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Zela Claiborne

Five Steps to Facilitate a Fair and Efficient Arbitration

(3/10/17)Zela Claiborne

Following are some tips to help even the most experienced counsel take advantage of one of arbitration’s best benefit: flexibility.

Beth Graham

Exploring the Interplay between Mediation, Evaluation, and Arbitration in Commercial Cases

(3/03/17)Beth Graham

As mediation and other settlement-oriented intervention strategies have come into broader use in commercial dispute resolution, different views have emerged regarding the nature and purpose of some of these processes as a result of both individual choice and cultural or systemic factors.

Phyllis Pollack

Alternative Facts

(2/24/17)Phyllis Pollack

After this political year, we ask: why will the publis only accept facts which support their current beliefs?

Beth Graham

SCOTX Refuses to Reconsider Patent Company’s Request to Vacate Arbitrator’s $3 Million Legal Fees Award

(1/27/17)Beth Graham

The Supreme Court of Texas has once again declined to consider a company’s request to vacate an arbitrator’s award in a legal fees dispute.

Jane Greenspan

Title IX Investigations in Need of Reform

(1/27/17)Jane Greenspan

Although the criminal justice system is far from perfect and is sometimes forbidding and difficult to navigate for survivors of sexual violence, its reliability and independence does offer some advantages that could and perhaps should be assumed in on-campus proceedings.

Secondments in International Arbitration

(1/20/17)John Lande, Daniel Dilor, Raul Pereira de Souza Fleury

Despite the heavy workload, practicing international arbitration can be fun; you are always challenged by disputes arising from a diversity of issues that test your ability to design the best strategy to achieve the best possible outcome for your client, combined with the complexity that a single case can reach and the many instances in which a sovereign State is involved, as in investment and State-to-State arbitration.

F. Peter Phillips

Supremes Grant Cert on NLRB Challenge to Class Waiver

(1/20/17)F. Peter Phillips

As has been widely reported, the Supreme Court has granted certiorari to review three conflicting decisions among the circuits on the enforceability of an employer’s unilaterally promulgated waiver of employees’ right to participate in collective redress.

Beth Graham

Empirical Findings on International Arbitration: An Overview

(1/06/17)Beth Graham

In his book chapter entitled “Empirical Findings on International Arbitration: An Overview,” Professor Drahozal provides a survey of qualitative empirical research and literature related to international arbitration.

F. Peter Phillips

NY Times: “Arbitration” = Secretive and Unfair

(12/18/16)F. Peter Phillips

On the front page of a New York Times there was an article reporting on a legal argument that is purportedly being advanced by Wells Fargo in response to claims brought on behalf of thousands of customers in whose name, and without whose knowledge, over 2,000,000 “sham” accounts were established.

Beth Graham

Texas Insurer Abandons Mandatory Mediation-Arbitration Endorsement Proposal

(11/11/16)Beth Graham

The Texas Farm Bureau has reportedly abandoned a proposal that would have allowed insureds to relinquish their right to sue the company in the event of a claim dispute in exchange for a lower homeowners’ policy premium.

Art Hinshaw

Schmitz on Student Loans, Arbitrations, and Class Waivers

(11/11/16)Art Hinshaw

The new Department of Education rules include significant provisions restricting school arbitration agreements.

Michael A. Zeytoonian

Beyond Arbitration and Mediation: Designing the Dispute Resolution Process to Fit the Situation

(11/04/16)Michael A. Zeytoonian

We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.

Beth Graham

Federally Funded Nursing Homes No Longer Allowed to Require Residents to Sign Binding Arbitration Agreements

(10/07/16)Beth Graham

Yesterday, the Department of Health and Human Services’ Centers for Medicare and Medicaid Services published a regulation that bans federally funded long-term care facilities such as nursing homes from using pre-dispute binding arbitration agreements.

F. Peter Phillips

Waiver of Class Action Without Arbitration Provision

(10/03/16)F. Peter Phillips

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.

Jan Frankel Schau

Money and Happiness: How Mediation can change your client’s outlook

(9/23/16)Jan Frankel Schau

It seems to me that if the mediator can symbolically suggest that within 30 days, the individual would have $XXXXX in their bank account to do with whatever they wish, including merely keeping it in there as a “safety” precaution if times get rough, we might go a long way towards boosting their happiness quotient.

