In today's world, disputes over intellectual property rights frequently transcend national borders. Although not without its own complexities, arbitration can offer a more streamlined and efficient mechanism for resolving such disputes than litigation in multiple national courts.

What trial lawyer would not want to be able to select the judge hearing the case? Arbitration allows the parties to determine the arbitrator’s background. Unlike litigation, it gives them choices and flexibity to design a process to fit their needs.

Umpiring errors were a bigger story in the recently completed World Series than the New York Yankees’ record-setting 27th pennant. Decision errors reached comic proportion in game four of the American League playoffs in Anaheim. In what ESPN dubbed “the worst umpiring performance at an Angels game since Leslie Nielsen in The Naked Gun,”1 third-base umpire Tim McClelland called Yankee Nick Swisher

Arbitration is the process of settling disputes between parties by a private tribunal. Courts favor arbitration because it can provide a speedy, informal, and inexpensive alternative to litigation, and may reduce a court’s docket. The court’s role with regard to review of the merits of an arbitration decision is limited by statute. A court generally may vacate an award only when fraud, corruption, or denial of due process has tainted the legitimacy of the award.1 When review is allowed, it generally will be very deferential.

The proposed Employee Free Choice Act calls for interest arbitration to conclude a first collective bargaining agreement between a private-sector employer and a labor union if the parties cannot reach a negotiated agreement themselves. If the bill is enacted, the Federal Mediation and Conciliation Service would be required to promulgate implementing regulations. This article responds to criticism of the bill using data from the U.S. and Canadian experience with interest arbitration. It also suggests how the FMCS could address these criticisms through regulations.

Many commercial mediators take the view that they are solely engaged by parties to resolve the presenting business dispute. But does such a view blind mediators—to the parties’ detriment—to the presence of personal conflict that may have more to do with achieving a settlement than the business issue? This article looks at whether mediators should pursue the twin outcomes of resolution and reconciliation to achieve truly satisfactory outcomes in commercial mediations.

Mediation is the newest alternative dispute resolution method to be institutionalized by state law in Poland. One of the first EU Member States to enact a mediation regime for civil and commercial matters,1 the legislation was added to Poland’s Civil Code in 2005 and entered into force on Dec. 10, 2005.

Arbitration is a creature of contract, making it prone to change. The touchstone for a successful arbitration is careful drafting of the arbitration clause, according to authors Scott Marrs and Sean Milligan. They pose 10 critical questions that will help drafters of arbitration agreements, parties counsel and arbitrators understand recent developments in arbitration.

Apreliminary hearing is a required first step in most arbitrations to ensure that the process is orderly and efficient. This hearing, however, is not enough to ensure a timely arbitration that will meet the goal of holding the final hearing within one year of the filing of the demand. This article provides insights and tips on critical issues that help meet this goal: hands-on management by the arbitrator, a comprehensive scheduling order, and a pre-hearing conference one week before the final hearing to resolve any remaining problems. Although this article is written for arbitrators, it should hold as much interest for attorneys and parties in the process.

This article suggests that mediators should develop leadership abilities and an understanding of human behavior in order to work productively with difficult parties. Mediators need to understand why parties and counsel behave as they do in mediated negotiations—why some make ultimatums, others are unwilling to commit, and others are ready to agree to any offer. This article suggests that the Q4 Dimensional Model of Behavior—a graphic tool used in business management that divides human behaviors into four categories—will help mediators understand different behavioral types in order to select appropriate strategies to advance the mediation.

Nothing in the nursery rhyme states that Humpty Dumpty was an egg or that the wall was in danger of collapse.1 If the rhyme were about a construction accident, we would say that this is an example of poor draftsmanship. What caused Humpty’s fall? Did the wall collapse? If so, was it defectively constructed or repaired? Who was responsible for constructing or repairing the wall? What did the contract documents say? What should they have provided? Were the sureties notified? What about “the king’s men”? Were they incompetent or excused by force majeure?

How do you know if mediation is appropriate for your client? How do you prepare yourself and your client for mediation? A mediator and former litigator offers 11 practical tips for attorneys who represent clients in mediation or are contemplating doing so.

The Supreme Court reinforced the longstanding policy in favor of arbitration in Hall Street Associates v. Mattel by narrowly restricting the grounds to vacate an award under the Federal Arbitration Act (FAA). Nevertheless, the practical impact of this decision has been less than clear in the federal appeal courts that have interpreted Hall Street. This uncertainty has fueled the movement against enforcing pre-dispute arbitration agreements in all employment, consumer and franchise agreements based on the belief that such agreements unfairly favor corporations and business. The Supreme Court recently agreed to review Stolt-Nielson v. AnimalFeeds International Corp., a 2nd Circuit decision interpreting Hall Street. This puts the Supreme Court in a position to clarify any remaining ambiguities regarding the grounds available to vacate or modify an arbitration award. This article suggests that Congress allow the Supreme Court to clarify the scope of review under the FAA before taking any action on proposed legislation that could irreparably harm the arbitration process.

The purpose of this article is to explore traditional interpersonal conflict resolution methods through the looking glass of the Abkhaz community in Turkey. This community is a relatively small minority, having a population of approximately half a million people. The reason for choosing it for analysis is that the community is believed to be peaceful so when interpersonal conflicts arise, its members seek to resolve them quickly and constructively.

If you are filing an arbitration-related award in federal court based on diversity jurisdiction, proceed with caution. You need to know how the federal court you are considering calculates the amount in controversy for diversity purposes. This article discusses the different approaches courts have taken when faced with this issue.

The global recession clearly has had a sobering impact on international arbitration. This impact can be met with practical suggestions for saving precious client resources. This article suggests how the proverbial flexibility of arbitration can be used to achieve concrete improvements in the process that will save time and costs.

Employers are increasingly including in their arbitration agreements a provision waiving the right to bring class action claims in arbitration. The case law regarding the enforceability of class action waivers in the employment context is relatively sparse. There is more case law on this issue in the consumer arena. This article addresses the issues surrounding class action waivers and proposed legislation that would make this issue moot by making arbitration agreements in the employment setting unenforceable.

Can a court recognize the broad authority of arbitrators but then usurp that authority by reviewing the award de novo? The author says the 2nd Circuit did exactly that.

At the center of this conflict in Brazil’s recent case law is the compromisso (i.e., a submission agreement). One case holds it is not required in a “full arbitration clause,” while the other holds that it is always required to initiate arbitration. How this conflict will be resolved has significant ramifications for international arbitration in Brazil.

In recent years there has been growing acceptance of the notion that an internal conflict management system (CMS) for workplace disputes must be designed to promote a positive work environment. This article discusses the design and implementation of a CMS for an Israeli municipality: it focuses on the findings of a needs assessment survey, which guided the design of the system, and reports on how the organization promoted the CMS to its employees. In addition, it assesses how effective the CMS has been from the perspective of users on improving interpersonal relationships and creating a positive workplace atmosphere. It concludes with a discussion of the conditions required for a successful incorporation of the system within an organization.

The implications of the many recent Supreme Court decisions in 2008 and 2009 have yet to be fully understood. This article discusses the possible implications of the Court’s ruling in 14 Penn Plaza v. Pyett on the application of the FAA to arbitration provisions in collective bargaining agreements.

Trial lawyers have helped create a cottage industry of jury consultants who, for considerable fees, assist them in identifying jurors who have either an inherent bias1 against certain matters or a leaning in favor of others. “Voir dire” is the name of the process of questioning prospective jurors to determine if they should be disqualified either for bias or for another reason using one of counsel’s peremptory challenges.2 The objective of voir dire is to select jurors who are most inclined to find in favor of one’s client and eliminate those who are predisposed to finding against the client.

Arbitrators have a duty to increase the efficiency of the arbitration process. They can do this by requiring counsel and the parties to immediately focus on the real issues in the case, provide the arbitrators with information they need to organize the pre-hearing and hearing procedures around these issues, and prepare a well-conceived award. This article provides practical suggestions arbitrators can use to achieve these goals.

A highly respected labor arbitrator describes how Cambodia’s efforts to develop a labor arbitration program with the assistance of the International Labour Organization has become a model for developing countries to follow.

The Supreme Court’s view of which law applies when parties select the law of a particular state in their arbitration agreement seems to be evolving. This article discusses the High Court’s thinking in the Volt, Mastrobuono and Preston decisions and provides practical guidance for parties who wish to have the Federal Arbitration Act apply to the arbitration and state law apply to the merits of the dispute.

The prevailing belief among many mediators is that the market drives them to be good “settlers.” This is a myth. The mediator’s calling is deeper and greater than being a “settlement broker.” If mediators focus solely on settlement, they may be tempted to transgress the bounds of ethical propriety. This article argues that mediators provide many other services besides that of settlement broker. It also contends that by focusing on these services, mediators will be better appreciated by the parties and counsel. A good outcome will always flow from great mediation services, making deception unnecessary.

