his own that I have always kept pinned on the corkboard of my mind: “It costs no more to think big than to think small.”
Settlement Enforced Thanks to Mediator Testimony
In New Jersey, the Superior Court Appellate Division recently approved for publication a decision in which a party to a mediation successfully sought to enforce a settlement agreement reached orally but not commited to writing during the mediation.
How Arbitrators Think?
Hey, I’m an arbitrator. And like Derek Jeter I always want to improve my game every time I go on the field.
Conflict Resolution and Change
There have been an uncharacteristic spate of impasses lately in my practice.
When Not to Negotiate
A guy comes up to you, draws a gun, holds it to your temple, and tells you to sign this or he’ll blow your head off. RESULT: Negotiate
ABA's Public Civility Initiative
Business people negotiating a private deal are trained to listen to discover their counter-party’s interests, and to devise beneficial options that accommodate them. Yet listening is something one seldom observes in public legislative debate. Adjusting on the basis of what one hears, practically never.
Seeking a Day in Court: When Litigants Reject Tenders of Damages
The Supreme Court has ruled (again) that state laws purporting to condition the enforceability of arbitration agreements on grounds not ennumerated in Section 2 of the Federal Arbitration Act are themselves unenforceable on Supremacy grounds
Sulha: Traditional Arab Dispute Resolution
Continuing with the series on models of conflict resolution that are not based on the parties’ interests, below is reproduced another chapter in a proposed book on alternatives to Western mediation methods. This one — the Arab practice of sulha – is centuries old, pre-dating even the Prophet, and its motivating considerations are an amalgam of the community’s desire for stability, aggrieved parties’ need for restored honor, and accused parties’ need for reconciliation and regaining face.
Vindicating individuals’ particular interests is nowhere to be found.
Alternatives to Interest-Based Problem-Solving: Ho’oponopono
Traditional Hawaiian practices include a structured ritual whereby a family gathers to exchange concerns, reveal wrongs and resentments, and set the family unit right. The practice, ho’oponopono, is often inadequately understood by non-Hawaiians and in certain instances misappropriated (whether intentionally or through ignorance). This chapter attempts to describe the practice, with acknowledgement that non-Hawaiians necessarily labor under spiritual and cultural limitations that prevent full understanding of, and engagement in, the traditions of others.
New Protocol on Damages in Arbitration
For the past two years, Lawrence Newman has chaired a Working Group at the CPR Institute studying determination of damages in arbitration, and he advises that the group’s end product, a Protocol on Determination of Damages in Arbitration, has now been released. Its full text appears below.
Damages: When More Than What You Lost Is Not Enough
Damages: When More Than What You Lost is Not Enough
Posted by F. Peter Phillips on February 14, 2011 under Courts
The indispensible blog Above the Law has recently posted a depressing bit of news. Certain ticket holders to the 2011 Super Bowl could not be accomodated because the temporarily-installed seats that they purchased proved to be unsafe for use. The NFL expressed its regret by offering the disappointed purchasers their choice of either (a) $2,400 in cash — i.e., three times the value of the tickets they purchased — or (b) a seat to any future Super Bowl of their choosing, plus round-trip airfare, plus hotel accomodations. In any other context, this would be the opening offer of a negotiation and it would be a pretty good one.
Court-Mandated Mediation: Lessons Learned In New Jersey?
For many years, the New Jersey Court Rules have empowered certain judges to issue Orders of Referral to Mediation. Administared by the state’s Administrative Office of the Courts, the New Jersey mediation program was way ahead of its time and has prompted tens of thousands of civil mediations. The program is about to be modified, and indeed a few months ago was threatened with termination. It is instructive to review how it has worked, where the problems have arisen, and what changes might make it better.
Project: Spirituality And Conflict Resolution
Over the past years, many of us have been impressed by the limitations of both institutional dispute resolution systems (i.e., courts) and their alternatives (i.e., arbitration and mediation). At the same time, I’ve been increasingly drawn to examples found in certain societies whose shared spiritual beliefs have produced systems of dispute resolution that are consciously in tune with those beliefs.
Need A Nigerian Mediator? There’s An App For That!
From those wonderful people who brought you the International Mediation Institute comes word of a holiday present worth opening: the IMI app! The world of mediation, right there at your fingertips!
No Writing, No Settlement
Recently this blog featured a post about a mediated settlement agreement that was enforced because it was memorialized in a written document containing the agreement’s essential terms. Here we have the obverse: A case that was decided in the same month – July 2010 – in which a mediated settlement agreement was held unenforceable because it did not subsist in a writing.
Texas Court Closes The Back Door To Mediation Testimony
We are all too familiar with settling parties who seek to relieve themselves of their settlement agreements. The Fifth District Court of Appeals in Dallas recently reversed a trial court that had permitted such a party to obtain testimony of opposing counsel’s communications during the mediation that led to the settlement.
Leadership, Conflict And Problem-Solving
The New York Times’ November 18, 2010 edition featured a letter by Carl Schiffman of Queens, NY, that brought out concerns that many of us in the problem-solving profession have entertained, concerning the limitations of the mediator’s role.
Exception Found For Mediation Confidentiality
It is hard (we hope) to find exceptions to the general rule that statements made in mediation are inadmissible. However, Judge J. William Ditter of the U.S. District Court for the Eastern District of Pennsylvania has held that some party statements can be admissible — such as statements to the effect of “I intend to abuse this mediation as a way to drive up your litigation costs.”
Pushing The Boundaries: Negotiating With Kidnappers And Pirates
A sobering — even frightening — panel at the IBA’s Vancouver conference addressed negotiation in volatile, politically charged and dangerous circumstances — pushing the boundaries of mediation past the purely commercial, into a world where lives may depend on the skill and success of the negotiator or mediator. Maritime pirates off Somalia, for example, do not rationally seek and underlying political or even monetary interests, and their behavior is not deliberative.
The Art And Science Of Persuasion
The annual Conference of the International Bar Association in Vancouver presented several panels of unusual distinction and interest. This first report covers a group of speakers posing the questions: “What does it take to persuade? How does a lawyer cause an arbitrator, judge, businessperson or other lawyer, to willingly reach the desired conclusion?”
Excuse-Not-To-Mediate No. 35(b): I Got A Slam Dunk
My mentor at CPR Institute, former Olin General Counsel Peter Kaskell, once wrote an amusing article called something like “The 10 Worst Reasons Not to Mediate.” I myself had recent occasion to deal with one of those reasons. A defendant was reluctant to comply with the a mediation order in which I was appointed, on the ground that there was nothing to discuss — his client’s defense was absolute and he saw no risk whatsoever in simply participating in discovery, going for summary judgment, and getting out of it. In any event, he had nothing to offer by way of settlement, so negotiations were a waste of attorney and client time for both sides.
Four Stages Of Ending A Conflict
Don’t make me swear to it, but I believe it was Karl Slaikeu who first presented to me the four stages — or, better, “declensions” — of ending a conflict. If it was somebody else, my apology. Which, by the way, is the first stage.