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Updated: 1 hour 9 min ago

The “Global Pound Conference” — CORRECTION

Tue, 2015-05-19 16:05

The International Mediation Institute has been bouncing around an intriguing idea – a replication of the fabled 1976 Pound Conference, but on a global scale and an internet-enabled synchronous platform.  I’m unclear whether this event will actually come to fruition, and the IMI organizers, true to form, have already “Pounded” the event with acronyms such as GPC, LOC and COG — but the concept is so neat that we should certainly be aware of it and monitor its development.

CORRECTION:  IMI Board member Michael McIlwrath writes to say:

Peter, YBIWCTF! (You Betcha It Will Come To Fruition!)  Anchor funding is already in place, and we have more than the minimum number of cities expressing serious interest, and several have already committed.  The idea was initially 15 cities, but so many are already committing or expressing interest that our focus is shifting to ensuring all of the conferences will achieve high levels of quality and broad stakeholder participation.

Sorry, Michael.  Sorry, IMI.  Onwards and Upwards….

General Counsel’s Role in ADR and Transactional Decision-Making

Fri, 2015-05-15 15:20

The recent issue of The Business Lawyer, a publication of the ABA Business Law Section, addresses a topic of particular interest: “the hard choices that face a general counsel when weighing the pros and cons of whether and when a particular complex business dispute is better suited for litigation in the public courtroom or through a carefully constructed alternative dispute resolution process, including mediation and/or arbitration.”

The article, of interest on its face, gains authority by virtue of its authors:  former Delaware Supreme Court Chief Justice Norman Veasey and former Chancellor of the Delaware Court of Chancery Grover C. Brown.  It gains even more credibility because it reflects not merely the observations of these expert observers of business disputes, but also extensive interviews with 19 General Counsels or their principal in-house colleagues — including companies not often heard from on this topic, such as Walt Disney, Fluor, Oracle, Walgreens, Proctor & Gamble and General Dynamics.

The “variables” that must be considered in avoiding or managing contractual disputes include whether it will be foreign or domestic; the subject of the deal; the identity of the counterparty; the likely jurisdiction; the importance of confidentiality; and the need for subject-expert neutrals.  Moreover, these concerns must be weighed, and a decision made, at the drafting stage — well before there is a dispute — and negotiated with the counterparty who is the potential adversary.

The authors note that cross-border deals tend to involve international arbitration as the final stage of a stepped or tiered, process.  But many general counsel are leery of domestic arbitration, complaining of problems that, “when viewed in hindsight, could have been avoided” by controlling or customizing the arbitration process at the contract stage.  In addition to their own informal interviews, the authors focus on certain recent studies, including the CCA 2010 Protocols, the 2011 RAND Report, and the 2014 Stipanowich/Lamare article.  They conclude:

  •  A preference for mediation is almost universal;
  • Mediation provokes commercially rational thinking and decision making;
  • International arbitration is strongly preferred to litigation in foreign jurisdictions;
  • International arbitration has features that domestic arbitration does not, including restrictions on pre-hearing information exchange and proven experts in both the arbitral process and the subject matter of the dispute;
  • Confidentiality is highly valued;
  • Not all transactional lawyers perceive that they have the ability to negotiate arbitration structures that safeguard against the flaws they fear in the process
  • Dispute resolution provisions are too often addressed too late in the deal negotiations, either by attorneys who know the deal but are insufficiently familiar with dispute resolution processes, or (ironically) by attorneys familiar with ADR but insufficiently knowledgeable of the deal at hand.

Many of the postulates reported in the article are, gratifyingly, reflections of what ADR teachers and trainers have espoused for years, for instance that mediation “not only may avoid arbitration or litigation but also… tends to introduce rationality and right-sizing into the thinking of both sides of the dispute.”  And the list of concerns about domestic arbitration are also familiar, if less gratifyingly so: cost, delay, controlling discovery, time-consuming and expensive ancillary court proceedings in compelling arbitration or challenging/enforcing an arbitrator’s award.

