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March 2016 Archives

March 4, 2016

Consumer Arbitration: Pre-Dispute Resolution Clauses and Class Action Waivers

Article by AAA Arbitrator Lisa Renee Pomerantz.

Consumer Arbitration.pdf

March 14, 2016

Motion for Reconsideration - What are your thoughts?

What are your thoughts about an ADR clause that allows any party to file a motion for reconsideration after the arbitrator delivers a written opinion setting forth findings of facts and conclusions of law with rationale? Compare/contrast against institutional appellate procedures.

Please provide your comments/thoughts below.

March 15, 2016

SILENCE IS NOT GOLDEN

By Mark J. Bunim, Esq.

The Four Seasons (a/k/a/ Jersey Boys) had a big hit with the song "Silence is Golden." While that verse sells records, it does not work in mediation.

In spite the fact that the parties have prepared extensively for Mediation Day, have sent the Mediator briefs and documents, have had pre-mediation telephone conference calls, (all of which are crucial and necessary) and have had teams of lawyers - both in-house and outside counsel appear at the mediation - most commercial/non-personal injury cases do not settle on day one. Even if the parties start at 8AM and go until the evening hours, disputes frequently need more time to resolve themselves. The reasons vary from case to case.

If the right business people, or decision makers are not present in the mediation room; demands and offers need to be taken "back to the store" to be examined further. The Mediator may have proposed a solution that neither side thought of prior to coming to the mediation and needs further thought. Sometimes there is a misunderstanding about one side's position or circumstances, and needs further analysis beyond the one day mediation.

Each of these situations is understandable and very common in complex cases. A good Mediator will give the parties a few days to consider each of their positions, and then begin a series of telephone calls with each side trying to move the process along. Separate in-person meetings with the Mediator and the business hierarchy may be extremely beneficial. Another day of mediation may be what is needed. However, one party's post mediation day "silence" is not beneficial; in fact it is counter-productive to getting to a resolution.

All too frequently, I find that one side or possibly both, will go into hibernation with regard to the dispute after the Mediation Day. There will be a non-response to the Mediator's inquiries for extended periods of time on the grounds that "the right business people are not available now" or that they have "many other things on their plate." This silence, or unwillingness to deal with the issues that have been mediated and the proposals that are on the table, can only build up animosity on the side that is fully participating in the process and is expecting an answer, even if that answer is "no."

Mediation is a process that develops its own energy and dynamic. It is like a train: after Mediation Day One, the train has left the station and needs to arrive at its destination. To be stalled on the tracks is not only bad for the process, but bad for perhaps any on-going or future business relationship of the parties. It can also result in getting a bad reputation for the "stalling party" in a particular industry. Who wants to do business with an entity that is disorganized and cannot reach a decision?

It is strongly recommended that once the first day of mediation is concluded, if an agreement is not reached and the process is being continued, that counsel push their clients to respond to the proposals that are on the table and make counter-proposals. It may takes weeks, or even months to get to a final resolution, but there should at least be weekly communication with the Mediator with a status update and firm target dates set for the next response or interaction. As long as there is an ongoing back and forth on a regular basis, counsel and the parties will feel like they are making progress and will become more involved in the thrust of getting to a resolution.

If the Mediator knows that there is an impasse, then there are many "mediation tools" that can be undertaken to spark the process and bring about a conclusion (for example, make a Mediator's proposal with a short time deadline). However no Mediator can do anything to help when one side is in "non-response" mode and shuts down. In fact the Mediator is then required to somehow come up with ways to keep the party that has responded promptly, encouraged and eager.

The enemy of getting to a productive end is always silence; do not let that happen to you.

Mark J. Bunim, a member of AAA's Panel of Commercial Mediators and AAA's Panel of Commercial Arbitrators and of NAM's (National Arbitration and Mediation's) Hearing Officer Panel. Mr. Bunim has been chosen as a "2013 Top Rated Lawyer in Insurance" by the American Lawyer/ New York Law Journal and is a member of the National Academy of Distinguished Neutrals (NADN) and can be reached at : bunim@caseclosure.com

March 20, 2016

Not following the arbitration agreement - What are your thoughts?

When parties have a detailed and specific arbitration agreement, under what circumstances, if any, can the arbitrator deviate from that agreement? Please post your thoughts/comments below.

March 22, 2016

A CRITIQUE OF THE 2014 INTERNATIONAL BAR ASSOCIATION GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL ARBITRATION

A CRITIQUE OF THE 2014 INTERNATIONAL BAR ASSOCIATION GUIDELINES ON CONFLICTS OF INTEREST IN INTERNATIONAL
ARBITRATION

By Mark R. Joelson
A CRITIQUE OF THE 2014 INTERNATIONAL BAR ASSOCIATION.pdf

March 26, 2016

FINRA's Dispute Resolution Unit Outlines its 2016 Goals and Plans

By AAA Arbitrator George H. Friedman

https://www.arbresolutions.com/dispute-resolution/

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.

March 28, 2016

Right to Challenge a Party Appointed Arbitrator - What are your thought?

Does a party have the right to challenge a party appointed arbitrator for conflicts? What should be the standards, if any, for removal? Are the standards different than those for challenging arbitrators appointed by an arbitral institution? Please provide your thoughts/comments below.

March 31, 2016

Mediation No Longer the Rodney Dangerfield of Dispute Resolution

Article by George H. Friedman

http://www.sacarbitration.com/blog/mediation-no-longer-rodney-dangerfield-dispute-resolution/

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.

About March 2016

This page contains all entries posted to Resolution Roundtable in March 2016. They are listed from oldest to newest.

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