F. Peter Phillips

Boiling Down Consumer Arbitration

(9/09/16)F. Peter Phillips

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.

Nadja Alexander

The Regulatory Robustness Rating in Practice: Conclusion

(9/02/16)Nadja Alexander

Yes, here it is. The final part of the Regulatory Robustness Rating (RRR) trilogy.

Beth Graham

The Arbitrator Survey: Practices, Preferences and Changes on the Horizon

(8/26/16)Beth Graham

Ms. Sussman discusses her recently conducted survey regarding the preferences and decision-making of 401 domestic and international arbitrators.

F. Peter Phillips

New Book on Business ADR

(8/19/16)F. Peter Phillips

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.”

Constantin-Adi Gavrila

What’s In It For Us?

(8/19/16)Constantin-Adi Gavrila

The vast majority of people still have confusions, if not difficulties, in having a clear representation of WHO a mediator is, WHAT is it that a mediator aims to achieve, for WHOM, WHAT he or she does, and maybe more importantly, IF, WHEN and WHY would someone benefit from using mediation and mediators.

Beth Graham

Are Rules Allowing Arbitral Sanctions a Mirage?

(7/22/16)Beth Graham

In his publication, “Are Rules Allowing Arbitral Sanctions a Mirage?,” Mr. Morrow discusses whether an arbitrator may use permissive procedures to impose sanctions beyond those currently available by judicial decree.

Jan Frankel Schau

A Funny Thing Happens when People Talk to One Another in Mediation

(7/15/16)Jan Frankel Schau

This was an interesting week. I mediated three contentious, litigated matters. I did something a bit out of the ordinary for that phase of the mediation . . .

Beth Graham

Dallas COA Compels Arbitration in Injured Nurse’s Lawsuit Against Former Employer

(7/15/16)Beth Graham

Texas’ Fifth District Court of Appeals in Dallas has ordered an injured nurse’s lawsuit filed against his former employer to arbitration.

Beth Graham

Fifth Circuit Affirms $1.45 Million Arbitration Award in Legal Fees Dispute

(7/01/16)Beth Graham

Last month, the United States Court of Appeals for the Fifth Circuit upheld an arbitrator’s decision awarding a Texas-based law firm $1.45 in unpaid legal and expert witness fees.

Maria Simpson

4 Reasons to Call a Neutral Third Party

(6/06/16)Maria Simpson

Even though it is vital to know conflict resolution skills yourself, it’s also vital to know when to call a third party for help.

John Lande

Compared to What?

(5/27/16)John Lande

Although public perceptions are important indicators about the functioning of the court system, they are subject to biases and should be supplemented with other indicators.

Beth Graham

Curbing the Runaway Arbitrator in Commercial Arbitration

(5/14/16)Beth Graham

Arbitration is in crisis. Under fire as an oppressive, claim-suppressing method of dispute resolution, imposed by businesses upon unsuspecting employees and consumers, arbitration is also becoming increasingly unpopular with its original designers – businesses in commercial disputes with other businesses

Beth Graham

The Arbitration Bootstrap

(5/06/16)Beth Graham

Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts.

Beth Graham

9th Circuit Botches Another Arbitration Case

(3/29/16)Beth Graham

One has to wonder whether the 9th Circuit is paying attention to the principles embodied in the Federal Arbitration Act (FAA) as interpreted by the Supreme Court.

Bruno Bainsfair

“Any Party May Submit the Dispute to Binding Arbitration”: the Privy Council Examines the Option to Arbitrate

(3/11/16)Bruno Bainsfair

The Privy Council, the final Court of Appeal for a considerable number of current and former Commonwealth countries and British Overseas Territories, has recently given a judgment of wide interest to arbitration practitioners and those looking to draft arbitration clauses in their agreements.

Richard Birke

Fees & FINRA

(2/26/16)Richard Birke

Following are two interesting and recent federal court rulings related to arbitration.