Taking a systematic approach to preparing for mediation produces better results than the methods most practitioners use. The advantages of this approach are that it enables you to develop viable strategies for the mediation. In addition, the approach can be used in all kinds of cases.

Crop insurance, a federal initiative that began in the 1930s, has grown steadily, insuring millions of acres of food production. Accompanying this growth are more complex insurance rules. Insurance disputes are administered by the American Arbitration Association. The arbitrators who decide these cases must understand the nature of the dispute and the regulations that govern crop insurance coverage. This article explores the origins and development of the Multi Peril Crop Insurance (MPCI) program and the regulatory scheme, and discusses the nature of MPCI coverage and some of the issues that arise when crop insurance disputes are arbitrated.

This study of 200 drug use-related labor arbitration awards published between 1986-2003 examines a number of variables in these cases, among them the scope of the employer’s drug use policies, whether the employer discharged the grievant or imposed lesser discipline, and whether the employer’s response to drug abuse was upheld, overturned or modified in arbitration. The findings in this study are compared with those in an earlier study of drug use-related awards.

Parties to arbitration expect that they will have a full and fair opportunity to present their claims and defenses and the supporting evidence to the arbitrator. But when a commercial case is large or complicated in that it involves multiple parties, difficult or unusual features, or simply a large amount of money, everyone involved—the parties, their counsel and the arbitrators—must strive in earnest to keep costs down and avoid unnecessary delay while ensuring a fair process. Achieving these dual—and seemingly conflicting—goals requires foresight and planning during the initial stages of arbitration.

E-discovery has become a fixture in modern civil litigation. Almost inevitably, e-discovery will also increasingly affect arbitration. Because of the unique goals and processes of arbitration, rules for e-discovery must be adapted to meet the needs of parties in arbitration. The AAA and other arbitration-sponsoring organizations have begun to develop e-discovery processes appropriate for arbitration. This article discusses them and suggests drafting techniques and litigation strategies that could control the use of e-discovery in arbitration.

Negotiators often use, consciously or unconsciously, different social norms to achieve one of the most basic psychological drives—maintaining consistency and fairness. Researchers have suggested that people from different cultures may prefer different norms. The authors studied how a group of American and European respondents viewed four norms in order to determine if their preferences are culturally based. They found that all respondents understood and accepted the norms as “fair and reasonable” but in hypothetical negotiating situations, the U.S. and European respondents preferred different norms.

India’s Supreme Court decision in the Global Ventures case makes foreign arbitration awards subject to a set-aside action under the domestic provisions of India’s Arbitration Act, unless the parties clearly opt out of these provisions in their arbitration agreement.

An overview of whistleblower laws—including protections from employer retaliation under federal environmental and nuclear statutes, the False Claims Act, and the Sarbanes-Oxley Act—and the unique elements of mediating these claims.

A new study of 158 state and federal cases decided in 2008 in which a party asked a U.S. state or federal court to vacate an award on the ground that the arbitrators exceeded their powers. The results largely confirm earlier research identifying a few “red flag” fact patterns with elevated risk for vacatur on this ground, and perhaps suggest increased future use of this ground by parties disappointed by the result in Hall Street Associates v. Mattel.

A random sample of court decisions in labor and employment cases is studied to identify factors present in the legal challenge and in the cases where the award was vacated.

What construction industry arbitrators are thinking about, how they can influence the outcome, and why and how you should connect with them when presenting your case.

How the California Supreme Court muddied the waters with its decision upholding expanded review in Cable Connection v. DIRECTV.

Are judicial remands to arbitrators a mine field? The authors look at the legal foundations and practical issues that can arise.

Globalization has its dark side—e.g., multinational corporations committing large-scale environmental torts on foreign soil through their subsidiary operations. Victims in developing countries have few means of redressing these torts. This article discusses an advantageous alternative to litigation, which has proven ineffective: using the U.S. Alien Tort Claims Act as leverage to encourage multinational corporations to mediate these disputes.

As a result of economic retrenchment and global competition, the workplace has become a less hospitable environment for employees, many of whom turn to the courts to resolve disputes arising out of the employment relationship. The author demonstrates that mediation is not only a highly successful way of settling these disputes, it is also a process in which employees can regain their self-respect as well as the feeling that they are respected by others—results that are most unlikely to be realized in litigation.

This article examines issues that could arise if a party petitions a U.S. federal court to enforce an emergency arbitrator’s Article 37 decision to grant pre-arbitration provisional relief.

An overview of the law on arbitrator mmunity and its application to labor arbitrators.

When disputes arise about who is eligible to participate on the U.S. Olympic Team, or a positive drug test, the AAA provides a forum to resolve them.

The similarities and differences in the conflicts-of-interest disclosure rules promulgated by the IBA, the ICC, the ICDR/AAA, the LCIA and the UNCITRAL.

What does “arbitration” mean in the context of the Federal Arbitration Act? With no statutory definition to guide them, courts have struggled with this question. This article looks at a recent 11th Circuit decision on the issue and discusses its troubling consequences for parties who desire to enforce agreements to use the process known as Med-Arb.

Mediation puts the parties in ontrol of the outcome of their dispute. So the process ensures that construction parties can control their own destiny when they agree to mediate

Discovery in arbitration is different from the virtually unlimited discovery process used litigation. The reason that the arbitrator’s job is to deliver a faster and less expensive process. This article discusses how arbitrators handle discovery in arbitration and the considerations they take into account when deciding how much and what type of discovery to allow. It also discusses the approaches to discovery taken in arbitration rules and the Revised Uniform
Arbitration Act.

Parties want to be able to find information about potential mediators, including comments by other parties who have used the mediator’s services. The voluntary IMI Mediator Certification Program discussed here will allow parties to obtain this kind of information.

The traditional informal conflict resolution method in the Middle East is called Sulha, which means “peace” in Arabic. This process is specifically designed to resolve conflicts between the familial clans to which the disputants belong (called Hamulain Arabic). Although the process employs techniques that are similar to mediation and arbitration as used today throughout the world, it also differs in major respects. This article examines the Sulhaprocess and looks at its similarities and differences from modern ADR.

What the case law, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the U.S. Arbitration Act say about whether U.S. courts should enforce foreign arbitration awards that have been set aside in the state where the arbitration is held.

Consumer class actions have flooded the courts for many years. The stakes are high for corporations named as defendants in these cases because even though the individual consumer’s claim is small, the class size is large and the fees sought by the attorneys for the plaintiff class are high. For this reason, most consumer class actions filed in court eventually settle. To protect themselves from the possibility of runaway jury awards, many consumer companies began to require their customers to arbitrate disputes. Then they began to ban the use of any kind of collective proceeding (i.e., a class action) in litigation, arbitration or administrative proceedings.

How the information exchange guidelines came about and why they are so important.

What should parties expect from the ICDR pre-arbitration emergency relief procedure? Part I of this article examines the requirements of Article 37 of the ICDR International Arbitration Rules and four cases in which a party sought pre-arbitration emergency relief under its provisions. Part II, which will be published in the next issue of the Dispute Resolution Journal, considers the issue of enforcement of emergency arbitrator decisions in U.S. courts.

Unlike other generic writings on how to resolve business disputes, we offer 10 “golden rules” that U.S. corporate counsel should follow when they engage in settlement negotiations of an investment dispute with a foreign sovereign or state entity. Negotiating with foreign governments can be challenging because they generally do not share the same objectives as private companies.
Private enterprises are usually driven by one goal: making money.

The issues involved in determining how much settlement authority is needed by the mediating parties.
 

When Vince Lombardi,the legendary coach of the Green Bay Packers, said of football, “Winning isn’t everything; it’s the only thing,” he might just as easily be describing the attitude of parties who are disputing the enforcement of foreign arbitral awards in the courts. In 2007, the parties challenging enforcement were remarkably unsuccessful. U.S. district courts confirmed international arbitration awards almost across the board.

A look at the liberal and conservative approaches to anti-foreign suit injunctions, the recent case law, and drafting suggestions to prepare for the possible need for such an injunction

Today many attorneys recognize the value mediation has for clients. But since many clients have no experience with mediation, there is much they need to know to be able to decide whether to mediate a particular dispute, and how to mediate effectively. The questions and answers here can help counsel prepare for these discussions. They should also be of interest to mediators who can ask counsel pertinent questions to facilitate the design ofthe mediation process.
 

This article discusses the advantages of arbitration for construction disputes and how to tailor the process to the needs of the parties. It also addresses the recent change in the AIA standard form construction contract making arbitration an election rather than the default process.

Deciding whether to litigate, arbitrate, or mediate requires an understanding of three dispute resolution processes. The authors begin with the major characteristics of litigation, and then discuss whether these characteristics are present in arbitration and mediation, and if not, how these processes differ.

The author explains why attorneys must comply with applicable codes of professional conduct when they serve as counsel in arbitration proceedings and why it falls to arbitrators to deter and penalize unethical behavior by counsel that would affect the fairness of the proceedings.

