This article describes the cultural, economic and structural changes in the legal and business communities that have transposed “Alternative Dispute Resolution” (ADR) from a “cross-practice” which litigators engage in when they are contractually required or court-ordered to do so to a fully-integrated but increasingly separate and distinct set of dispute resolution services to be offered by law firms or other private “Dispute Resolution Firms”, “Groups”, and “Individual Professionals”.
Elizabeth Chika Tippett, Associate Professor and Conflict & Dispute Resolution Program Faculty Co-Director at the University of Oregon School of Law, and Bridget Schaaff, University of Oregon School of Law, have published “Misclassification in the Sharing Economy: It’s the Arbitration Agreements.”
“I want my day in court.” This is one of the most frequent desires and sentiments expressed by a new client in our initial conversation about their legal dispute.
This article gives an excerpt from Tom Stipanowich's reflections on the mediation field.
When discussing different forms of conflict intervention, the various processes are sometimes listed in order of increasing party control.
A few months ago we posted disconcerting news of a dissatisfied party to a California arbitration who, rather than seeking to vacate the award pursuant to state or federal arbitration statutes, sued the arbitrator and the service provider, alleging that the arbitrator’s qualifications had been misrepresented on the provider’s website.
Studies demonstrated that wealthier people are far less likely to donate to charity if the appeal comes as something “for the greater good”.
In a very unsurprising decision, the Supreme Court ruled 7-1 that a Kentucky nursing home can enforce contracts signed residents’ relatives that required all disputes involving the nursing home to arbitration.
An “unnatural” disposition in a decedent’s will can cause intra-family conflict, and will contests are often expensive and lengthy.
Alan S. Rau, Mark G. and Judy G. Yudof Chair of Law at the University of Texas at Austin School of Law, has published “The Agreement to Arbitrate and the ‘Applicable Law’.”
In my sometimes over-simplified way of looking at negotiated agreements, I have argued that the most useful way to evaluate a potential deal is to compare it to alternatives that are actually available.
Many construction lawyers who specialize in transactional work acknowledge that they do not spend much time considering or negotiating the arbitration clauses in construction contracts.
Following are some tips to help even the most experienced counsel take advantage of one of arbitration’s best benefit: flexibility.
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.
After this political year, we ask: why will the publis only accept facts which support their current beliefs?
SCOTX Refuses to Reconsider Patent Company’s Request to Vacate Arbitrator’s $3 Million Legal Fees Award
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.
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.
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.
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.
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.
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.
The new Department of Education rules include significant provisions restricting school arbitration agreements.
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.
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.
Federally Funded Nursing Homes No Longer Allowed to Require Residents to Sign Binding Arbitration Agreements
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.
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.
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.
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.
Yes, here it is. The final part of the Regulatory Robustness Rating (RRR) trilogy.
Ms. Sussman discusses her recently conducted survey regarding the preferences and decision-making of 401 domestic and international arbitrators.
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.”
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.
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.
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 . . .
Texas’ Fifth District Court of Appeals in Dallas has ordered an injured nurse’s lawsuit filed against his former employer to arbitration.
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.
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.
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.
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
Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts.
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.
“Any Party May Submit the Dispute to Binding Arbitration”: the Privy Council Examines the Option to Arbitrate
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.
Following are two interesting and recent federal court rulings related to arbitration.
Texas Supreme Court Will Not Review Case Where Post-Arbitration Discovery Ordered Due to Neutral’s Alleged Evident Partiality
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.
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.
Russian courts take a view that a shareholder is not bound by an arbitration clause included in a contract.
The issue of mandatory arbitration of employment and consumer disputes continues to be controversial.
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.
This article addresses the stark differences Judge Judy-type courtrooms and mediation.
Texas’ 13th District Court of Appeals has ordered an employment discrimination lawsuit to arbitration.
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).
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.
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.
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.
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.
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.
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.
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.
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.
The death of Colin J. Wall on July 16, 2015, is a crushing blow to our profession and a personal loss to me.