October 2020 Archives

The Death, Disability or Disqualification of an Arbitrator

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By Michael Lampert and Peter Pettibone

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Appearing in Commercial Arbitration (July-December 2020)

ESTABLISHED AND PUBLISHED BY The Chamber of Commerce and Industry of the Russian Federation

To download here: Lampert_Pettibone_CA_2-2020.pdf

Med-Arb: What are your thoughts?

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There has been a lot said/written about the obvious problems with Med-Arb. However, what if all issues have been resolved through successful mediation sessions and only one remains and the parties want their mediator to rule on that issue as an arbitrator? Should the mediator agree to serve as their arbitrator? Should mediators have an absolute prohibition on serving as an arbitrator following his/her mediation session(s)? When should there be an exception and why?

Please provide your thoughts/comments below.

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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?

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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:
ABI.


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?

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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.

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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?

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