In a park a short distance from the United Nations, the following quote by Dag Hammarskjöld, former U.N. Secretary General, is inscribed on a walkway: “Never for the sake of peace and quiet deny your own experience or convictions.” That wonderful thought resonates for the American Arbitration Association as an organization, which has been committed to the attainment of diversity in all aspects of ADR. What I mean by diversity has been described by Judge Timothy Lewis, the chair of our Diversity Committee, formed in the fall of 2006, as “promoting inclusion of various individuals who historically have been excluded from meaningful and active participation in ADR.” Clearly this includes people of color, women, Asian Americans, Native Americans and Hispanic Americans and other minorities.

The AAA’s commitment to fair treatment and equal employment has been ongoing since its inception in 1926. Jennifer Coffman reviews that organizational mindset and explores ways in which the AAA and the dispute resolution field at large can increase the inclusiveness of ADR.

This case study compares mediators’ images concerning their practice with actual behaviors while mediating. Five experienced mediators participated in the study. They were interviewed and observed in real mediation sessions. The findings suggest that mediators tend to “walk the talk” as far as their basic assumptions about mediation’s goals are concerned. However, they do so less often when it comes to some mediation principles and tactics. The gap between espoused theories and practice may be related to the mediators’ experience and the organizational context.

On Nov. 5, 2007, the American Institute of Architects (AIA) issued its 2007 version of Standard Form A201, which contains the AIA’s General Conditions of the Contract for Construction.1 This article addresses one of the major changes that the AIA has made to the 2007 version of A201 and explains why it is fraught with controversy and confusion.

A look at the law, arbitration rules, and UNCITRAL Model Law provisions on the issue of interim relief in arbitration, as well as the issue of court enforcement.

Both conscious and unconscious forms of racial and ethnic bias in our society have, not surprisingly, resulted in the underutilization of minority neutrals in union and non-union workplace disputes. The objectives of the alternative dispute resolution movement will be better served if there is greater equality in the selection and utilization of minority workplace neutrals. The authors contend
that a program is needed to increase diversity in this area and that this program should have three components: (a) creating national and regional panels of minority neutrals to increase their visibility, availability and acceptability; (b) educating users of ADR services about conscious and unconscious biases in neutral selection processes; and (c) developing a system of accountability
to encourage ADR users to select minority neutrals for workplace disputes.

The chairman of the AAA’s Diversity Committee speaks candidly about his interest in diversity in the decision making professions, and why allowing minorities and women an opportunity to participate is so vitally important.

Dr. Pierre Karrer offers a no-holds-barred assessment of whether arbitrating with civil law or common law arbitrators or civil law or common law attorneys makes a difference in the course of international arbitration.

How economic analysis can help redirect attention from party positions to a more objective analysis based on component variables.

How labor law should be changed to protect worker representation rights, allow first agreements to be negotiated, address the more professional work force, and improve labormanagement cooperation.

This article looks at the interrelationship between bias and conflict and suggests various approaches to avoid or reduce the potentially negative effect of bias in conflict situations. Bias is a naturally occurring aspect of human behavior. Since the word “bias” could mean different things to different people, for the purposes of this article it means showing partiality to one side in a controversy or being predisposed to decide a certain way. Having bias or a predisposition to one side precludes hearing a matter with an open mind, participating in a process evenhandedly, or exercising powers impartially.

The advantages and disadvantages of using arbitration for commercial healthcare disputes.

This article asks whether, given the generality of arbitral rules, it would be prudent for parties to a dispute to stipulate to a number of matters in their arbitration agreement in order to achieve greater predictability in the arbitration.

The extraordinary challenges posed by electronic discovery are well-known to U.S. litigators. But electronic discovery is already happening also—to a limited extent—in international arbitration. This article discusses whether international rules or guidelines are needed to control the process.

Some Thoughts about the Code of Ethics for Commercial Arbitrators, the IBA Guidelines for Disclosing Conflicts of Interest, and the 5th Circuit’s Decisions in the Positive Software Case.

This article discusses positive psychology and the benefits of combining some of its techniques with traditional mediation. It places specific emphasis on using the “appreciative inquiry” approach and solution-focused counseling. It also suggests how mediators could employ these techniques.

Given the dearth of laws protecting overweight workers from discrimination, it is important to determine the extent to which grievance arbitration protects these workers. This article addresses that need by reviewing labor arbitration cases in which a worker’s weight played a prominent role. The authors found that arbitrators appear to fairly balance the respective rights of workers and employers when adjudicating claims of unfair treatment based on a worker’s weight.

Mastering basic mediation skills can take your practice to the next level. Philosophically, litigation and mediation seem worlds apart. While both are forms of conflict resolution that involve an outside party, the outcomes differ wildly. The results of litigation rarely satisfy both parties. The results of mediation are far more satisfying, since mediators use negotiation skills to reach a common ground on which all parties can agree.

A look at enforceability issues involving subpoenas for documents in the hand of non-parties who reside outside the state where the arbitration is being held.

One of the most important provisions found in many property insurance policies is the appraisal clause. Although not as often in the public eye as other ADR processes (like arbitration and mediation), appraisal is commonly used to provide an informal, less expensive and faster way to quantify the property damages owed by insurers. It is particularly well suited to deal with catastrophic losses, and its usefulness was confirmed in the aftermath of the tragedy of 9/11 and the destruction of the World Trade Center.

In recent years, there has been a growing divide over whether the federal Magnuson-Moss Warranty Act (MMWA)1 permits warranty claims to be arbitrated under the Federal Arbitration Act (FAA).2 The issue is important to businesses that have arbitration agreements with customers because arbitration can be quicker, less adversarial, and more efficient than litigation. The U.S. Supreme Court has held that the FAA embodies a strong congressional policy favoring arbitration. It has also recognized that arbitration is an appropriate means of resolving consumer disputes, observing that without enforceable arbitration agreements, the typical consumer, who has only a small damage claim, would be left with just a court remedy, “the costs and delays of which could eat up the value of an eventual small recovery.”

An international practitioner with experience arbitrating in common law and civil law regimes discusses the differences between the two systems and how the best of both are being used to improve the efficiency of international arbitration.

In an effort to evaluate the effectiveness of appellate court-sponsored ADR programs, this article analyzes whether the ADR referral process and characteristicsof court ADR programs contribute to the ability to resolve disputes. Analyzing data derived from 706 appeals in 19 appellate courts, the authors found no correlation between successful outcomes and cases referred to ADR based on case-level facts. However, successful outcomes were best achieved where there was greater court supervision of and involvement in the ADR programs. In such programs, ADR saved time and cost.

In 2000 the world watched as then-Governor George W. Bush and Vice President Al Gore challenged the results of the presidential election all the way to the Supreme Court. The High Court issued two opinions on the election and courts at the state and federal levels all weighed in with numerous rulings.

When I was recently asked to speak to a group of law school students on what it takes to establish a mediation practice, I focused on those things that lawyers should keep in mind during the struggle to begin a new profession. Since giving that talk, I have had occasion to think about the questions lawyers should ask themselves before giving up their day job to become a mediator. I present them to you here while encouraging you to pursue a mediation practice if mediation is truly in your heart and you think you have an aptitude for it.

This article explains what party and mediator evaluations of the Hurricane Katrina mediation program, as well as case disposition data, say about the program.

This article addresses the question of whether arbitrators are obligated, or have the power, to permit and set conditions on the use of a technical aid that is not equally available to both parties, and in so doing proposes several basic principles for arbitrators to consider.

Online dispute resolution (ODR) has transcended the need for parties to disputes to meet face-to-face. Thus, it provides a solution to concerns about arbitration’s efficiency and cost. It also eliminates the power dynamic sometimes present in face-to-face disputes.

Because a motion for summary disposition could be an efficient way to bring an arbitration proceeding to an end, arbitrators, parties and practitioners should learn when such a motion could be made and heard.

Article 37 of the International Arbitration Rules of the International Centre for Dispute Resolution (ICDR, the international division of the American Arbitration Association (AAA)), contains an emergency relief procedure that represents significant progress in the field of international arbitration. Before its introduction, whether the arbitration was administered by the AAA or another international arbitral institution of similar standing, a party requiring emergency relief prior to the appointment of the tribunal had little option but to approach a national court for a preliminary injunction, measures for the preservation of property, or an order placing certain property in escrow, or other form of preliminary relief.

The key question everyone asks about arbitration is whether it is cheaper than litigation. The problem with answering this question is that rarely does one have the opportunity to arbitrate and litigate the same case. It is only possible under a statutory scheme providing for non-binding arbitration and allowing a dissatisfied party in arbitration to seek a trial de novo. The only other basis of comparison is the rare instance in which a lawyer has the opportunity to arbitrate and litigate two similar cases.