The article concludes with a summary that is quite familiar: “mediation with a good mediator is ordinarily a low-risk/high-reward promising scenario; international arbitration is usually preferable to relegating a transnational dispute to be resolved in some foreign court systems; and domestic arbitration is where most pro-con issues arise.”  Some of us, however, continue to await the practical impact upon businesses of the lessons of this article and of the studies upon which it relies: The day when practitioners recognize that arbitration is not some feral animal living in a cave, ready to pounce on the unwary, but rather an agreed-upon process whose very existence and contours are a function of the parties’ own agreement.  And, taking it a step further, that agreeing upon a method to resolve problems and disagreements is not, fundamentally, a question of law, but of commercial value-preservation.

Delaware’s Rapid Arbitration Act

Thu, 2015-05-14 13:18

Its first attempt having been stricken by the Third Circuit, the Delaware General Assembly recently enacted the Delaware Rapid Arbitration Act that seems ideally suited to a broad range of business disputes, and is a welcome contribution to rational, reasonable and responsive arbitration law.

Among its features, the Act requires that the entire proceeding be completed within 120 days of the appointment of the arbitrator (upon pain of a reduction of the arbitrator’s fee) and limitations on judicial appeal both prior to and after issuance of an award.  It applies only to disputes in which at least one party is a business formed in Delaware, and specifically excludes from its provisions disputes involving consumers.

A threshold feature of the law is its delegation of questions of arbitrability to the arbitrator and away from the courts.  Parties agreeing to the Rapid Arbitration Act are deemed to have waived objection and consented to “the submission exclusively to an arbitrator of issues of substantive and procedural arbitrability,” as well as the arbitrator’s power and authority to determine the scope of his own authority and to grant appropriate relief.  Even more specifically, parties are deemed to have waived the right to seek to enjoin the arbitration; to remove any action to a federal court; to appeal any interim ruling of the arbitrator; or to challenge any final award, except pursuant to the provisions of the Act.

In the absence of party agreement, the Court of Chancery appoints the arbitrator, who must issue a final award within the time fixed by the parties or, if not so fixed, within 120 days of appointment.  No extension, even consensual, may exceed 60 additional days.   Irrespective of the location of hearings, the seat of any arbitration is the State of Delaware.  Challenges to the final award must be taken within 15 days of issuance directly to the Supreme Court of Delaware, which “may only vacate, modify, or correct the final award in conformity with the Federal Arbitration Act.”  Other appellate review may occur pursuant to agreement.  Unless objected to, an award is deemed confirmed by the Court of Chancery 5 days after the 15-day challenge period.

In AT&T v. Concepcion, the Supreme Court grafted on to the purposes of the Federal Arbitration Act not only the stated language that arbitration agreements be enforced, but also that the Act be interpreted to facilitate arbitrations as “informal, streamlined proceedings,” and struck down a California law that was applicable to contracts generally, but that, in the view of the Court, rendered arbitration cumbersome.  Delaware’s state law seems to be consistent with those objectives, and it would be curious to see whether it will be challenged as its predecessor was.

Mediating with an Unrepresented Party

Tue, 2015-04-21 21:16

Prof. Sharon Press joined Prof. Lela Love, Prof. Michael Colatrella and Prof. Ellen Waldman at the ABA Dispute Resolution Section Spring Meeting in Seattle for a discussion of a phenomenon raising highly-charged challenges for practitioners:  What are a mediator’s ethical duties to a party to a mediation who is unrepresented and, in at least some respects, disadvantaged in conducting legal negotiations with parties who have the benefit of counsel?  The speakers have personal experience mediating directly or through clinics in EEOC, landlord/tenant, small claims court, or other contexts with varying populations that include self-represented litigants.

Prof. Colatrella noted that litigants may be unaware of legal standards, rights, and remedies that are applicable to their claims, and conflate “fair” with “legal” in their pursuit of a resolution of a perceived wrong.  They may not understand what a court can or cannot award, or the procedural hurdles to judicial relief.  They may not understand the mediation process itself – how to prepare for it, the roles of the participants, or the risk/benefits of proposed offers.  They may be inexperienced and uninformed negotiators.  There may have language barriers in speaking, listening and reading, and may be financially unsophisticated or inept.

