This article describes the virtues and pitfalls of a neutral party serving as both the mediator and as the arbitrator in the same matter, where the disputing parties have adopted a two-step Med-Arb or an Arb-Med process.
In this paper I will share how I found out that the listening approach I have used for almost two decades was completely unique--based on a happy misunderstanding.
When we feel emotional about a conflict – hurt, anger, betrayal, disappointment, and so on – it is a clear sign that something important to us is being challenged or threatened or undermined.
Mediation, Love says, “is the last bastion,” with mediators trained to promote dialogue.
It’s so normal for us to ask questions and want information from those who have already been through this overwhelming time in our lives.
Role plays are one of the most common tools used by mediation trainers. In his new book, Marc Bhalla takes a deeper look at how to use role plays effectively and shares some of his tested and effective scenarios.
Deciding to divorce is likely going to be the biggest decision of your life, bigger than even deciding to get married in the first place, and how you choose to proceed will make all the difference.
(1/14/21)Veronique Fraser, Barney Jordaan, Michael Leathes
I am sitting in a room, negotiating a sale, and I’m thinking: Which is likely to be more favorable to me: put a figure on the table, or insist the Other does so first?
This article discusses how recent jurisprudence and institutional promulgations may impact Online Arbitration ('OArb'), and offers considerations for courts, policymakers, and practitioners shepherding OArb development.
(1/13/21)Nicholas Peacock, Aaron White, Peter Chen
This article aims to consider any new trends in the Technology, media, and telecommunications (“TMT”) area, and to offer some thoughts on the potential implications for investors and states.
(1/12/21)Michael Polkinghorne, Andrew de Lotbinière McDougall, Morgane Guyonnet
As it continues to enjoy record caseloads during the COVID-19 pandemic, the International Court of Arbitration of the International Chamber of Commerce sets out its vision for the future of dispute resolution with newly updated arbitration rules.
(1/11/21)Amy Schmitz, Theo Cheng, Daniel Urbas, George Friedman, DeAndra Roaché
In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about planning and executing a preliminary arbitration hearing, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
FINRA’s Office of Dispute Resolution Services (“DRS”) has again administratively postponed all in-person arbitration and mediation hearings.
The difference in opinions, beliefs, views, values, and desires, plus the need to establish supremacy of one over the others often causes conflicts to arise in different situations.
Never have we been more needed, and never have we needed to be more flexible.
(1/08/21)Anwar Kashif Mumtaz
When you hear about the word landscape of dispute resolution, the first thing that comes to the mind of the people is litigation before a court of competent jurisdiction. However, the parties need to be made aware that the landscape of dispute resolution is wider. It includes along with litigation, arbitration and mediation.
“Never let a good crisis go to waste” – Alistair McIntosh
During the pandemic, business leaders can learn from educators about overcoming the communication challenges that video conferencing platforms present.
In recent years, governments from the state of Delaware to the Emirate of Dubai have created institutions specially designed to adjudicate transnational commercial disputes, which are hybrids between courts and arbitration, or “arbitral courts.”
Because democracy is open, it is vulnerable to demagogues and autocrats; yet because it is open, it is also resilient, able to learn and improve, and responsive to popular wisdom.
(1/08/21)Ronald S. Kraybill
If you’re good at selective conflict avoidance, you will have a greater sense of order and control in your life.
Many times in tense situations there is a strong desire to minimize the conflict.
A special podcast from JAMS featuring neutrals Adrienne Publicover and David Ross on their experiences and lessons learned since shifting to virtual mediations.
In the Corporation of the Township of South Stormont v. The Kraft Heinz Company following an unsuccessful mediation phase regarding disputes under a 2011 agreement, the parties engaged in arbitration during which they negotiated a 2017 settlement and agreed to arbitrate disputes before the mediator.
(1/07/21)Nathan Searle, Katie Duval
In Halliburton Company v Chubb Bermuda Insurance Ltd, the UK Supreme Court dismissed Halliburton’s appeal regarding its application to remove an arbitrator for apparent bias on the facts and emphasised the importance of arbitrator impartiality in London-seated arbitrations.
An arbitrator awarded nearly $20 million to two former employees of a St. Louis-area janitorial company in what he said were some of the most egregious employment-discrimination cases he’d ever seen.