This article examines the current state of the law relating to confidentiality and the steps that may be taken to secure as much confidentiality as the law will permit.

The author discusses the reasons for using mediation in criminal settings and how criminal mediation programs have worked so far. He also points out the issues that must be addressed in commencing a criminal mediation program.

There are steps, sometimes overlooked by mediators and attorneys, that can be taken outside the mediation session to help ensure that a settlement is reached. By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed.

Mediating the large, complex construction dispute from the vantage point of counsel and the mediator. Special attention is paid to organizing and dealing with negotiating groups.

Two of the most important subjects for construction professionals are dispute prevention and esolution, the reason being that construction disputes tend to plague most projects. Construction stakeholders have vast sums at stake and they need to be able to see their projects completed without messy disputes that threaten to bankrupt them and bring the project to a halt.

To mediate or not is a question parties to major construction disputes should ask themselves whenever a dispute arises. Unfortunately, it seems that, with the rise of limited liability companies, project assetbased financing, the shift to engineer, construct and procure (EPC) and design/build contracts, as well as the desire to finish projects and put them on-line as fast as possible, there is a rush toward costly, time-consuming litigation and arbitration.

Looking for more efficient dispute resolution procedures, the authors suggest adapting England’s Adjudication scheme for U.S. use. They contend that, like dispute review boards, an adjudicator’s decision, would be enforceable by U.S. courts.

Much has been written about the struggle arbitrators and parties face in blending civil and common law traditions in international arbitrations. This article focuses on a highly valuable procedure used in high stakes international arbitration proceedings to present fact and expert testimony to the arbitral tribunal. That procedure—known as written witness statements—takes the best from the common law and civil law systems in order to allow parties from different cultural and legal backgrounds to present evidence fairly to international arbitral tribunals. Among their many benefits, written witness statements prompt advocates to prepare their cases well in advance of the arbitration hearings, making them better prepared overall.

Whether you are a new or seasoned attorney recently introduced to the en vogue dispute resolution realm of arbitration, it is important to understand the arbitral process and especially its differences from litigation. As an attorney who works as an international case manager at the International Centre for Dispute Resolution (ICDR), a division of the American Arbitration Association (AAA), I often meet attorneys who misunderstand the arbitral process. The failure to possess even a general understanding of arbitration makes it a less productive, more stressful, and potentially lengthier process than necessary.

Online technology and ODR (online dispute resolution) are vital to providers of alternative dispute resolution (ADR), the former because it has the capacity to increase knowledge of ADR and the latter because it can increase the efficiency and effectiveness of dispute resolution processes. ODR can include the ability to file cases and conduct document exchanges online, communicate online, engage in online negotiations and track cases online. Technology is also transforming the field of elections.

Cases continue to come out of the issue of classwide arbitration waivers. The author examines the 1st Circuit’s most recent decision on this issue, discusses its implications for practitioners and offers some drafting tips.

It is vital to know how to cross-examine a witness in arbitration. An experienced practitioner discusses the risks of crossexamination and techniques you can use in your international arbitration practice.

In the event of a conflict between parties to a joint venture in China, negotiation and mediation ordinarily offer the best hope for reaching a solution quickly without high costs. If these methods fail, a choice must be made between arbitration or litigation. This article discusses some of the factors investors must consider in making this choice.

Asine qua non of alternative dispute resolution (ADR) is the parties’ right to self-determination, which in mediation involves the ability to select the mediator and decide whether to agree to a settlement of all or some of the disputed issues. Mediators, lawyers and scholars agree that compliance with the mediator’s duty to remain impartial during and after mediation is crucial both for the process to succeed and the parties’ rights to be protected. By complying with the duty to remain impartial, the mediator contributes to the betterment of the practice of mediation. As one commentator noted, “mediator impartiality instills trust, enables the parties to collaborate and share information with the mediator and other parties, protects mediation agreements from subsequent challenges, and helps prevent abuses of the process. In addition, an appearance of impartiality promotes public confidence in the fairness of the process.”

The Connecticut Department of Public Health experimented with the use of mediation to resolve an intractable dispute pitting several medical specialties against dental surgeons. Find out how this experiment turned out.

The evidentiary rules and discovery requirments in arbitration are far less onerous than in a courtroom. As a result, lawyers who represent parties in arbitration have more opportunities to use and present expert evidence. This article addresses some of those opportunities.

Lawyers must adapt their style of advocacy to the type of proceeding in which they are involved. Litigating in a mediation setting is unproductive. In this condensation from the book, Federal Dispute Resolution,Jeff Senger shares his knowledge of advocacy techniques necessary to mediate with a government party.

This article analyzes the legal standing of amici curiae in international trade and investment arbitration. Drawing on the most important decisions by the WTO Appellate Body and arbitral panels, the article emphasizes the fundamental tension between the traditional consent-based foundation of arbitration and the increasing need for transparency in proceedings that affect the public.
 

Satellite industry arbitration involving non-U.S. parties presents unique challenges. Because the transfer or disclosure of satellite technology to foreign persons is strictly controlled by the International Traffic in Arms Regulations (ITAR), special arrangements must be made with the Departments of State and Defense before an arbitration involving satellite technology may proceed. This article discusses the regulatory scheme and how these arbitrations can be successfully managed.

When discovery of electronic information (ediscovery) is permitted in arbitration, will arbitrators impose sanctions for lost emails or other electronic files? This article discusses how arbitrators could respond to demands for email and backup tapes, and claims that the attorney-client privilege has been waived through the inadvertent production of edocuments.

With the growth in the global marketplace and the increased reliance on international arbitration to resolve private international commercial disputes, it has become increasingly important for regional arbitration centers to modernize their arbitration rules to bring them in line with current standards. Authors Melanie Ries and Bryant Woo describe the changes to the arbitration rules of the JCAA and CIETAC, and point out their differences and similarities and where they have made advances and where they have not gone far enough.

This article discusses the players in the entertainment industry, the entertainment contracts, and the advantages of having an arbitration clause in these agreements.

There is supposed to be a trend toward including mediation as the first step in the dispute resolution provision of contracts. I find this is not the case. In my experience as a full-time neutral, many lawyers fail to discuss the benefits of mediation with their clients unless obligated to do so by a rule or a statute, or when a court is about to send the case to a court-appointed mediator.

IP licensors and licensees tend to shy away from using an arbitration clause because of the erroneous belief that arbitrators cannot issue preliminary remedies to preserve the status quo. This article sets the record straight on the arbitral power to issue preliminary injunctions and other interim remedies.

On Sept. 30, 2005, the Belgian Law on Mediation dated Feb. 21, 2005 came into force. This law adds part seven to the Belgian Judicial Code, headed “Mediation.” Part six of the Belgian Judicial Code deals with arbitration.
 

Although arbitration awards are meant to be final, some judicial review remains a vital part of the arbitration process. Yet the question still facing courts today is this: What is the proper scope of judicial review of arbitration awards? This article examines the unresolved tension between, on the one hand, the limited grounds for review in the Federal Arbitration Act, and on the other, common law grounds for review and expanded judicial review provisionsnegotiated by the parties themselves. The author concludes that it is undesirable to make arbitration more complicated and expensive by altering the statutory grounds of review.

Resolving the issues of infringement and validity in a patent infringement suit requires knowing what the claims mean. The grounds for setting aside an arbitrator’s “claim construction” are much narrower than the grounds for setting aside a trial court’s claim construction. Thus, arbitrating claim construction significantly reduces the risk that the parties will have to retry infringement and validity issues because of an erroneous claim construction.

Why carve-outs for creditor remedies against collateral do not make the arbitration clause one-sided. The answer is that they are essential to vindicate the borrower’s statutory rights.

In recent years, Latin America has witnessed an increased interest in arbitration. This article provides an overview of Brazil’s arbitration system and some of the controversies that it has provoked, with special attention to arbitration involving government entities.

Eastern Europe cannot be ignored when it comes to alternative dispute resolution, including mediation. Poland is one of the first EU Member States, the first in Eastern Europe, to enact detailed legislation on mediation in civil and commercial cases. This article discusses the provisions of the new Polish law in light of the requirements of the Proposed European Directive on Mediation.
 

This article explores the theory behind interest-based negotiation and its application to the labor-management relationship. It examines the critical factors for the successful implementation of interest-based negotiation, and then looks at whether these factors are present at Kaiser Permanente.

A new awareness of the benefits of foreign investment is moving China to accept broader international arbitration provisions with investors of its principal trading partners and to reform CIETAC rules to respond to foreign criticism.

Can mediation work to resolve medical malpractice cases? The question is not farfetched, as the pilot program discussed in this article shows. Mediation resolved a number of cases that went through the pilot program, but as author Amy London tells us, mediation is not a panacea because many systemic issuesneed to be addressed.

One year ago, on Aug. 29,2005, as Hurricane Katrina approached landfall, those who did not evacuate coastal Louisiana saw the levees give way to an unstoppable storm surge. On Sept. 24,2005, the region was hit again, this time by Hurricane Rita.

