May 16, 2016

Latest New York Times article on arbitration - What are your thoughts?

What are your thoughts/comments on the latest New York Times article on arbitration? Please see the following link:

http://www.nytimes.com/2016/05/15/business/dealbook/start-ups-embrace-arbitration-to-settle-workplace-disputes.html?_r=0

Kindly provide your comments/thoughts below.

May 10, 2016

Early bird registration is now open for the 2016 ACR-GNY Annual Conference, set to take place on June 16, 2016 at Cardozo Law School

The full-day conference, now in its 15th year, will bring over 200 conflict resolution professionals together to network and benefit from panels and workshops on current topics impacting the field of dispute resolution from local community mediation to international peacekeeping and from restorative justice initiatives to commercial ADR practice, and much more.

2016 Conference Highlights Include:

• Awards Luncheon, featuring Keynote Speaker Brian Lehrer of WNYC interviewing Hon. Shira Scheindlin (Ret.) of the SDNY

• Achievement Award Honoree - Center for Court Innovation

• Achievement Award Honoree - John Kiernan, Partner, Debevoise & Plimpton; Chairman of the Board of Directors, The International Institute for Conflict Prevention & Resolution (CPR); Incoming President, New York City Bar

• Cocktail Reception Speaker - Susan Herman, NYPD Deputy Commissioner of Community Policing

• Pre-Conference Cocktail Reception at JAMS NY on June 15

• 16 Concurrent Panel Sessions and Workshops + Up to 6.5 hours of CLE, including 1.5 hours of ethics

Please visit the conference web site for more details, including panel session listings, biographies and registration information. Early bird rates are available through May 23 - and you can actually save by becoming an ACR-GNY member.

Please contact co-chairs Melissa Appleton, Todd Drucker and Justin Strock with any questions: todd.drucker@acrgny.org.

Chill Out: the CFPB can Bar Class Action Waivers if it wants to

By George Friedman

https://www.arbresolutions.com/chill-cfpb-can-bar-class-action-waivers-wants/

George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA's Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors of the Securities Arbitration Commentator. He is also a member of the AAA's national roster of arbitrators. He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional.

Deflategate: A Victory for Arbitration

By Alexander Bachuwa, Esq.

Did Tom Brady, quarterback for the New England Patriots, cheat? Should someone besides Roger Goodell, Commissioner of the NFL, have acted as the arbitrator for Brady's appeal? Despite the media's fixation with these questions, they are not issues for the courts. The agreement between the NFL and the players to arbitrate such disputes effectively ended this debate long before the sports world ever knew the appropriate PSI for a football.

The Deflategate saga began on January 18th, 2015 when the New England Patriots defeated the Indianapolis Colts in the AFC Championship Game. The following day the NFL began an investigation amid allegations the footballs used in the game were underinflated. On May 6th, the Wells Report was released which found that it was "more probable than not" that Brady violated NFL rules. On May 11th, the NFL suspended Brady for four games. On May 12th, Brady contested the suspension, which was followed by an appeals hearing on June 23rd, where Commissioner Goodell presided as the arbitrator. On July 28th, the suspension was affirmed by the NFL. On September 3rd, the US District Court for the Southern District of New York overturned the arbitral award. Finally, on April 26th, 2016 the United States Court of Appeals for the Second Circuit reversed the District Court and ruled in favor of the NFL.

Did Brady cheat? The answer to this question depends on whom you ask. Some Patriot fans believe it is a NFL led conspiracy against their team and their beloved Tom Brady. Some former NFL quarterbacks have unequivocally stated there is no way that the footballs could have been so underinflated but for Brady's orders. Despite the controversy, Brady's guilt or innocence was not the issue before the appellate court. While many had hoped the court would reexamine the facts of the case, the US Court of Appeals for the Second Circuit properly confined their assessment to issues of procedure writing, "Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs . . . Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act."

Should Goodell have decided the outcome of Brady's appeal? The answer to this question is yes. Goodell, acting in the role of NFL Commissioner, is empowered to hand out player suspensions as he sees fit. Goodell, through the collective bargaining agreement, is also granted the authority to serve as arbitrator when disciplinary sanctions are appealed. On its face, this arrangement does not comport with principles of fundamental fairness. Regardless of the optics, this was the agreement of two competent contracting parties: the NFL and the players. The Appellate Court wrote, "The players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory."

Should the arbitral award be respected? The answer to this question is a resounding yes. Arbitration was the dispute resolution mechanism agreed to between the NFL and the players. The outcome of the arbitration should have been the end of the process. But unsatisfied with the outcome, Brady moved to vacate the award through the courts. Brady's decision to contest the award proved to be a waste of time, money, and resources because the findings of an arbitrator are final and binding. The Appellate Court stated, "this case is not an exceptional one that warrants vacatur. Our review of the record yields the firm conclusion that the Commissioner properly exercised his broad discretion to resolve an intramural controversy between the League and a player."

For all its theatrics, Deflategate was nothing more than a simple arbitration proceeding where two parties were bound by the terms of their agreement. Regardless if Brady cheated, if Goodell should have recused himself from the process, the appellate court's ruling is a marked victory for the finality of arbitration, a headline that should not go unnoticed.

