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November 2017
11/21

Arb-Med-Arb: what is it and how can it help the parties to solve their disputes efficiently?

AMA is a hybrid mechanism and combines arbitration and mediation. It contains in essence the following steps: read

 
September 2017
9/28

South Africa: Why mediation and arbitration offer a better route to solving medical disputes

The benefit of a medical mediation is that the emotional toll on both parties in the dispute is minimized. read

 
August 2017
8/11

The perfect dispute resolution clause

Practitioners from every stage of the disputes process: in-house, private practice, the Bar and institutions, gave their insights on what makes for an effective dispute resolution clause. read

 
July 2017
7/06

Supreme Court Rules In Favor Of Nursing Home Arbitration Agreements

In Kindred Nursing Center Ltd. Partnership v. Clark, the United States Supreme Court recently continued its protection of arbitration agreements by holding that the Federal Arbitration Act (FAA) preempted a Kentucky "clear statement" rule that disfavored arbitration agreements. read

 
May 2017
5/09

Mediators Share Advice on Managing Outside Counsel

Most cases resolve at some point, and early mediation lowers the costs incurred in litigation. In going even further though, I would advise in-house counsel to challenge some of the common practices litigation counsel often employ. read

 
March 2017
3/21

Senators Must Ask Gorsuch If He Will Force Americans into Arbitration

As part of his confirmation as a Supreme Court justice beginning on March 20, the Senate must ask Judge Gorsuch about his views on arbitration to determine whether he will put big business ahead of Americans’ constitutional right to a trial by jury. read

 
3/16

SCOTUSblog: Judge Gorsuch’s arbitration jurisprudence

Arbitration, which involves agreements between parties to settle disputes in a private forum rather than in court, might seem like a fairly dry area of the law. But recent Supreme Court rulings interpreting the scope of the Federal Arbitration Act have had significant implications in consumer protection, labor, and class action contexts. read

 
3/14

Unfortunate confusion of mediator and arbitrator roles

The headline reads: "Mediator: Hamilton man doctored videos trying to swindle son's widow, children." The best read is the first comment that very capably distinguishes between the roles of a mediator and arbitrator. read

 
December 2016
12/06

Effective Use Of Mediation-Arbitration

Over the past 15 years, mediationarbitration (or “med-arb”) has grown into a popular method of resolving family law disputes. As its name suggests, med-arb combines the most effective features of both mediation and arbitration. Why has med-arb become so popular? When does it work and when it does not? What are the ethical and practical issues that must be considered? read

 
November 2016
11/22

Obama admin. seeks curbs on mandatory arbitration for insurance

The Obama administration is pressing U.S. states to curb insurers' use of fine print in contracts that bars unsatisfied customers from suing, taking the latest step against "mandatory arbitration clauses" in an insurance report released by the Treasury Department on Monday. read

 
October 2016
10/14

Problematic nursing home arbitration clauses

This week, I want to discuss important federal regulatory changes that will affect millions of elderly dependent adults who are residing in nursing homes. read

 

Airbnb Defends Arbitration in Push to Dismiss Discrimination Suit

Lawyers for Airbnb Inc. defended the home-sharing platform’s terms of service Wednesday in Washington federal district court, arguing that a user who brought a discrimination case against the company should be forced into arbitration to resolve the dispute. read

 
10/05

U.S. to Bar Arbitration Clauses in Nursing Home Contracts

The federal agency that controls more than $1 trillion in Medicare and Medicaid funding has moved to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration. read

 
July 2016
7/12

There's a difference between arbitration, mediation

To start, I couldn’t agree more that mediation can be complicated and the quality, knowledge and professionalism of the mediator are usually the most important components to a successful mediation. read

 
June 2016
6/29

Arbitration and Mediation: Trending Worldwide for All the Right Reasons

The rising trend of alternative dispute resolution was a focus of the New Jersey State Bar Association Annual Meeting and Convention in Atlantic City, NJ. read

 
6/08

How Gig Economy Is Using Private Arbitration to Win on Labor Classification

Sharing economy workers’ best shot at suing to rewrite the rules of their employment may soon pass them by. As judges last Thursday considered settlements that will leave Uber Technologies Inc. and Lyft Inc. drivers as independent contractors, two of the biggest names in the on-demand economy are likely to avoid policy changes that would force them to rethink their business models. read

 
May 2016
5/17

Start-Ups Embrace Arbitration to Settle Workplace Disputes

For start-ups — many of which began in Silicon Valley — the clauses can seem to conflict with professed goals of upending business as usual and being open with employees. read

 
5/10

Proposed CFPB rule: A partial end to forced arbitration

Soon, says the CFPB, consumers will not find mandatory arbitration clauses in their contracts with financial companies. Thus, disputes will be handled fairly. read

 

Blumenthal lauds proposed curb of forced arbitration clauses

A proposal by a federal consumer agency to curb the use of forced arbitration clauses is being praised by U.S. Sen. Richard Blumenthal (D-Conn.). read

