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A terrific article by Kyle-Beth Hilfer appearing in NYSBA Inside, a publication of NYSBA Corporate Counsel, Five Advertising and Marketing Law Trends To Take You Through 2020.

Please see the following link for the full article:

KyleBethHilfer_Inside_Summer2020112 (003).pdf

The Role of the Mediator - What are your thoughts?



The question is what claims a mediator can raise to one side and how does he/she get the information to make such a claim. Normally, the mediator has information in the mediation statements and/or the initial presentations. When the mediator engages individual caucuses, that information allows he/she to discuss risks with each side. In some cases, the mediator might even do some limited research to be able to offer some thoughts to each side.

What if an issue was only raised tangentially to the mediator and he/she is not able to raise it to the other side, as there is not enough information in order to discuss if it is a risk they should consider. There is a concern about raising it to the side that the issue could help, because in doing so, the mediator could be seen as putting his/her finger on the scales and telling them about a good claim/defense that they might not realize they have. On one hand, the mediator thinks he/she should keep quiet as it's not his/her job to help either side. On the other hand, the mediator is tempted to explore this issue since it will be helpful for both parties to discuss this, particularly as it could help lead the parties to a middle ground. What should the mediator do?

Please provide your thoughts/comments below.

Thank you to the American Bankruptcy Institute (ABI) Mediation Committee Listserv for this week's question. The question was posted this week on the Committee Listserv. To learn more about the ABI, see the following link:

By Paul Bennett Marrow, Mansi Karol, and Steven Kuyan

Marrow et al. - AI and Arbitration.pdf

Dispute Resolution Journal
October 2020, Volume 74, Number 4

Independent Research - What are your thoughts?


It is an axiom of arbitration practice not to do independent research.

While dispositive motions are pending, you read a New York Law Journal article (or other legal publication) that cites a recent case directly on point. Do you ask the parties to address it?

Please provide your thoughts/comments below.


ADR institutions have the authority to administratively appoint an arbitrator(s) should the parties not mutually agree on an arbitrator(s) after just one strike and rank list. Should the parties grant such significant authority to the institutions? How should parties overcome an impasse in the arbitrator(s) selection process and avoid administrative appointments?

Please provide your thoughts/comments below?

Virtual/Video Hearing Worst Practices - What are your thoughts?



Thousands of virtual/video ADR hearings have been taking place since the pandemic. What have you observed as being the worst practices by some counsel, parties, and neutrals during virtual/video hearings?

Please provide your thoughts/comments below.

Expanding Use of Video Conferencing - What are your thoughts?



What are your thoughts about using video conferencing (instead of telephone conferences) for preliminary hearings, status conferences, oral arguments of discovery and dispositive motions, and other events preceding the evidentiary hearing?

Please provide your thoughts/comments below.

Arbitrator Deposits - What are your thoughts?



What should an arbitrator do when a large amount of work is required early in a case and the parties are not making sufficient deposits?

How can an arbitrator protect herself/himself for non-payment? What are the best practices with respect to dealing with non-payment by a party or both parties?

Emergency Measures of Protection - What are your thoughts?



Under the AAA-ICDR Commercial Rules, either party can request Emergency Measures of Protection (R-38) and have an Emergency Arbitrator appointed. This is an automatic process regardless of the issue and level of emergency relief sought. Should the rule include a "good faith" standard for seeking emergency relief? If the emergency arbitrator deems the emergency relief to be frivolous and clearly sought to delay the process and increase costs, should the regular non-emergency arbitrator consider sanctions in addition to costs for the emergency proceeding?

Please provide your thoughts/comments below.


What ethical dilemmas do we face as we conduct virtual/video arbitrations and mediations? Are there issues unique in comparison to in-person proceedings? How should we address these ethical issues?

Please provide your thoughts and comments below.

Recent Comments

  • Kyle-Beth Hilfer: I agree it depends if you are taking a facilitative read more
  • Margarita Echevarria: I think it varies with your approach. If you maintain read more
  • Eli Uncyk : I agree with Judge Harris. In caucus, the party should read more
  • Judge Gerald Harris : A mediator promotes settlement by helping each side to assess read more
  • Nelson E. Timken: I actually had this happen in the peer mediation I read more
  • Edwin H. Stern: Arbitrators are frequently selected because of their expertise in,or knowledge read more
  • Kyle-Beth Hilfer: The hypothetical assumes the arbitrator does not go seeking out read more
  • charles shaffer: You don't consider facts that are not in the record. read more
  • Robert Barras: No, is the simple answer. You are adjudicating one case, read more
  • Micalyn S. Harris: Since it's not possible to "unknow" the additional information, conferring read more

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