Mediation involves many key relationships beyond that of plaintiff and defendant that could present barriers to resolution. The author identifies some of these relationships,shows how they can create barriers to a successful mediation, and offers suggestions for overcoming these barriers.

Mediators work in an intense environment with parties who are often quite hostile to each other. Research shows that humor is a social lubricant that can facilitate communication, establish
leadership, and promote group cohesion. This article proposes that humor is a tool that mediators can use in appropriate mediation situations to diminish negative feelings, facilitate negotiations, and even achieve resolutions in a shorter period of time, eliminating the need for arbitration and reducing the strain on the parties’ resources. It also advocates including humor in mediation training curricula.

Steven Bennett, a practitioner who frequently writes about arbitration, remedies this imbalance. Here, he discusses how non-binding arbitration works and the advantages of this process. He distinguishes between private and court-referred processes and discusses how to design the process. He also addresses enforceability and the effect of a nonbinding award.

Steve Arbittier says it may be time for a new approach to resolving construction disputes. Thinking outside the box, he introduces a novel process he calls “conditional arbitration.”

The International Centre for Dispute Resolution (ICDR) has amended its International Arbitration Rules, effective May 1, 2006, to include a new rule providing for the appointment of an emergency arbitrator to take up requests for emergency relief that may be needed prior to the formation of the entire arbitration panel. Allowing a party to obtain such relief from an arbitrator provides an alternative to seeking interim relief through the courts. This article will discuss the reasons for the new rule and its principal features.

It is almost impossible to read a newspaper or watch the news today without seeing or hearing that someone prominent in politics, academia or entertainment has apologized for one kind of bad behavior or another in the hope of bringing a controversy involving that person to an end. (The authors refer to this as a “utilitarian apology.”) Indeed, the phenomenon of offering a utilitarian
apology is so common that one recent television news show asserted that it is “a sign of the times.” Yet it hardly seems that Americans are an apologetic type of people.

If you think successful businesspeople “wing it” when it comes to negotiation, think again. In truth, they prepare for every negotiation with the same rigor as a student preparing for an upcoming exam. Smart people realize effective negotiation depends on preparation. They take time to think through their own position and that of their counterpart so they can ultimately handle anything that may arise during the bargaining process.

Arbitration of large, complex conflicts, often with multople parties, requires good management to obtain the well-known time and costsaving advantages of the process. This article presents a collection of ideas thea uthor gathered from experienced arbitrators, advocates and users of arbitration that are geared to preserving those advantages and keeping arbitration informal and user-friendly.

Intellectual property cases, like most commercial disputes,start out in court but are usually resolved before trial. Given the high cost and protracted nature of IP battles, arbitration and mediation should be seriously considered as options to take control of a dispute when it arises. This article focuses on the key factors to evaluate when deciding whether to arbitrate or mediate an IP dispute.

Although mediated solutions to international commercial disputes require the parties to agree on settlement terms that are acceptable to both parties (a “win-win” solution”), practitioners must still work with clients who demand to win—even in mediation. Successful mediations—i.e., those in which all issues are resolved by a settlement agreement—depend on the integrity of the mediator. This article identifies five pragmatic considerations that could help practitioners select a mediator for an international mediation that could lead to a settlement more satisfactory to their clients.

Company lawyers are increasingly concerned about the cost of resolving complex transnational disputes. Law departments are measuring the cycle time of individual cases to ascertain the value of a growing number of conflict management strategies.

The National Labor Relations Board (NLRB) has a history of extending and then rescinding the right of unrepresented employees to have a co-worker present during an investigatory interview that could reasonably result in the imposition of discipline. In the latest ride on this merry-go-round of decisions, the NLRB again revoked this right. This decision comes at a time when alternative dispute resolution processes that mirror collective bargaining grievance procedures are being adopted by many non-union employers. The NLRB’s latest decision indicates that there are important differences between the rights of employees under union and non-union ADR programs.

Many types of transactions, but especially real estate and construction projects, are fraught with minefields, making the possibility of litigation almost inevitable. Volumes have been written on alternative approaches to  esolving disputes without having to cede control of the outcome to a judge or jury.

How issue conflicts arise and recent examples of how this type of conflict is being handled by courts, tribunals and international arbitral institutions. Recent efforts by the International Bar Association and established arbitral institutions to provide detailed guidance on an arbitrator’s duties of independence and impartiality are highly instructive with respect to an arbitrator’s relationships with the parties and their counsel, 1 but less so with respect to an arbitrator’s relationship with the subject matter of the dispute.

The NASD has proposed to change its rules to require arbitrators to produce an explained award. This article explains how the proposed rule change, if adopted,could affect the NASD dispute resolution system.

Roger Fisher, coauthorof the best-selling “Getting to Yes,” and Daniel Shapiro, both with the Harvard Negotiation Project, talk with the dispute Resolution Journal about conflict resolution and how to deal with emotions during negotiations.

The author analyzed the arbitration win rates for unions over a 10-year period, confirming his hypothesis that “unions are not as successful as employers in the labor arbitration process.” Then he sent a short survey questionnaire to 100 labor arbitrators asking them to suggest how unions can improve their success in labor arbitration.

Foreign parties who intend to enforce a “non-domestic” arbitral award in the United States must understand how U.S. law might apply. This article discusses how U.S. courts have applied the New York Convention and Chapter 2 of the Federal Arbitration Act.

Japan has changed its arbitration laws and rules to be more harmonious with international business standards,which could even lead to a JCAA arbitration in the United States. The author also provides a suggested three-tier ADR clause for transactions involving Japanese parties.

An experienced arbitrator offers guidance on how to organize documentary proof in orderto facilitate the work of the arbitrator and lead to a more efficient arbitration.

This article is based on a paper prepared for the Canadian Bar Association’s 5th Annual International Commercial Arbitration Conference: Natural Resources, Environment and Technology Disputes, held in Vancouver, British Columbia, in June 2005.

Find out about the emotional stages that most parties experience as they progress through the mediation process.

Every construction company owner has heard horror stories about pursuing project-related claims in court cases that last for years, sapping much-needed cash from projects. When subcontractors are able to specify alternative dispute resolution (ADR) procedures, subcontractors may be able to avoid some of the expense and other downsides of litigation. Not all ADR procedures are appropriate for all subcontractors, however. When evaluating dispute resolution options, subcontractors need to pay special attention to subcontract agreements.

How often do you have the opportunity to arbitrate and litigate a similar case so that you can compare the processes? That opportunity presented itself to Jeffrey Cruz who shares his views on how the two processes stacked up.

Since the success of international arbitration, whether the proceedings involve a commercial, investment and trade dispute, depends in large part on the quality and conduct of the arbitrators who hear the disputes. Thus, there is a great need for arbitrators to avoid ethical conflicts and disclose actual and potential conflicts of interest is of great importance In this article, the author examines the disclosure and qualification requirements for international arbitrators in the rules of the major international arbitration institutions, ethical codes, NAFTA, the WTO and rules promulgated
by the International Bar Association.

Lines mediators use to extend the impact of their opening state ment throughout the mediation.

Section 4 of the Federal Arbitration Act creates a trap for unwary drafters of arbitration clauses because it contains conflicting directions to district courts on the proper venue to hear motions to compel arbitration.

The sanctioning power of arbitrators when confronted by a party who is stonewalling document discovery is comparatively uncharted. This article discusses the different approaches courts have taken to potential sources of authority for this power. The result is a mess in need of cleanup by courts or ADR providers or both.

The 8th Circuit recently reinforced the principle that arbitrators can award punitive damages absent a clear and unequivocal waiver by the parties. The court affirmed an award of punitive damages even though the contract stated that any arbitration award “shall in no event include... punitive,exemplary or treble damages as to which borrower and lender expressly waive any right ... to the fullest extent permitted by law.” The court found that because the governing law did not permit waivers of punitive damages, and because the waiver was only “to the fullest extent permitted by law,” the language was unambiguous in permitting punitive damages.

People who are unfamiliar with arbitration and mediation often confuse the two processes. They may not know that arbitration results in a final and binding award that is enforceable in court, and subject to limited judicial review. They may not know that mediation is non-binding, and that the goal of mediation is for the parties to reach a voluntary agreement to settle with the assistance of a neutral third party mediator. In this article, the authors explain the basics of both processes for those who need an introduction to ADR.

This article is about using risk analysis to help analyze cases in mediation. The author provides a simple, stepby-step introduction to this sophisticated tool so that even the most math-phobic practitioner can follow it. It covers the fundamentals of probability, assigning values to judgments, dependent and independent events, the use of decision trees, sensitivity analysis, and how to use
these concepts in the legal and mediation context.

This article explores the advantages of allowing the parties to a commercial contract to agree to appellate arbitrator review in the case of an alleged error of law in order to address concerns about
the finality ofarbitration. The appellate process theauthor advocates would take place under the auspices of the American Arbitration Association under appellate procedures crafted by the parties, or under appellate procedures promulgated by other ADR providers.