 
5/03

The New Arbitration Rules Are (Almost) Here

Recent reports indicate that the CFPB will announce a new rule governing arbitration clauses in consumer lending contracts at a field hearing on the subject scheduled in Albuquerque, New Mexico, later this week. read

 
April 2016
4/28

The Upside of Employment Arbitration

A recently completed five-day arbitration with twenty-one witnesses, reminded me of the upsides of employment arbitrations (especially when I compare my situation to that of my colleagues who are preparing for jury trials in similar cases). read

 

Deflategate: Limited Ability to Appeal Arbitration Awards

Nearly all collective bargaining agreements have an arbitration clause for deciding any disputes under the agreement. Beyond the labor arena, employers have increasingly mandated arbitration as the designated forum for resolving employment disputes. With the recent Deflategate decision, we are reminded of the limitations of appealing an arbitrator’s decision. read

 
March 2016
3/14

Forced arbitration clauses might be on the way out

If you have a credit card, you have been forced to kiss away your constitutional right to sue the card issuer. But it’s looking increasingly likely that this is about to change. read

 
February 2016
2/22

Forced arbitration clauses are a form of wealth transfer to the rich

A federal judge called America's move to forced arbitration and bans on class-action suits -- bans favored and enabled by Scalia -- "among the most profound shifts in our legal history." read

 

Mediation, Arbitration or Trial? Information to Make Your Decision With

If you’re going through a divorce or have a business issue, no matter what the legal dispute, you can mediate, arbitrate or litigate to come to a resolution -- it’s your choice. read

 
2/18

Consumer Protection Chief Decries Mandatory Arbitration Clauses

Mandatory arbitration clauses often are designed to prevent Americans from exercising their rights, warns the director of the Consumer Financial Protection Bureau. read

 
January 2016
1/27

FINRA Arbitrations: Behind Claimant “Win” Statistics

FINRA reported that, for 2015, Claimants won about half of private securities arbitrations: 47% for all-public panel decisions; 45% for majority-public panels. A colleague and securities mediator recently studied FINRA’s 2015 private securities arbitrations to see just what the results are when Claimants “win.”   read

 
1/05

How Arbitration Has Advantage Over a Trial

By exchanging the uncertainty and delay of class-action participation for a fair and timely arbitration procedure in which he has nothing to lose, the consumer’s financial disadvantage at the time of contract would be eliminated. read

 
December 2015
12/29

Why The CFPB Thinks Arbitration Is Bad

Opponents of the practice note that while arbitration can be used judiciously, it has been adopted as a favored tactic of service providers (cable companies), financial services firms (credit card companies) and debt collectors (particularly expired debt collectors) to skirt consumer protection laws and insulate themselves from class action lawsuits. read

 
12/17

FINRA Arbitration Process Due for Overhaul?

FINRA's troubled dispute resolution forum could come in for an overhaul. That's a possibility now that the regulator's arbitration task force has issued a new report containing 51 recommendations to reform arbitration. read

 
November 2015
11/30

Remembering Lou Del Duca

Over the weekend my good friend Lou Del Duca passed away. This news came as a shock, because I skype chatted with Lou about the latest developments in the UNCITRAL ODR Working Group just a week ago. read

 
11/17

Efforts to Rein In Arbitration Come Under Well-Financed Attack

The ad attacks the Consumer Financial Protection Bureau, a federal agency created with Ms. Warren’s strong backing after the 2008 mortgage crisis. What the ad did not say: Its sponsor wants to rein in the agency in part because of its efforts to restrict arbitration — the widespread practice in corporate America of requiring customers and employees to resolve disputes not in the courts, but in private proceedings with neither judge nor jury. read

 
11/10

You're Getting Ripped Off By Forced Mandatory Arbitration -- Here's How to Stop It

From Senator Al Franken of Minnesota and Congressman Hank Johnson of Georgia. Forced arbitration rigs the game in favor of big corporations and against consumers and employees. And recently, a New York Times investigation has exposed just how prevalent this damaging practice is; indeed, the story almost certainly affects you, personally. read

 

No, arbitration isn't evil, but safeguards are needed

There seems to be a lot of confusion about arbitration. Judging by recent media accounts, it's a crooked business designed by thieves for the purpose of cheating the virtuous. But arbitration is not the problem. The situation is more complicated than that. read

 
October 2015
10/27

ADR flourishes in Francophone Africa

This article offers an overview of the disputes markets in Cameroon and Ivory Coast, and identifies growing interest in ADR, in what are thriving markets for dispute resolution. read

 
10/20

Mediation, arbitration are not the same thing

I was disappointed to read the inaccuracy contained in the Associated Press article “ Financial regulators may limit forced arbitration,” in the Oct. 11 Dispatch. The article confuses mediation with arbitration and perpetuates the notion that mediation and arbitration are one in the same. read

 
September 2015
9/22

Uber Loses Bid to Force Arbitration on California Driver

A former Uber Technologies Inc. driver defeated the company’s bid to force her into arbitration, a second victory after California’s labor commissioner said she should have been considered an employee. read