Alexander Bachuwa, Esq. of Bachuwa Law has extensive international experience working abroad in Asia and Europe, focusing on alternative dispute resolution and sports management. He has an MBA in Global Finance from Thunderbird School of Global Management, a JD from Arizona State University, and a BA in economics from University of Michigan. Alexander is licensed to practice in New York, Arizona, is a Foreign Registered Attorney in Mongolia, and a FIBA licensed agent. He has also been admitted to all New York and Arizona federal courts. Alexander is conversational in Arabic, Spanish, and Mandarin. Contact Alexander at nomadresolutions.com or globallsportsmgmt.com

AAA-ICDR Foundation, Inc. Issues Seven Grants for Inaugural Funding Cycle

The AAA-ICDR Foundation funds seven grants for its inaugural funding cycle. The Foundation sent out a press release in October 2015 announcing its inaugural round of grant solicitations. In response, the Foundation received 75 Initial Descriptions of Grant Requests. The Foundation, led by its Grants Committee, after a careful review of all of the submissions and the presentation of full grant proposals, approved the following seven grants totaling approximately $150,000 in funding:

• University of California Hastings College of the Law - 2016 Summer International Court ADR Institute: $25,000 to fund five-day training program in court-connected alternative dispute resolution design for non-US lawyers, judges and court professionals. www.uchastings.edu

• Straus Institute for Dispute Resolution Pepperdine University School of Law - Straus Institute Annual Global Summit on Conflict Management, September 2016: $15,000 to supplement the investment of the Straus Institute in supporting the convening of working groups and planners in advance of a summit that will bring together individuals and organizations from all over the world to discuss common issues and concerns associated with complex dispute resolution processes. law.pepperdine.edu/straus

• Prison of Peace 2016 Valley State Prison Mediation Training Program: $25,000 to fund a 40-hour Mediation workshop for 30 - 50 inmates. www.prisonofpeace.org

• Minnesota State Office for Collaboration and Dispute Resolution and Dispute Resolution Institute at Mitchell Hamline University School of Law 2016 Talk with Purpose: Using Dispute Resolution to Engage Communities and Foster Relationships for Constructive Change: $24,998 for OCDR/DRI to conduct a transformative project to produce qualitative change in the type of engagement currently taking place between dominant and non-dominant communities in Minnesota. mn.gov/admin/bms/ocdr

• Mediators Beyond Borders International - Women in Peacebuilding: Enhancing Skills and Practice Training: $25,500 for travel and training scholarships required to enable women community leaders from Cambodia, Indonesia, Nepal, the Philippines, Singapore, and Thailand to complete four days of advanced mediation and community leadership training in Djakarta, Indonesia, in the spring of 2016. http://mediatorsbeyondborders.org/

• Consensus Building Institute - Innovative ADR in Groundwater Sustainability to Manage California Drought: $25,000 for CBI to highlight and promote the use and the central role of ADR in connection with the implementation of California's Sustainable Groundwater Management Act. www.cbuilding.org

• American Bar Association Young Lawyers Division - Annual Law Student Arbitration Competition: $10,000 to defray operating expenses making the event more attractive and affordable for law schools participating in the next competition for the 2016-2017 school year as law schools have increasingly reduced discretionary funds available. http://www.americanbar.org/

The American Arbitration Association (AAA®) and its international division, the International Centre for Dispute Resolution (ICDR®), announced the establishment of the AAA-ICDR Foundation in May 2015. Since that time, the Foundation Board: James R. Jenkins, India Johnson, John J. Kerr, Jr., Carolyn Lamm, Francis McGovern, Bruce Meyerson, and Board Chair Edna Sussman along with AAA/ICDR support staff have been hard at work in both the areas of grant making and fundraising. The Board continues to establish protocols and procedures and is preparing for the next round of grant solicitations that will be announced in the near future.

The Foundation is a 501(c)(3) not-for-profit organization, and is able to solicit donations and provide grants to fund a range of worthy causes that promote the Foundation's wide-reaching mission, which is to support the use and improvement of dispute resolution processes in the USA and internationally, including:

• Fostering measures that reduce potential escalation, manage, and resolve conflicts.
• Expanding the use of dispute resolution processes tailored to the conflict.
• Supporting research, education and initiatives promoting high quality, efficient and fair dispute resolution.
• Increasing access to justice in and through alternative dispute resolution.
• Encouraging collaborative processes to resolve public conflicts.
• Sharing expertise across diverse groups and cultures.
• Partnering with others dedicated to advancing the Foundation's mission.

The AAA-ICDR Foundation will soon be announcing its second funding cycle. For more information on the AAA-ICDR Foundation, please visit www.AAAICDRFoundation.org.


May 9, 2016

Expert Reports - What are your thoughts?

With a highly technical case, how should an arbitrator handle expert reports from the parties that state completely different things? How should the reports be reconciled? Please provide your comments/thoughts below.

April 25, 2016

Responsibilities of the arbitrator in the event of a default. What are your thoughts?

What are the responsibilities of the arbitrator in the event of a default? How far should an arbitrator go to ensure due process and to protect the award? Please post your comments/thoughts below.

April 17, 2016

What does an arbitrator do when a contract is silent on arbitration costs? What are your thoughts?

When the contract is silent about costs, should the arbitrator treat attorneys' fees differently than other arbitration costs (e.g. arbitrator compensation, institutional fees)?

Please provide your comments/thoughts below.

April 12, 2016

The Mandatory Consumer Predispute Arbitration Agreement - Reportsof its Demise May have been Greatly Exaggerated

By AAA Arbitrator George Friedman

http://www.sacarbitration.com/blog/mandatory-consumer-predispute-arbitration-agreement-reports-demise-may-greatly-exaggerated/

George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA's Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors of the Securities Arbitration Commentator. He is also a member of the AAA's national roster of arbitrators. He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional.

April 10, 2016

Do depositions have a place in arbitration? What are your thoughts?

Do depositions have a place in arbitration? If the contract is silent with respect to depositions, should the arbitrator allow depositions over one party's objection? Please provide your comments/thoughts below?