The Florida Supreme Court just approved major amendments to the Florida rules that address the issue of multijurisdictional practice. The new rules, which take effect next year, allow unlimited practice of international arbitration in Florida by non-Florida attorneys, but limit practitioners of domestic arbitration to three appearances within a 365-day period.
 

The chair of an arbitration panel has a unique role. Two experienced arbitrators, who have chaired many panels and served together, outline their shared ideas about the chair’s special responsibilities and obligations and how to carry them out.

This article addresses three questions. Has investment treaty arbitration contributed to the practice of international commercial arbitration? If so, what has that contribution been? And what accounts for that contribution? My answer to the first question is yes. 

Effective Jan. 1, 2006, attorneys who are not admitted to the Florida Bar will become subject to new regulations if they wish to represent clients in Florida mediation proceedings. Separate rules apply to U.S. attorneys and attorneys from other countries.

Mediation is an accepted item on the menu of commercial dispute resolution in the United States and many other common law jurisdictions. In contrast, the state of development of ADR and mediation in continental Europe is uneven and many years behind the United States. In these circumstances, how useful is it for the English or US legal adviser to draft a multi-tiered dispute resolution clause, committing their client to a period of mediation with a party from a jurisdiction where mediation might barely be known? To what extent is mediation better avoided where the parties do not share the same cultural perceptions of mediation? This article offers some guidelines for drafting multi-tiered dispute resolution clauses in international contracts between parties from different legal traditions.

A look at how employers used pregnancy and marriage as grounds to terminate female employees and the developments in federal law—the Civil Rights Act of 1964, the Family Medical Leave Act, and the Americans with Disabilities Act—that led unions to negotiate protections for women in their collective bargaining agreements.

In addition to being well prepared,there is no more important step in arbitration than selecting the arbitrator. This article stresses the importance of identifying a well-qualified arbitrator who will
be responsive to the client’s side of the case. It also describes the “Enhanced Neutral Selection Process” that the American Arbitration Association recently launched, which is available in certain large, complex cases administered by the AAA.

In today’s global marketplace it is common for States to become involved in various commercial activities through State-owned enterprises. National practices regarding sovereign immunity are so
diverse that formulating rules of universal application is a very difficult task. That task is even more complex when Stateowned enterprises are involved in international business transactions. The purpose of this article is to highlight recent trends and issues in the area of sovereign immunity that are frequently encountered in international commercial arbitration.

We are experiencing an explosion in world trade. The World Trade Organization deals with trade problems that governments have with each other, using a dispute settlement process developed through negotiated agreement. This article explains the basics of this system.

In almost every respect, I have seen the arbitration process slowed to a crawl, much like matters that are litigated in court.

In 2004, the American Bar Association promulgated Standards for the Establishment and Operations of Ombuds Offices to clarify the authority of ombuds to deal with labor and employment law issues, and when communications by ombuds to their employers will be considered to give notice of  misconduct. Despite the ABA’s worthy intentions, the author explains why the ABA’s approach to these issues are on the wrong track.

Federal and state courts often urge parties to use alternative dispute resolution (ADR) in order “[t]o achieve more effective and efficient dispute resolution in a complex society."  ADR is favored since it is usually more economical with respect to time and cost.

This article discusses an arbitrator’s authority under federal and state law, and the American Arbitration Association Commercial Arbitration Rules, to award attorney fees for badfaith conduct during arbitration. Additionally, it examines the definition of bad faith and provides a justification for allowing arbitrators to make bad-faith awards.

Increasingly, commercial alternative dispute resolution (ADR) programs are being created  throughout the world to meet the needs of local industries. These ADR centers provide a model of
peaceful dispute resolution for other countries, particularly when they are located in a geographic area known for political conflict. As a result, ADR centers can have significance beyond the borders of
the region they are in by setting a model of peaceful resolution in both commercial and public arenas.

An assessment of a Fortune-500 company’s 10-year old ADR program, including a look at the costs saved through the program.

Adapted from the author’s presentation at the 24th annual meeting of the ICC Institute of World Business Law, in Paris on November 15, 2004, this article considers the issue of multiple arbitral proceedings relating to the same or similar issues in the context of investment arbitration. It examines how this problem has arisen and how it threatens the legal security of international arbitration. It also offers some practical approaches to resolving this problem.

Mr. Costello, a neutral on the American Arbitration Association panel, went to Cyprus for six months to introduce the “multi-door courthouse” to the judiciary in Northern and Southern Cyprus. Here are his colorful reports from that divided island in the Middle East, located a mere 40 miles from Turkey and 150 miles from Beirut.

Businesses are demanding fair rules and procedures to resolve international commercial disputes in a prompt and cost-effective manner. The author explains why international commercial arbitration fits that bill. His article looks at the advantages of international arbitration and highlights issues that should be addressed during the preliminary conference to maximize efficiency. He also touches on  arbitration in Canada and the rules applicable to domestic and international awards.
 

A look at how dictionaries, which do not always agree on the meaning of words, can affect the outcome when labor arbitrators use them to interpret contract language.

The author argues for greater use of med-arb using the same neutral in both phases of the process, citing its many advantages and ways to overcome its disadvantages. The author also provides suggested contract language and a sample stipulation and waiver agreement.

Classic mediation of construction disputes centers on the role of lawyers who serve as mediators and advocates. A new technique, called “Technical Mediation,” centers instead on the role of engineers, architects and other technical experts who solve underlying scientific and technical issues as a precursor to resolving financial and legal issues in classic mediation.

This article examines some of the impediments to using mediation to resolve international commercial disputes. It also suggests ways to overcome these impediments in order to obtain the benefits that mediation has to offer—flexibility, privacy, creative business-oriented solutions, speed, less cost and preservation of the business relationship.

Since 1996, arbitration and ADR generally seem to have attained a high level of acceptance in Brazil. Brazil has a modern Arbitration Act (Law No. 9.307) and has ratified (in July 2002) the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

Arbitration has been billed as the cost-effective, expeditious alternative to commercial litigation. It has, however, to a large extent, become a costly, dilatory and unpredictable melding of litigation and arbitration, primarily due to the parties’ representatives who are responsible for grafting the implements of litigation onto the much simpler system of arbitration. Regrettably, arbitrators are often their “aiders and abettors” when they permit attorneys to wrest control of the process. Such arbitrators are fearful that the courts, when reviewing their conduct, will vacate their awards. That fear is unfounded and this article will show you why that is so.

This article discusses recent amendments to Florida’s “notice” and “right-to-cure” statute which allow homeowners who wish to arbitrate construction defect disputes to discover documents from the opposing party prior to commencement of the proceeding. This is a significant development because parties engaged in arbitration are not entitled to discovery.

Author Bruce Meyerson argues that, for most employment disputes, the recent Arizona Supreme Court ruling that employment disputes are not covered by the state arbitration law will not apply due to preemption by the FAA.

This is an edited transcript of a roundtable discussion organized by the American Arbitration Association to share ideas about the current and potential use of arbitration and other forms of alternative dispute resolution to resolve intellectual property disputes. This roundtable is part of an ongoing dialogue among the AAA, neutrals on the AAA panel, and users of ADR services, in order to assist the AAA in serving the IP community. 

An important arbitration issue that has not received much attention in ADR or legal publications is that of the party who fails to advance required arbitration fees and arbitrator compensation. This article, which is an outgrowth of a roundtable discussion held by the American Arbitration Association, was written with two goals in mind. The first is to provide an overview of the nonpaying party problem and the drawbacks of the current options available to parties. This discussion includes commentary on recent case law related to the issue. The second goal is to propose a solution to the nonpaying party problem in businessto-business arbitration. The authors suggest a waiver clause in the agreement to arbitrate and they provide a sample clause for commercial parties to use. They discuss the law applicable to a waiver of arbitration, the relationship between §§ 3 and 4 of the Federal Arbitration Act, and due process requirements under federal and state arbitration laws. The authors hope to stimulate discussion of the issue and the proposed solution in the arbitration community.

Those involved in international arbitration often wonder “what happens after the case is completed?” Is there voluntary compliance with the award? Or is there a court battle over enforcement of the award? And if so, how often do the parties end up in court post-award? Since there is no unified system of tracking what happens after an arbitration award is issued, no one can be sure what the post-award landscape looks like. This article is the first attempt to gather data about this subject. It reports on the experience of a number of actual participants in international arbitration who responded to a survey sent by researchers at the Global Center for Dispute Resolution Research.

A majority of professional managers receive a university education at a college of business. In order to discover the extent to which U.S. business schools are positioning their graduates to use alternative dispute resolution processes to resolve disputes by offering a curriculum in ADR, we conducted a national survey of 50 U. S. business schools, one from each state. Our findings show a large gap between corporate utilization of ADR processes and what is being taught about ADR in business schools. Although the use of ADR is growing in the business community, a significant majority of business schools do not train their graduates in these processes. This needs to be remedied by adding ADR courses to the business curriculum and requiring all business students to take them.

