Resolution Roundtable

What are your thoughts on pending state legislation banning the arbitration of sexual discrimination, sexual harassment, and/or sexual misconduct claims in the workplace? Will such legislation help ameliorate the "black eye" that mandatory arbitration has in the employment arena? Is such legislation pre-empted by the FAA? Do these statutes improperly elevate only these kinds of claims over other anti-discrimination or workplace protection claims?

Please provide your thoughts/comments below.

You are a panel member and a member of the Bar in good standing in a pending arbitration with the following facts. Subcontractor files a claim for contract balance due regarding the construction of a bridge which is heavily traveled on a regular basis. One of the panelists is a licensed professional engineer and states in caucus that having heard the evidence, in her professional opinion the bridge will collapse within the year. The other panel members are lawyers experienced in construction but neither have an engineering degree. The Panel reconvenes and raises the safety issue. Counsel for each of the parties respond that the safety issue is not before the Panel and that they initiated the arbitration process to preserve the confidentiality of the proceedings. What should the Panel do?

Please provide your thoughts/comments below.

What is your practice regarding the scheduling of periodic status conferences with the counsel in an arbitration proceeding? What circumstances warrant such periodic conferences, or do you schedule them as a matter of course?

Please provide your thoughts/comments below.

Confidentiality is a bedrock foundation of most ADR processes. But is that time-honored attribute contributing to (a) the lack of regard or disdain that certain segments of the American public appear to have towards mandatory arbitration in the employment and consumer fields; and (b) the lack of diversity in the selection of ADR neutrals? Let us know your thoughts.

Please provide your thoughts/comments below.

In a situation where an arbitrator (or tribunal) issues a partial final award, and there is a willful failure by one of the parties to comply with the award (e.g., a refusal by respondent to voluntarily pay the monetary amount to the claimant ordered by the arbitrator), may the arbitrator entertain a motion for sanctions by the claimant under AAA Commercial Rule R-58? Or is the arbitrator functus officio on that portion of the dispute on which she has entered a final award?

Please provide your thoughts/comments below.

What trends do you see on the horizon in the arbitration marketplace and what steps can counsel (in-house and outside), arbitrators, and providers undertake to best prepare for them?

Please provide your thoughts/comments below.

What trends do you see on the horizon in the mediation marketplace and what steps can counsel (in-house and outside), mediators, and providers undertake to best prepare for them?

Please provide your thoughts/comments below.

What are some of the practical differences in the manner in which an arbitration proceeding is conducted, and/or deliberations by the panel are handled, when one or more of the arbitrators on a panel are non-neutral (i.e., a Canon X arbitrator)?

Please provide your thoughts/comments below.

What, if anything, should an arbitrator do if evidence is obtained improperly (e.g., through use of a subpoena signed by an attorney in a case governed by the FAA), but the other party does not object to its use and admission at the evidentiary hearing? Assuming the foregoing conduct qualifies as misconduct under NY RPC 8.4, if the arbitrator is an attorney, does s/he have to report that misconduct under NY RPC 8.3?

Please provide your thoughts/comments below.

By Mansi Karol and Jeffrey T. Zaino

As part of the AAA-ICDR's continuing effort to expand diversity on the Panel of arbitrators and mediators, the AAA-ICDR collaborated with the Minority Corporate Counsel Association (MCCA) through sponsorship of the MCCA's annual meeting and presentation of an ADR program for its members. The AAA-ICDR also assisted with the conception of a new organization, the ADR Inclusion Network, which focuses on promoting diversity in the ADR community. Two AAA-ICDR staff are proud founding members of the ADR Inclusion Network.

The AAA-ICDR also continued to emphasize diversity in its recruitment of arbitrators and mediators. Executives across every division of the organization actively recruited women and minority candidates who met the criteria established for the AAA-ICDR's panels. As a result, in 2017, the AAA added 78 new women and minority candidates to its Roster. As part of its recruitment efforts, the AAA-ICDR continues to build coalitions and participate in events with national, minority, and local bar associations and law schools around the country in order to provide training and create opportunities for diverse practitioners. Among the initiatives launched in 2017 is a joint recruitment initiative with the National Association of Minority & Women Owned Law Firms (NAMWOLF) to recruit their members for inclusion on the AAA-ICDR's Roster. The AAA-ICDR also successfully partnered with the National Bar Association (NBA) to provide training and recruitment opportunities to its members, which resulted in several of its members being invited to apply to the AAA-ICDR's Roster. Another area of focus was on providing diverse lists of proposed arbitrators to parties on cases and prioritizing diversity in the selection of speakers for the AAA-ICDR's educational programs. Among the cases facilitated by the AAA-ICDR in 2017, 25% of them were managed by diverse panels.