September 17, 2017

Naming the Neutral in Your Contract Clause - What are your thoughts?

If the parties want to memorialize a dispute resolution mechanism, how advisable is it to name a specific neutral to serve as the mediator or arbitrator in the dispute resolution clause? Would it make a difference if the document (like a Stipulated Protective Order) will eventually be filed in a public court proceeding?

Please provide your thoughts/comments below.

September 9, 2017

Answering Statement and Affirmative Defenses - What are your thoughts?

Under AAA Commercial Rule R-5(a), if a Respondent does not file an Answering Statement, it is deemed to have generally denied the claims. But in doing so, does the Respondent nonetheless have an obligation to apprise the Claimant of the affirmative defenses it intends to pursue? Conversely, if a Respondent does file an Answering Statement and interposes certain affirmative defenses, is the Respondent now limited to those articulated defenses, even though it had no obligation to file an Answering Statement in the first instance?

Please provide your thoughts/comments below.

September 3, 2017

Punitive Damages - What are your thoughts?

Can an arbitrator direct that [statutory] punitive damages be paid to a charity, instead of Claimant, since it is Respondent's "bad conduct" that is being punished, not any act of Claimant that merits monetary reward?

Please provide your comments/thoughts below.

August 26, 2017

Detailed Pleading - What are your thoughts?

If a Claimant chooses to file a detailed pleading instead of simply submitting a Demand Form, to what extent should the Claimant be held to any deficiencies in that pleading? For example, if the Claimant pleads certain factual averments but, even if taken as true, they do not rise to the level of a claim, is that an appropriate basis for an arbitrator to dismiss the claim upon the Respondent's motion?

Please provide your thoughts/comments below.

August 19, 2017

Arbitrators Receiving Evidence Before First Oral Hearing - What are your thoughts?

Should arbitrators receive evidence, such as expert reports, before the first oral hearing on the merits?

Please provide your thoughts/comments below.

August 15, 2017

NYSBA Dispute Resolution Section Fall Meeting

SAVE THE DATE - October 26, 2017, NYSBA Dispute Resolution Section Fall Meeting, Brave New World in Dispute Resolution, at New York Law School. Please see the following brochure for more information:

DR Program.pdf

To register, access the following link:http://www.nysba.org/DRS/

August 14, 2017

Emergency Measures - What are your thoughts?

Many arbitral institutions now incorporate emergency measures of protection into the rules. Is there a guiding practice when a party is better served filing for emergent relief in arbitral proceedings as against court? Where there is mutual party agreement, should an emergency arbitrator continue to serve on the case as part of the Tribunal?

Please provide your thoughts/comments below.

August 6, 2017

Review of Awards by ADR Institutions - What are your thoughts?

Some ADR institutions review/edit a Tribunal's award. To what extent, if any, should a Tribunal's award be reviewed and edited by an institution?

How does review/editing vary by institution and within institutions?

Please provide your thoughts/comments below.

July 30, 2017

Social Media and Arbitrators/Mediators - What are your thoughts?

Should arbitrators/mediators be active on social media?

If yes, consider also:

- Which social media platforms?

- Will social media involvement create potential conflicts?

- What should be disclosed when handling a case (i.e., friends, contacts, postings, etc.)? Suggest also any standard language for broad social media disclosure.

Please provide your thoughts/comments below.

July 22, 2017

Trial Time vs. Arbitration Time - What are your thoughts?

Please see the following link to a study on Trial Time v. Arbitration Time:

Study

What are your thoughts/comments on this study? Why are some still reluctant to arbitrate?

Please provide your thoughts/comments below.