This article is an outgrowth of the author’s graduate thesis in dispute resolution. With the support of the Association of General Contractors of Colorado, the author interviewed 20 commercial building contractors (including general contractors and subcontractors) along Colorado’s Front Range to ascertain their perspectives on conflict resolution in the construction industry.

In the world of international arbitration, where parties often have different nationalities and come from diverse legal traditions, a preliminary hearing letter can go a long way toward achieving
a common understanding of the dispute. Akin to ICC “Terms of Reference,” this letter requires early identification of uncontested facts and the issues to be resolved. In so doing, it creates a
common language for the arbitral process so that the parties’ expectations can be met.

Arbitration,love it or hate it, it’s here to stay. The real question for any business is whether arbitration can be used intelligently, as part of a well-considered dispute resolution program. The author offers an outline of how to construct such a program.
 

Intellectual property, particularly the field of patent licensing, is rife with the potential for disputes. Litigation in this area has led to some of the most intractable and expensive court cases, some of which have lasted for 10 years or more. It is difficult to see any advantage to litigating these disputes. Instead, the author urges patent owners to seek faster and more economical means of enforcing their patent licenses. An experienced IP practitioner, he argues that arbitration is ideal, since it offers the parties a private process, a quicker and less costly resolution, and the ability to select experienced experts as arbitrators to resolve these disputes.

Why would an organization conduct an investigation? Most of us would respond, “To find out the truth.” But the “truth” is rarely self-evident. What an investigation can do is fact finding. Unfortunately, there is little guidance available on how to conduct a thorough, fair, non-criminal investigation. The author suggests some guidelines that can serve as the basis for a discussion within the dispute resolution community of what we should expect from a competently conducted investigation.

Klaus Reichert discusses the cornerstone of mediation—confidentiality—which is essential for the process to have any value. He not only explains its importance, he suggests practical steps parties can take to secure confidentiality for their own mediation communications. The author also comments on the provisions of the new EU Directive on ADR and its significance for the future of the process.

Let's face it. Anyone involved with arbitration has either engaged in or seen another party use delaying tactics to stall the regular flow of arbitration. Such tactics are almost universally frowned upon by arbitrators and attorneys, except that there is no rule prohibiting their use when it would serve the interest of a party who can afford to delay. This article analyzes the most common delaying tactics, their timing and efficient management tools arbitrators can use to minimize their impact on the process.

Since the mid-1980s, I have watched China undergo a tremendous transformation. I remember Pudong, which I first visited in 1988, as not much more than an endless stretch of rice paddies located on the far side of the Bund in old Shanghai. Foreign companies were then just beginning to explore the prospects of establishing Chinese-based manufacturing operations. Over the last two decades, unprecedented levels of foreign direct investment have flowed into China, reaching as far as Central China and changing the face of older industrial cities like Wuhan.

Partnering is a valuable conflict management strategy for reconciling diverse objectives and meshing multi-party organizational cultures in complex public works projects in the United States. Abroad—especially in the volatile Middle East—there are even greater challenges as owners, contractors, local governmental authorities and other stakeholders are faced with cultural differences, escalating conflict and extraordinary risks. In the midst of the turmoil, however, there are reassuring examples of how multinational project management teams, committed to partnering, have used the partnering process to overcome obstacles and deliver successful projects.

The ways in which the worlds of European law and arbitration coincide remains a fascinating issue. Instead of extensively outlining the general principles of this subtle interaction, this article mainly focuses on the balance between party autonomy, arbitrator's authority and European public policy as looked at from the concrete perspective of one EU-member state, notably Belgium. The author also reveals how the European consumer policy clearly and directly led to the realization of bodies for consumer arbitration in Belgium that live up to a high standard of efficiency and fairness.

In 1980, four districts of the United Mine Workers of America and four coal companies in those districts agreed to participate in a grievance mediation experiment. Since then, unions and employers in other industries have used grievance mediation. It makes sense that having repeated experiences with grievance mediation could have long-term effects on the labor-management relationship. But what are they? Has grievance mediation enhanced the ability of grievants and employers to resolve grievances on their own, without the need of a mediator? Has it improved the labor-management relationship overall? If so,why has grievance mediation survived in some settings and perished in others? To answer these questions,we analyzed empirical data collected over the past 20 years, and interviewed both union and management representatives in order to obtain their views.The results of this study, which are set forth below, justify cautious optimism about the capacity of grievance mediation to achieve long-term benefits for labor and management.

Whatever the monetary benefits of collective bargaining, be they significant or insignificant, arguably the most important benefit of joint decision making has remained unchanged through good and bad economic times alike. Protection from arbitrary and capricious discipline has remained the rock-solid foundation upon which all other benefits have been based. Recently, however, a crack has developed in that foundation. In order to avoid application of the “just cause” standard for disciplinary action (including termination), arbitrators have been increasingly asked to decide discipline cases based on other contractual provisions, such as the seniority clause in the collective bargaining agreement. This article explores this “end run” around just cause and why arbitrators should resist it.

Although the law has been settled for some time that antitrust claims may be arbitrated, some still think that such claims are either unsuited or may not qualify for arbitration at all. But a recent decision by the 5th Circuit, in its recognition of the arbitrator’s expertise in antitrust matters, should erase this notion.

This article examines participant satisfaction with the National Labor Relations Board’s Unfair Labor Practice (ULP) Settlement Program, which was instituted in order to speed up the resolution of ULP disputes between unions and employers. Under this program an NLRB judge, who is not the trial judge, facilitates settlement conferences involving employers and labor organizations that are parties to a ULP dispute. The authors’ survey found that Individuals who participated in the ULP Settlement Program held generally positive views about that experience. Based on their findings, the authors conclude that the program seems successful on all evaluative dimensions, and could be expected to have beneficial results if expanded to other types of disputes.

Between 1998 and 2052, an estimated $41 trillion of wealth will be transferred in the United States as the baby-boomer generation ages and dies. Even after subtracting $17 trillion for estate taxes, charitable bequests, and estate settlement expenses, baby-boomers will transfer nearly $25 trillion to younger generations. Some of this wealth will be transferred amicably, according to predictable and well-crafted estate plans. Other wealth transfers, however, will be contrary to the expectations of the baby-boomer’s children and grandchildren, breeding conflict and generating trust and estate litigation.

In the aftermath of the presidential election debacle in November 2000, President Bush signed the first significant federal legislation in American history investing in the election administration process. As a result, millions of Americans going to the polls in November 2004 are likely to encounter new voting technology. Almost 30% of the electorate will use touch-screen voting systems. However, recent concerns have been raised about the security and reliability of these systems. With the presidential election just months away, this article addresses several of these concerns, since they may change the landscape of election disputes in 2004 and beyond.

A top ranking legal officer at a U.S. corporation shares his view that American business has to adopt a disputeavoidance-and-resolution philosophy and ADR processes in order to remain competitive and keep the focus on business. He also proposes ways to implement and optimize the benefits of ADR.

The reinsurance industry uses non-neutral, party-appointed arbitrators in reinsurance disputes. The authors discuss this practice and suggest how to improve the process.

The subject of this address is “culture” and its impact on international commercial arbitration. We lawyers have often invoked “cultural differences” to mean a clash of legal processes—such as the different procedures used in civil and common law countries. More recently, “cultural differences” have been invoked by both civil and common-law practitioners to criticize—with some justification— he use by U.S. attorneys of litigation-style procedures in the arbitration forum that expand the time and costs of the arbitration process.

In a new book entitled Mediation Representation: Advocating in a Problem-Solving Process (NITA 2004), from which this article is adapted, Hal Abramson developed a practical, mediation-representation formula for attorneys advocating in mediation as a problem-solving process. Among other things, the formula includes how to satisfy the client’s interests and overcome impediments to settlement, and knowing how, during key junctures in the mediation, to enlist the assistance of the mediator while negotiating with the other side.

This article analyzes the conflicting court interpretations of § 7 of the Federal Arbitration Act on the question of the arbitrator’s power to order third-party discovery. The author says the FAA should be interpreted to give arbitrators such power, a view he contends is both consistent with the Supreme Court’s interpretation of the FAA and essential to modern arbitration practice.

This article examines how arbitrators have viewed child-care concerns in determining whether employers are justified in disciplining an employee for failing to report to work, being late, refusing to work overtime, or leaving work early. It is based on discipline cases in which arbitrators used the “just cause” analysis to make their decisions. This review shows how arbitrators attempt to reconcile the competing demands of work and family confronting the American worker.

