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July 2020
7/07

How forced arbitration can hurt Black and brown workers

The Economic Policy Institute finds that 65% of companies with more than 1,000 employees have mandatory arbitration procedures — meaning workers must settle employment disputes through a private mediation system, out of the public eye. The practice that garnered criticism during the #MeToo movement for concealing patterns of sexual harassment in the workplace is again under fire for making it harder for employees to hold employers accountable for racial discrimination.

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A Guide To Drafting Enforceable Arbitration Clauses

Many businesses choose to include arbitration clauses in their agreements with their customers, vendors or employees. They do so because, as data increasingly shows, arbitration is on average a significantly faster and cheaper means of resolving a dispute in a confidential, flexible and expert manner. And, as courthouses have closed during the coronavirus pandemic, arbitration has become, in many jurisdictions, the only ongoing means of resolving disputes.

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Heller v Uber: The Supreme Court finds arbitration clause unconscionable and establishes new test for determining when to stay litigation in favour of arbitration

Heller develops arbitration and contract law in three important ways: It provides guidance on whether domestic or international arbitration legislation applies; It develops the competence-competence principle; and It restates the doctrine of unconscionability.

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Fundamentals|An Overview on International Arbitration

There are three major methods of international dispute resolution; namely international arbitration, international commercial litigation, and alternative dispute resolution (ADR). Among these, arbitration is the most popular way of resolving cross-border disputes between states, companies, and individuals.

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How Mediation Firm JAMS Became the Dominant Player in the LA Market

An international business, JAMS is considered the dominant company in Los Angeles and the nation when it comes to private mediation and arbitration services.

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June 2020
6/30

Black workers matter, so end forced arbitration

As employment lawyers who have devoted our careers to fighting discrimination in the workplace, we are heartened to see the world awaken to systemic and structural racism after the egregious killings of George Floyd, Ahmaud Arbery and Breonna Taylor.

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Supreme Court of Canada Finds Arbitration Clause to Be “Uber” Unconscionable

On June 26, 2020, the Supreme Court of Canada (SCC) released its decision in Uber Technologies Inc. v. Heller. The SCC ruled in favour of the plaintiff, allowing him to proceed with a class-action lawsuit in Ontario courts, rather than through a foreign arbitration.

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Questions To Ask When Changing Your Arbitration Clause

In a prior post, we highlighted some questions that companies may want to ask when evaluating whether their arbitration clauses are enforceable. If changes need to be made to those clauses, then companies should consider how to implement those changes so as to ensure those are enforceable too.

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Employee Arbitration Agreements Can Include Some Confidentiality Provisions, NLRB Holds

The National Labor Relations Board (NLRB) has held an employer lawfully included confidentiality language in an arbitration agreement its employees were required to sign as a condition of employment. California Commerce Club, Inc., 369 NLRB No. 106 (June 19, 2020).

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Global Arbitration and Mediation Services Market: Trends Estimates High Demand by 2027

Research on Arbitration and Mediation Services Market (impact of COVID-19)

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6/23

Sweating The Details: Court Analyzes User Interface To Uphold Online Arbitration Clause

Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective, however, they must be implemented properly.

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NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA.

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Counterpoint: In defense of arbitration

In deciding if recent criticism is accurate, it's important to look at the facts.

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An Arbitration Clause Health Check

Arbitration clauses with class action waivers remain one of the most effective tools that consumer-facing companies can employ to fend off consumer class action litigation. Yet many companies stumble both in getting their customers to agree to the arbitration clause and in drafting a clause that captures all claims that they might face.

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6/16

Effective Case Management in Arbitration and Virtual Hearings
Check out a free webinar presented through Arbitral Women by Mireze Phillippe and Mohamed Abdel Wahab on June 18th, 2020 at 11:00 Paris and Cairo (CET) / 17:00 Shanghai / 18:00 Seoul / 18:30 Adelaide / 19:00 Sydney and Melbourne.

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January 2020
1/06

Texas’ System for Mediation, Arbitration of Medical Billing Disputes Now Available

The Texas Department of Insurance says its Independent Dispute Resolution portal for medical billing disputes went live on January 1.

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November 2019
11/12

Weighing up litigation, arbitration and mediation

There is a time and a place and a method for resolving every dispute. After all, every problem has a solution, however intractable or difficult it may seem.