 
9/21

California Supreme Court says 'yes' to arbitration clause

A recent California Supreme Court case upheld an arbitration provision in a sales agreement, even though it contained a class action waiver and multiple arguable terms. However, the court also reaffirmed that "unconscionability," meaning a contract provision is substantially unfair, is still valid grounds to challenge an arbitration clause. read

 
9/15

Frank Ochoa: Case for Alternative Dispute Resolution Often More Beneficial Than Lawsuit Route

Mediation is a process with deep historical roots, but with a fairly recent formal acceptance into our society’s dispute resolution processes. It is the least adversarial form of ADR. A neutral is engaged to work with the parties, to identify the issues underlying the dispute, to manage the dialogue between the disputants, and to help them arrive at a mutually agreeable resolution to the dispute. read

 
9/08

California Moves Toward Ban On Mandatory Arbitration of Labor Claims

On August 31, the California Legislature passed AB 465, aiming to “ensure that a contract to waive any of the rights, penalties, remedies, forums, or procedures under the Labor Code”—such as an arbitration agreement—is “a matter of voluntary consent.” This bill, now before Governor Brown for his approval, raises two big questions: (1) will the Governor sign the bill, and, if he does, (2) to what extent would the new law be enforceable? read

 

IRS Eliminates Appeals Arbitration Program

The Internal Revenue Service has gotten rid of a rarely used program that was supposed to allow taxpayers to expedite the appeals process. The IRS issued Revenue Procedure 2015-44 on Tuesday, announcing the elimination of the Appeals arbitration program. The new revenue procedure obsoletes an earlier revenue procedure that formally established the Appeals arbitration program. read

 
August 2015
8/24

Arbitration Agreement Does Not Relieve Company of Need to Respond to Lawsuit

An arbitration agreement can be a valuable tool for businesses. It provides certainty regarding the method of dispute resolution. Compared to litigation, arbitration may be less expensive and generally leads to a quicker resolution. But those benefits are of no use if the dispute ends up in litigation instead of arbitration, despite the arbitration agreement. read

 
8/18

Drafting Consumer Arbitration Clauses for Electronic Agreements

Notwithstanding the Supreme Court's broad holdings on the scope of the FAA's protection of arbitration clauses, careful drafting and implementation remain important to maximize the enforceability of arbitration clauses, particularly in e-commerce consumer agreements. read

 
8/07

Justices Uphold Consumer Arbitration Clause

Ruling in a closely watched case, the California Supreme Court made clear Monday that consumers trying to escape arbitration agreements must do more than show the contract favored the other side. A six-justice majority reversed the Second District Court of Appeal, which ruled in 2011 that an arbitration agreement in a sales contract for a used Mercedes-Benz could not be enforced because it favored the car dealer. However, the court stopped short of adopting a new, possibly more rigorous, standard for proving unconscionability. Writing for the majority in Sanchez v. Valencia Holding, Justice Goodwin Liu said not all one-sided contract provisions can be struck down.  read

 
8/05

Construction Disputes Fall in Value, Grow in Length

A global design, engineering, and consultancy firm has released a report stating disputes relating to major construction projects in North America decreased in value while the length of time to resolve conflict increased significantly last year. read

 

Controversy dogs family med-arb

While mediation-arbitration in the family law context is a fairly recent phenomenon, there’s been a growing controversy around its use. The thrust of the concern is that mediators, who are privy to a lot of sensitive information during the settlement phase of proceedings, should not later become arbitrators of the same case. read

 
8/03

Singapore pushes mediation service for business dispute resolution

The Singapore International Mediation Centre is pushing for businesses to turn to mediation instead of more costly arbitration. read

 
July 2015
7/23

CMS considered prohibiting binding arbitration entirely, seeks comments

Facilities that present binding arbitration agreements to residents must ensure the residents fully understand the agreement, according to a proposed rule from the Centers for Medicare & Medicaid Services. The rule, which was included in last week's proposed nursing home regulation overhaul, would require arbitration sessions to be conducted by a neutral arbitrator, and that residents fully understand the agreement and agree to it voluntarily. Admission to a nursing home or long-term care facility could not be contingent on the resident or their representatives signing an arbitration agreement, the proposal states. read

 
June 2015
6/23

What is Divorce Arbitration?

Divorce arbitration occupies a unique position in the growing field of alternate dispute resolution. Let’s start by stating what it is not. It is not mediation where divorcing parties meet with a trained person who will hopefully assist them in achieving a settlement through a process of discussion, negotiation and compromise. Quite simply, some cases call for more than mediation can provide, especially if the parties are less than trustful of each other and a more firm, formal approach is appropriate. read

 
6/15

Uber loses bid for arbitration in driver lawsuit

A U.S. District Judge in San Francisco has rejected on-demand transportation company Uber’s bid to enforce arbitration agreements on its drivers, clearing the way for a driver lawsuit to go ahead. In a ruling Tuesday, Judge Edward Chen said the arbitration provisions contained in both the 2013 and 2014 versions of Uber’s contracts with its drivers “are both procedurally and substantively unconscionable” and therefore “unenforceable.” The ruling was based on unclear wording in those contracts, as well as the “largely illusory” nature of drivers being able to opt-out of the 2013 arbitration agreement. read

 
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