In such a context, how can mediators promote just results while fulfilling their duties of neutrality?  The broad definition of informed consent when an attorney counsels a client or a doctor serves a patient may not apply with an unrepresented claimant.  And informed consent to participate is different from consent to an outcome.  The first is a clear and attainable duty of the mediator.  The second may not be.  A mediator may have a duty to explain a proposed outcome, but not to counsel a party as to (for example) the rights they are waiving by settlement – even if the mediator acknowledges that the party is uninformed of those rights.  Implicated in this duty, were the mediator to assume it, is yet more advice as to the likelihood of the outcome were the claimant to assert those rights.  Prof. Colatrella finds this a step too far.  This assistance is detrimental to the other, represented, party.

Informed consent can be promoted without treading on partiality, he urged.  Investigating uncovered interests, providing information, directing parties to outside resources, and even providing an evaluation can be of assistance in prompting informed consent while staying within the confines of mediator neutrality.

Prof. Love suggested that an increase in pro se litigants may not be a “problem” but rather a reflection of the nature of disputes. It may be a good decision for them to choose not to be represented, and their status in mediation may be beneficial to them.  Why do we lawyers assume that an unrepresented party is burdened by not having information or guidance that a lawyer could provide?  And is the mediator the best, or the only, source of legal information for parties?

Mediation can help pro se litigants in many ways:  They are given the chance to tell their story to the other side and to hear the other side’s story.  They can learn the other side’s legal arguments.  With this information they can decide whether to pursue or settle the claim with more information than they had before the mediation took place.  All of these are attributable to the process, not the lawyer.

Mediators, then, can emphasize these beneficial aspects of mediation.  Mediators should explain the context and the process of the mediation and point out opportunities to learn though the process.  They can clarify their limitations with respect to offering legal advice.  Prof. Love says these are duties, not just opportunities.  While not pressuring parties to settle, a mediator can (and should) point out logical or legal errors, just to the border of offering legal advice.  If a party has no evidence to support her claim, she should be warned of the likely consequences. Prof. Love would go so far as to ask “What if you learned that your claim was barred by the statute of limitations?” but not go further and give the legal conclusion itself.  Where there is no settlement, the parties can go to court better aware of their options and what is expected of them.  Where they settle, they do so knowing they chose not to get legal advice first and that they chose to do so given more information than they had going into the process.

Prof. Waldman took a different view.  To her, pro se litigants simply do not have the information they need to make serious decisions, and the growth of pro se litigants is to be regretted.  Legal norms exist to protect vulnerable segments of society, and these are the very folks who come to court without the lawyers who can help them.  They are unaware of consumer protection, anti-discrimination and other protective statutes whose benefits they might seek.  A mediator should not simply stand by to watch an uninformed party enter into a settlement at variance with state usury law, for example. But what does a mediator do in such an instance?  Suspend the process?  Urge that the party seek advice and information from another source?  Or does the mediator actually recite the law prohibiting usurious loans paid out of welfare income?  Prof. Waldman would advise the usurious party, but admits that they have undoubtedly already done the risk assessment and are prepared to go forward with the risk of being found out.  There are other techniques of course; Prof. Love would ask the lawyer for the usurious party, in the presence of the litigant, whether the terms of the agreement are enforceable.  Experienced small claims court mediators know about consumer protections – should they not bring those provisions to the attention of both parties?  Put otherwise, does a mediator have an obligation to ensure that the provisions of settlement agreements comply with consumer protection laws?  And is the answer different if the mediation takes place by order of the court?  Is there any way that the mediator can ensure that the process has both attributes of informed decision-making and impartiality?

Prof. Press took up a further question:  Are the mediator’s duties different in mediations with unrepresented litigants (such as court-connected civil claims) or pro se disputants (non-court processes such as peer mediation in schools, or community center conflicts)?  Mediation was independent and had its own rules and virtues until it was pulled into the court, at which time things changed.  People who dispute want a resolution; by contrast, litigants who file a case in court seek a legal determination of their rights and remedies.  Mediating the former implicates different duties, perhaps, from mediating the latter.  Parties’ expectations may differ as well.  Do parties entering into a transformative process value the mediator’s legal expertise as much as parties to an evaluative mediation?  She suggested that mediation had objectives of procedural justice, respect, and restoring relationships that participants find preferential to court adjudication, independent of legal concerns with respect to the participants.  If courts no longer directed self-represented litigants to mediation, would this problem no longer be an ethical one?

Judge? Mediator? Pick One!

