June 23, 2016

Providers Immune from Liability for Acting in Their Official Capacities

By Gerald M. Levine, Esq.

Arbitrators and Providers Immune - GL.pdf

Gerald M. Levine, Esq.
Levine Samuel, LLP
800 Second Avenue,
3rd Floor
New York, NY 10017-4709
Direct. 212.596.0851
Fax: 212.382.0320
E-mail, gmlevine@researchtheworld.com

Website and Blogs, www.iplegalcorner.com
(Publishing, Contracts, Copyright, Trademark,
IP, Arbitration and Domain Name law)
Legal Corner Press, LLC, www.legalcornerpress.com
Treatise trademarks, domain names, & cybersquatting
Domain Name Arbitration (Legal Corner Press 2015)
Essays republished and Arbitrator and Mediator. America Arbitration Association, FINRA,
Mediation New York Supreme Court, Commercial Division; and
the United States District Court for the Southern District of New York

UNCITRAL's Working Group II Continues to Examine Whether to Adopt a Convention on the Enforcement of Mediation Settlements

The next session of the UNCITRAL Working Group II that will continue to consider whether there should be a convention to enforce commercial cross-border mediation settlements will be in Vienna, Austria the week of September 19, 2016. On September 21, there will be a free evening program when 2 panels will answer questions relating to settlement agreements resulting from mediation. Panel 1 will address enforcing settlement agreement: International vs. Domestic Mediation - Security vs. Flexibility.

The main questions will be: What are the characteristics of international mediation as opposed to domestic mediation? How are those characteristics relevant to the design of a cross-border enforcement instrument for mediated settlement agreements? Why is there a need for a specific instrument on cross-border enforcement of settlement agreements? How to reconcile the flexible nature of international mediation with formal requirements of enforcement procedure?

The second panel will be comprised of Users and Mediators. This panel offers an opportunity to pose pragmatic questions to distinguished practicing mediators and users on how mediation issues are handled in practice, including issues in relation to enforcement of settlement agreements as currently considered by UNCITRAL.

Anyone in Vienna at that time should find their way to the Austrian Federal Economic Chamber, Room 1 Wiedner Hauptstrasse 63, 1040 Vienna to be part of the program.

For more information, contact:

Deborah Masucci
Arbitrator and Mediator
Chair, International Mediation Institute
646-670-7224
dm@debmasucciadr.com
deborah.masucci@imimediation.org
www.debmasucciadr.com
www.imimediation.org


June 20, 2016

Issuing a separate opinion containing the reasoning - What are your thoughts?

When, if ever, should an arbitrator issue a standard award but with a separate opinion containing the reasoning? Please provide your thoughts/comments below.

June 13, 2016

Association for Conflict Resolution, Greater New York, 15th Annual Conference

The Association for Conflict Resolution, Greater New York invites you to join us this Thursday, June 16, at Cardozo Law School for our 15th Annual Conference.

2016 Conference Highlights Include:

• Keynote Speaker - Brian Lehrer of WNYC. Brian will interview Hon. Shira A. Scheindlin (Ret.) as a part of his Keynote

• 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, Collaborative 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

REGISTER HERE: http://acrgny.org/2016-Conference

Questions? Please don't hesitate to reach out to us at todd.drucker@acrgny.com or 212.607.2718. Please join us at this amazing event!

Melissa Appleton, Todd Drucker, Justin Strock
2016 ACR-GNY Annual Conference Co-Chairs

June 12, 2016

Arbitration Precedent - What are your thoughts?

What is the role of the arbitration community, if any, to develop common law? Federal and State Appeals Court judges acknowledge that many interesting business disputes are going to arbitration. At the same time, some judges bemoan this because of the impact on the development of precedent. What is to be done systemically to solve the precedent problem? It should be noted that that the American Arbitration Association currently publishes all of its labor and employment awards, redacted, unless one party opts out.

Please provide your thoughts/comments below.

June 6, 2016

Reasoned Award - What are your thoughts?

Where one party wants a reasoned award and the other party does not, does an arbitrator have an ethical and moral duty to provide a reasoned award? Please provide your thoughts/comments below.

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