Our skills as arbitrators improve with every arbitration we hear. Each case brings unique situations, unusual requests for relief, scheduling problems, different approaches to the presentation of evidence,and new award-writing challenges. We learn from the process, from the parties in each case, and from our fellow arbitrators. What follows are our top 30 tips, which you cannot find in any arbitration rules, since they are gleaned from actual cases we have heard and those our colleagues have told us about. We thought other arbitrators might find them worth adopting, or adapting, in future arbitrations.

The interplay between arbitration and bankruptcy law when an intellectual property licensee has a dispute with a licensor that has filed or is about to file a bankruptcy petition.

A key issue for business managers and executives is to decide on the process for dealing with disputes of various kinds, particularly those arising out of business transactions, such as those with suppliers, customers, partners, licensees, and others. There are many factors to consider in deciding whether the court or the arbitration hearing is the best place to resolve these disputes. This article discusses the relevant factors and suggests how they could affect a businessperson’s decision.

This is an edited transcript of a candid roundtable discussion, the purpose of which was to identify the best ways to manage the large, complex case and suggest ways in which the AAA can facilitate its administration. The roundtable is part of an ongoing dialogue between the AAA, neutrals on the AAA panel, and users of AAA services and their counsel to generate ideas that will improve the way the arbitration process is perceived and how it actually works.

Every day physicians, nurses, other hospital staff, patients and family members struggle to reconcile differing visions, conflicting values and changing expectations as they make difficult and complex choices about whether and how aggressively to treat seriously ill patients.

Often disputes arise. Traditionally hospitals have turned to bioethics committees and consultants to resolve these disputes. Below is an excerpt from a new book, Bioethics Mediation: A Guide to Shaping Shared Solutions (New York: United Hospital Fund, 2004), in which authors Nancy Neveloff Dubler and Carol B. Liebman argue that mediation should be the process of choice for solving these dilemmas.

Privatized companies in Latin America, particularly utility and energy companies in Brazil and Argentina, have attracted considerable foreign direct investment. To encourage such investment, many developing countries have adopted a legal framework that complies with the standards demanded by capital-exporting States. These standards include the provision of a private right of action for investors against host States through international arbitration.

In an uncertain economy, the federal government can be a reliable business partner and source of revenue for ADR service organizations. Federal agencies contract for dispute resolution and facilitation services for many purposes, such as to develop regulations, settle complaints filed with the Equal Employment Opportunity Commission and other federal workplace grievances, resolve conflicts over federal water rights or other issues, help other nations develop a civil infrastructure, and train staff in ADR processes and facilitation techniques. There is strong demand for firms with expertise in ADR, conflict avoidance and consensus building.

The teaching of alternative dispute resolution as a discipline is flourishing in law schools. The 2003 Directory of Law School Dispute Resolution Courses and Programs, published by the American Bar Association’s Section of Dispute Resolution, lists just under 900 courses at nearly 200 law schools.

Over 40 of these had an ADR clinic of one kind or another.2 Some law schools have institutes that also provide training in dispute resolution theory and skills to lawyers and other professionals; some offer certificate programs, advanced degrees and CLE (continuing legal education) credit.

The debate over “evaluative” versus “facilitative” mediation is now largely between attorney-ediators and mediators who are not attorneys. Those on both sides of this divide are becoming ever more frustrated with the divisive labeling. Leonard Riskin tried to help resolve the issue with his well-known “grid for the perplexed.” The grid describes four general ways that mediation is being done.

Riskin’s intention was to “communicate with some clarity about what can, does, and should happen in a mediation,” and enhance decision-making about the selection of mediators.2 But instead of creating clarity, the grid, in my view, has led to even greater confusion. The problem is that it provides no guidance as to how mediation could or should be done, or how it would be done by any particular mediator. Therefore, it provides little help with decision making about the selection of a mediator. Nevertheless, and this is most troubling, the grid has been widely used to support and legitimize several questionable forms of mediation practice.

Should we take at face value the criticism that mediation cannot deal fairly with the parties when they have significantly different amounts of power? The author says “no,” finding many reasons to disagree with the critics’ underlying assumptions.

This article suggests using represented negotiations to resolve issues arising in a business divorce, such as the breakup of a medical partnership or a Family-Owned Business. The author argues that negotiating the split-up has advantages over going to court.

In this article, the authors analyze some of the things that can go wrong in a regulatory negotiation. After completing a reg-neg with the Center for Medicaid Services, the authors candidly discuss aspects of the negotiations that they might have changed if they could do it all over again. The lessons should be considered in future reg-negs.

Visioning has become a popular technique to help the parties to a mediation create shared objectives. This article shows how mediators can use coaching skills to take advantage of this technique in reaching desired outcomes in mediation.

There is little uniformity in the courts as to when an arbitration clearly and unmistakably calls for the arbitrator to determine the existence of an arbitration agreement. In this situation, litigants cannot predict whether their arbitration agreement will be honored. Courts should find a proper balance to avoid usurping the arbitrability decision themselves. This article suggests a balanced approach that courts could take that preserves the arbitrator’s right to make jurisdictional determinations. The goal is to keep the courts out of decisions that properly belong to the arbitrator and at the same time keep the parties out of arbitration on issues that they intended the court to decide.

Article discusses how arbitrators, parties and counsel can Contribute to the fairness and efficiency of the international Arbitration process in which they are involved.

Many articles have examined ambiguous language in arbitration agreements but few discuss how ambiguities come about. In this article, the author discusses the sources of such language to assist labor arbitrators in identifying and interpreting such language.

The enactment of an arbitration bill is expected shortly in Chile based on the United Nations Commission on International Trade Law Model Law for International Commercial Arbitration.1 This enactment should give a significant boost to international commercial arbitration in Latin America. This article discusses Chile’s existing arbitration regime, the circumstances prompting its latest arbitration initiative, and the proposed new arbitration law.

Avoiding disputes on construction projects and other long-term ventures can add significantly to the bottom line. The authors explain how their eightstep approach to partnering can help create the conditions to reduce or avoid disputes. A key feature of their approach involves the use of a Web-enabled information sharing system.

In many arbitration hearings there are pivotal moments both “sparks of genius” and “fatal errors”—that can affect the outcome of the case or damage future relations between the employer, the union and the employees it represents. These moments generally are not the result of spontaneous brilliance or sudden bad judgment. Rather, the winning “spark of genius” is most often the result of the advocate’s careful preparation and planning begun long before the hearing, while the fatal error is usually due to the advocate’s lack of planning or a misunderstanding of the role labor arbitration plays in our system of industrial governance. Here we share our observations of good and bad advocacy.

Organizational risk management has become the number one topic at business conference after business conference, and much of the discussion has focused on rapidly changing legal exposure and how best to cope with it.

The burden of civil litigation in the United States is staggering—estimates run between $200-$300 billion annually, and no business of any size is immune. Typically, when legal exposure is discussed, the conversation takes one of two directions: litigation avoidance or how best to resolve disputes when they arise.

This article discusses the issues that can arise when the employer disciplines or discharges an employee for what the employer considers to be inappropriate use of its computer system to send e-mail or browse the Internet. It examines recent arbitration and court decisions and describes how federal and state laws apply in this sensitive area of law.

An eBay seller just gypped you. You bid $500 on a 19th century teacup with a gold leaf rim. The seller, an antique dealer in Italy, claimed it was in “mint condition” and showed a perfect-looking specimen in a photo on the eBay site. But the cup was damaged. It had a chip and a faded edge and it definitely was not worth the 820,000 lire bid price. What recourse do you have? You could sue, but to do that you would have to go to Italy, since the seller does not do business in your state.

That’s not practical or affordable. Fortunately, eBay uses an online dispute resolution (ODR) provider (Square Trade) to help its customers resolve disputes with sellers. This means that you can try to negotiate or mediate a resolution of the dispute online.

The proliferation of direct foreign investments in developing countries and the increasing number of bilateral investment treaties (BITs) have resulted in the phenomenon called investor-State arbitrations brought by foreign investors against host States. As a result, States that are parties to BITs have had to defend government actions and policies in arbitration proceedings around the world. The BIT arbitration trend, which began in the 1990s, is particularly evident in Latin America, where political and civil unrest, as well as economic crises, have left many foreign investors with BIT claims.

Spain’s entry into the European Union in 1986, its rapid economic expansion and liberalization of trade have enabled it to actively participate in the globalization of commerce and communications. Spain has sharply increased its foreign direct investments, particularly in Latin America, where it has become the largest investor after the United States. Spain also has entered into numerous bilateral investment treaties (especially with Latin-American nations), which provide for the arbitration of investment disputes.

The revised Code of Ethics for Arbitrators in Commercial Disputes brings the 1977 Code more in line with modern practice. This article is adapted from the Report to the House of Delegates of the American Bar Association recommending adoption of revisions to the Code.

The author addresses the considerations involved in presenting claims for damages based on wrongful termination or abandonment prior to completion of a project. It introduces owner and contractor “damages accounting forms” specially designed to process damages claims where a replacement contractor has been hired to complete the work.