The Court of Appeal in Sky Clean Energy Ltd. v. Economical Mutual Insurance Company noted that the litigants had agreed that findings of fact made in an arbitration award would bind the trial judge and dismissed the appellant’s claims alleging interpretative error in an insurance contract.
In an unpublished per curiam Opinion, the Eleventh Circuit, has affirmed unanimously a Southern District of Florida decision confirming a FINRA Award of over $3 million in sanctions against Morgan Stanley.
This article discusses the differences between the Brazilian and English disclosure regimes, such as there is no codified duty to disclose in England and secondly, the exclusion of the word 'independence' from the English Arbitration Act, 1996 which appears in Article 14(1) of the Brazilian Arbitration Act 1996.
2020 was a tough year for many of us, from the pandemic to shutdowns to political chaos. Let's use the fresh start of the new year to set our sights on a more optimistic horizon.
(1/05/21)Victoria Sahani, Amy Schmitz
In this episode of the Arbitration Conversation Amy interviews Prof. Victoria Shannon Sahani, Associate Dean of Faculty Development and Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University.
(1/05/21)Keshia Osbourne, Bruce Ally
After spending four months and 140 hours of intense theoretical study, I walked away from one of Toronto’s leading Universities with a certificate in Dispute Resolution. This was what happened when I stepped in to the real world.
FUBAR Zoom mediation: A Field Guide for Mediators. FUBAR = Fouled Up Beyond All Recognition
In a recent, still unpublished award, India lost an arbitration dispute initiated by Vodafone because India had imposed a hefty tax bill of several billion dollars retroactively.
(1/04/21)Amy Schmitz, Theo Cheng, Daniel Urbas, George Friedman, DeAndra Roaché
In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about filing arbitration claims, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
(1/04/21)F. Peter Phillips
As a consequence of the absence of uniform adoption of the Uniform Mediation Act, the confidentiality of mediation communications in various jurisdictions often cannot be assured.
This article is prompted by my conversation with a really good, experienced colleague who is revising his mediation course.
Empty threats in dispute resolution change nothing.
This post discusses interesting ramifications of personalities, such as two individuals who are each “disagreeable” tend to get along the best.
This article examines what we should do as mediators during the pandemic.
Lawyers love conflict. They thrive on it. If anyone can coexist with conflict, it’s a lawyer.
(12/30/20)Robert Milligan, Sierra Chinn-Liu
In an expansive recent ruling, the California Court of Appeal in Brown v. TGS Management Co., LLC reversed a judgment confirming an arbitration award, examining the arbitrator’s findings, and ultimately invalidating confidentiality provisions in an employment agreement under Business and Professions Code section 16600.
(12/30/20)George Friedman, Amy Schmitz
In this episode of the Arbitration Conversation Amy interviews George H. Friedman, publisher and Editor-in-Chief of the Securities Arbitration Alert and principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA dispute resolution forum in particular.
(12/29/20)Mark Mangan, Daniel Gaw
As an extraordinary year draws to a close and a brighter one (hopefully) beckons, we consider whether the compromises and sacrifices everyone has had to make to mitigate the effects of COVID-19 will inspire a greater willingness to rely on non-contentious means to resolve international commercial disputes.
(12/29/20)Nicholas Peacock, Nihal Joseph
This article considers the recent Arbitration related developments in India such as the court decisions covering the limitation period for enforcement of foreign awards, the bilateral investment treaty updates, amendments to the Indian Arbitration and Conciliation Act 1996, etc.
In North Pacific Properties Ltd v. Bethel United Churches, Justice Anna Loparco determined that the parties to an existing contract had not entered into a binding agreement to arbitrate disagreements and therefore had lost the opportunity to engage in less costly, less protracted dispute resolution.
FINRA’s Board of Governors in December 2019 authorized staff to submit a rule filing with the SEC increasing certain Chairperson honoraria and the SEC has now approved the proposal.
When two people are tasked to complete a project together, they may not always agree on how to get it done.
(12/28/20)Ronald S. Kraybill
I teach Conflict Resolution. Why do I love Guns?
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As COVID concerns spread, conditioning from the media and celebrities talking about how everyone needed to comply with random, and often contradictory orders began to make the rounds of TV and social media.