Beth Graham

Texas Supreme Court Will Not Review Case Where Post-Arbitration Discovery Ordered Due to Neutral’s Alleged Evident Partiality

(1/29/16)Beth Graham

The Supreme Court of Texas has denied a party’s request to review the Dallas Appeals Court’s decision allowing post-arbitration discovery in a case that was filed by an injured worker.

Jill Gross

SCOTUS Denies Cert in Nursing Home Arbitration Case

(1/15/16)Jill Gross

On Monday, the Supreme Court declined to review a decision of the Supreme Court of Texas that enforced a pre-dispute arbitration clause in an agreement a patient signed with a nursing home pre-admission. After the patient died, her family sued the nursing home in state court alleging negligent care and wrongful death.

Enforcing Arbitration Clauses in Derivative Proceedings: Russia’s Perspective

(1/08/16)Mikhail Samoylov

Russian courts take a view that a shareholder is not bound by an arbitration clause included in a contract.

Robert Arrington

The Continuing Struggle Over Class Action Waivers in Arbitration

(12/01/15)Robert Arrington

The issue of mandatory arbitration of employment and consumer disputes continues to be controversial.

F. Peter Phillips

A Company That Can’t Make Up Its Mind

(11/30/15)F. Peter Phillips

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.

Charles Hill

The Opposite of “Judge Judy” in a Nutshell

(10/30/15)Charles Hill

This article addresses the stark differences Judge Judy-type courtrooms and mediation.

Beth Graham

COA Orders Employment Discrimination Case to Arbitration

(10/30/15)Beth Graham

Texas’ 13th District Court of Appeals has ordered an employment discrimination lawsuit to arbitration.

Richard Chernick

Witnesses in Arbitration – California Arbitration Act

(10/23/15)Richard Chernick

Testimony and documents may be obtained in arbitration in accordance with the parties’ agreement, the applicable institutional arbitration rules and provisions of law (federal and state arbitration acts, as applicable).

Beth Graham

Mandatory Arbitration in Consumer Finance and Investor Contracts

(10/16/15)Beth Graham

Michael S. Barr, Roy F. and Jean Humphrey Proffitt Professor of Law at the University of Michigan Law School, has published “Mandatory Arbitration in Consumer Finance and Investor Contracts." In his article, Professor Barr argues that federal agencies should use their authority under the Dodd-Frank Act to restrict or eliminate the use of arbitration provisions in consumer finance and investment contracts.

Michael Mcilwrath

Survey Says: Institutions Could Do A Lot To Improve

(10/12/15)Michael Mcilwrath

The 2015 International Arbitration Survey is out. Subtitled “Improvements and Innovations in International Arbitration,” the most recent effort by Queen Mary / White & Case has a lot to say about efforts to date to improve the practice and what more can be done.

Beth Graham

Ride Sharing Arbitration Agreement is Socially Unconscionable

(9/25/15)Beth Graham

A California judge has reportedly declined to order a dispute between transportation network company Uber and a former driver to arbitration. In the case, a San Francisco Superior Court judge ruled that the arbitration clause between the parties was “substantively unconscionable” due to its contradictory language.

Beth Graham

Arbitrating Antitrust Claims From Suspicion to Trust

(9/18/15)Beth Graham

Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust,” New York University Journal of International Law and Politics (JILP), Vol. 48, 2016, Forthcoming. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.

Beth Graham

Arbitrating Antitrust Claims: From Suspicion to Trust

(9/12/15)Beth Graham

Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust”. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.

Beth Graham

Reasoned Awards in International Commercial Arbitration

(9/04/15)Beth Graham

University of Missouri School of Law Professor S.I. Strong has written “Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy,” 37 Michigan Journal of International Law, 2016, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-18. In her publication, Professor Strong analyzes the requirement for reasoned awards in the context of international commercial arbitration.

Lara Pair

What’s Next? – Practical Ponderings on Arbitrators and Overturned Jurisdictional Awards

(9/04/15)Lara Pair

There are a number of questions that influence how arbitration treats cases in which an award is challenged successfully. A court overturns an award declining jurisdiction, but what’s next? The easy answer, and certainly the practical one is for the arbitrator to resume the case and render an award on the merits.