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August 2019
8/05

Building a Safe Place for Mediation in Arbitration Proceedings

It is a critical time for the arbitration community to consider a blueprint for increasing the use of mediation so that settlement rates in arbitration can be competitive with litigation.

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July 2019
7/16

Canada to launch “world first” MedArb

ADR Institute of Canada pushes pioneering role with planned launch of new rules, designation and templates for Med-Arb.

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7/01

Texas Court Says Express Consent is Key if You Want Your Mediator to Arbitrate Disputes That Arise When Memorializing a Settlement

If parties wish to empower their mediator to arbitrate open issues, however, the language in any settlement reached at the conclusion of a mediation should clearly and unambiguously express the consent of both parties for the mediator to serve in that role, as per a recent Texas appellate court decision.

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June 2019
6/25

When Memorializing a Mediated Settlement, Empower the Mediator to Resolve Any Disputes Over Language

To avoid any issue with the enforceability of an agreement in principle signed at the conclusion of a mediation, parties should agree in advance that if negotiations to memorialize the settlement in a more formal agreement break down, the mediator shall resolve any remaining disputes over language or otherwise.

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6/06

The Merits of Med-Arb

If Mediation Fails to Resolve a Dispute, Should Parties Let the Mediator Arbitrate?

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May 2019
5/15

LIDW19 ends on a high

As London International Disputes Week draws to a close, a commercial courts report highlights London's record year, while organizers are optimistic the inaugural LIDW will be back next year.

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April 2019
4/02

Legal voices in Cork endorse 'alternative dispute resolution'

While litigation will remain the dominant mechanism in resolving disputes, there are now several alternative mechanisms such as arbitration, mediation and conciliation to consider.

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January 2019
1/08

Ontario court deems Uber’s mandatory arbitration clause ‘unconscionable’

The Ontario Court of Appeal has reversed a lower court decision in a proposed class action against Uber. The court determined that the company’s arbitration provision, which sends matters for arbitration to the Netherlands, represents an “unfair bargain” and is “unconscionable.”

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December 2018
12/10

A Glimpse into the Future of Alternative Dispute Resolution in China

The Chinese legal system has matured dramatically in the past 10 years. ADR is also growing, with more than 300 providers doing business in China and arbitration being regularly used.

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Future Of Investor-State Dispute Settlement Mechanisms Under The United States – Mexico – Canada Agreement

This article focuses on the investor-state arbitration provisions in Chapter 14 of the USMCA, which represent a significant departure from the investment protections in Chapter 11 of the North American Free Trade Agreement (NAFTA).

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November 2018
11/27

The Singapore Convention: A breakthrough for international trade
'
Litigation and arbitration can be lengthy and costly, which explains in part why mediation has been gaining in popularity as a method for resolving cross-border commercial disputes.

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11/19

Handling a commercial dispute claim

Hilary Messer, a senior associate and specialist in dispute resolution, discusses ways to prevent a UK commercial dispute claim from going to court.

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August 2018
8/01

Updated WIPO Guide On Alternative Dispute Resolution A Tool For IP Offices

The World Intellectual Property Organization Arbitration and Mediation Center has released an updated guide providing an overview of alternative dispute resolution (ADR) processes for intellectual property disputes.

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May 2018
5/01

Singapore International Mediation Centre names new CEO

The Singapore International Mediation Centre has named Mr Aloysius Goh as its chief executive from Tuesday (May 1), succeeding Ms Lim Seok Hui who becomes a Board member.

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April 2018
4/26

In The Future Blockchain Will Solve Most Real-World Problems -- Even Arbitration

When examining the legal system, Ast followed Elon Musk’s advice and first considered the principles. At its core, what is a court system? The answer he saw was people trying to find the truth in a given situation, such as whether an agreement was broken.

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March 2018
3/21

Encouraging Greater Use of Mediation in International Commercial Arbitration

Mediation is not a staple of complex international commercial arbitration. It may well precede it—many arbitration agreements contain a “tiered” approach to dispute resolution that includes mediation—but, once a large international arbitration is fully underway, mediation has not been widely accepted.

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January 2018
1/30

'You can't force people into mediation': Society spells out ADR wishes

Lawyers and consumers need to ‘buy into’ the use of alternative dispute resolution but do not need it forced upon them, the Law Society has said.

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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:

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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.

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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.

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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.

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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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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