November 2021 Archives

Defining Diversity - What are your thoughts?



Earlier this year at a New York Law School arbitration program, the audience of over 150 participants (arbitrators, advocates, and law students) was asked the following diversity question:

Do you view white women to be diverse?

The results:

• Yes 59%
• No 41%

Do the percentages surprise you? How would you respond to this survey question? If yes or no to the question, why?

Please provide your thoughts/comments below.


During a pending arbitration matter, is it acceptable for the arbitrator overseeing the matter to ask one of the parties or counsel to serve as a reference for acceptance into an organization or institution (e.g. bar association or ADR provider membership)? If yes, what type of disclosures should the arbitrator, party or counsel make? If no, when is it acceptable, if at all, for an arbitrator to make such a request from one of the parties or counsel to a previous arbitration matter that he/she oversaw (i.e. months, one year, etc.)?

Please provide your thoughts/comments below.

Encouraging Parties to Settle - What are your thoughts?



Do you believe that an arbitrator should regularly encourage the parties to think about settlement (or mediation) at various times throughout the course of an arbitration proceeding, or should they stay away from any discussion of settlement, after the preliminary hearing, and simply recognize that the parties are looking for a final determination from the arbitrator? If an institution is involved, should they be the one encouraging settlement (or mediation) rather than the arbitrator?

Please provide your thoughts and comments below.

Motion for Default - What are your thoughts?



Claimant initiates an arbitration for breach of contract pursuant to a contract that calls for binding arbitration. Respondent files its responsive pleading denying allegations and laying out its defense. Shortly after, respondent lays off all staff, fires its lawyer, and shuts down all business options. At that point, it does not appear any further in the arbitration. The contract between the parties contained a clause outlining a mechanism for filing a Motion for Default if one of the parties fails to make an initial appearance or any time effectively withdraws its participation (expressly or impliedly) in the arbitral proceeding. The mechanism requires the motion to be accompanied by substantiation of efforts to serve the defaulting party, explain the defaulting party's withdrawal of participation, a summary of legal and factual arguments, and at least one sworn affidavit of a principal witness in support of the moving party's claims. The contract further states that "no hearing or other briefing shall be required" but the Arbitrator in reviewing the motion of default may request additional information in support of the motion. How does this mechanism square with R-31 of the AAA Commercial Rules that allows arbitration in the absence of a party, but states that "an award shall not be made solely on the default of a party." Would the documents submitted in the Motion for Default, as outlined in the parties' contract, satisfy Rule R-31's requirements for submission of evidence?

Please provide your thoughts/comments below.

Feliu Case Summaries - November 2021

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Please the following link to download the Feliu Case Summaries - November 2021: Case Summaries - Nov 2021 (1).pdf


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This page is an archive of entries from November 2021 listed from newest to oldest.

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