Beth Graham

Patent Arbitration: It Still Makes Good Sense

(8/21/15)Beth Graham

Peter Michaelson, Michaelson ADR Chambers, LLC, has published “Patent Arbitration: It Still Makes Good Sense,” Landslide (Journal of the ABA Section of Intellectual Property Law); July/August 2015, pp. 42-47. In his paper, Mr. Michaelson examines the future of patent arbitration following the implementation of the Leahy-Smith America Invents Act.

F. Peter Phillips

Colin J. Wall Memorial

(8/07/15)F. Peter Phillips

The death of Colin J. Wall on July 16, 2015, is a crushing blow to our profession and a personal loss to me.

Lynn Duryee

Make the Most of Your Mediation: The Single-Family Construction Defect Case

(7/30/15)Lynn Duryee

How can you economically and effectively settle the single-family construction defect case? In a recent mediation involving a homeowner, contractor and 15 subs, the participants used the following practices, which resulted in 16 signed settlements at the end of one day.

Missourri Declares it Unconscionable for NFL Commissioner to Arbitrate Employment Dispute

(6/12/15)Beth Graham, Liz Kramer

Disputing would like to invite you to check out Liz Kramer’s recent blog post entitled “Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute.” In her blog post, Ms. Kramer examines two significant arbitration decisions that were recently issued by the Supreme Court of Missouri.

Michael Moffitt

A Maddening Nevada Supreme Court Case

(6/06/15)Michael Moffitt

Three days ago, the Nevada Supreme Court released an opinion in the case of Weddell v. Sharp et al. (Here). Although it has facts that would make ADR & Civ Pro professors fairly swoon, the opinion itself is maddening. Both the majority and the dissent.

Art Hinshaw

Asking Tough Questions About Mandatory Arbitration and Article III

(6/01/15)Art Hinshaw

Our good friend Jean Sternlight (UNLV) sends along her opinions on Sharif, one of last week’s Supreme Court cases and how it impacts the Federal Arbitration Act.

Jack Wright Nelson

Waiving the Right to Arbitrate in the United States: Should the Prejudice Requirement be Discarded?

(5/22/15)Jack Wright Nelson

The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year.

Katherine Graham

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

(5/15/15)Katherine Graham

Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has published “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights,” 124 Yale Law Journal 2015. In her article, Professor Resnik provides a different perspective regarding the effect recent Supreme Court precedent pertaining to class waivers has had on arbitration in the United States.

Gary Direnfeld

Differentiating Between Mediation, Med/Arb and Parenting Coordination

(5/15/15)Gary Direnfeld

There are only so many options available for separated parents to settle their parenting disputes in a way that minimizes lawyer involvement. Chief among them are: Mediation; Mediation/Arbitration (Med/Arb); and Parenting Coordination.

Beth Graham

Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses

(5/08/15)Beth Graham

Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services.

Richard Birke

Federal Arbitration Case Update | Bound and Determined

(5/01/15)Richard Birke

APMM contracted with Noatex to build a building and Noatex subcontracted with King. When Noatex deemed King’s work inadequate, King filed a stop work notice and informed APMM that Noatex owed King $260,000. This matter resulted in APMM’s interpleading the money while the federal court in Mississippi figured out who was entitled to what.

Michael Moffitt

Whisper, "Here's My Contact Information; Don't Accept Anything Until We've Talked."

(4/24/15)Michael Moffitt

In this morning’s Chronicle of Higher Education, an article entitled “Time to Change the Rules of Negotiation,” focusing on entry-level employment negotiations, what’s negotiable, what’s reasonable, and what’s not.

Beth Graham

Fifth Circuit Rules Arbitrator Exceeded His Authority in Contract Dispute

(4/17/15)Beth Graham

The United States Court of Appeals for the Fifth Circuit has held that an arbitrator exceeded his authority in a contract dispute. In PoolRe Insurance Corp. v. Organizational Strategies Inc., No. 14-20433, Organizational Strategies Inc. (“OSI”) entered into a contract with Capstone Associated Services to create a new captive insurance program.

Susan Yates

Family Law Arbitration Act

(3/31/15)Susan Yates

People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?

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