Tue, 2015-04-21 20:49

There was a time when mediators were seen as alternatives to judges.  Mediators had skills of client-led interest-based consensual resolution; judges had skills in law-led, positional adjudication.  Now, however, many judges seek mediator training and practice mediation, both on and off the bench.  At an intriguing panel at the ABA Dispute Resolution Section Spring Meeting, James Alfini, Nancy Welsh and Sharon Press investigated some implications of this phenomenon.

First, may a judge preside over a case that she has mediated?  Judges are presumably well-versed in likely outcomes of disputes and increasingly can conduct nuanced mediation processes.  But are they then disqualified from adjudicating that same dispute once they have acted as a mediator?  Prof. Alfini noted the gradations between settlement conferences and full-blown confidential mediation processes.  The risk is not only that the judge may learn confidential or inadmissible information — it is also that the parties may feel coerced by behaviors and statements from judges that they would not feel from private mediators.  He cited a Kentucky case, Home Depot v. Saul Subsidiary, in which the court held that there was no basis to recuse a trial judge who had conducted a mediation in a case over which the judge later presided.

Prof. Alfini pointed out that during mediation a judge can learn inadmissible or confidential facts, and develop attitudes toward parties and counsel.  Is this inconsistent with a judge’s duty of impartiality?  Is it distinguishable from facts a judge learns in considering a motion to quash, or attitudes a judge develops during motions and trial?  Prof. Alfini suggested the addition to the Code of Judicial Conduct a provision disqualifying a judge who has acted as a mediator from thereafter acting as a judge.

Prof. Welsh focused on the lawyer rather than the judge – what are the ethical duties of an attorney representing a client in a mediation in which a judge is the neutral?  The duty of candor to a mediator is different from the duty of candor to a court. See Comment 5 of Rule 2.4, stating that, except if appearing before an arbitrator, a lawyer’s statements are governed by 4.1 (statements made to third parties).  Rule 3.3 requires a higher standard before a “tribunal.”  Is this a different standard depending on whether the mediator is a sitting judge?  A presiding judge?  And ALJ?  A retired judge?  Note Comment 1 to Rule 3.3, covering an “ancillary proceeding.”  Is mediation one of these?  See also Rule 1.0(m) – a “tribunal” is something that renders a binding legal judgment.

Prof. Welsh posits the problem that arises if the judge/mediator were to ask what undisclosed documents would show.  Must an attorney respond truthfully?  What experienced mediator would take counsel’s assertions as true, and reliable?  Is the duty owed to the judge’s office or to the judge?  Or to the mediation process?  Or to the court’s process?  She suggests that the objective of the Model Rules is to protect the integrity of the court, and that the duty of candor applies to any court-connected proceeding, including mediation.  This obligation would also apply to court-appointed mediators, in order to protect the integrity of the court and, by extension, the justice system.

Prof. Press previously served as Director of the Florida state court’s dispute resolution program.  The Florida Code of Judicial Conduct has been revised to address the practice of Senior judges and retired judges as private mediations, and in court-ordered mediations.  Requirements of increased mediator disclosure were imposed, including whether a judge has previously presided in a case involving not only counsel, but also their firms.  Last year, further amendments were proposed to go farther in prohibiting senior judges from acting as mediators.  Though the proposal was not accepted, it nevertheless prohibited service as mediator in any district where the senior judge was a presiding judge, and the organizations offering their services.  Restrictions were also placed on advertising that suggest that service as a judge makes a person a better mediator.  Judges may not lend the prestige of the court to their private practice as mediators.  For example, use of the word “judge” may fall afoul of the rule unless it is clearly used not to suggest that the title lends expertise to the individual’s mediator skills.

Prof. Press notes, however, that these rules do not reach former (retired, rather than Senior) judges at all, and questions whether the market for former judges as mediators – or the notion that judges make better mediators than non-judges – will be affected.

One open question:  When a sitting judge “proposes” mediation, what kind of disclosures would be necessary to obtain informed consent, in light of the nuances that regulations impose?

ABA Dispute Resolution Section’s 2015 Spring Meeting

Wed, 2015-03-18 13:38

The annual Spring Conference of the ABA Dispute Resolution Section draws hundreds of ADR practitioners, trainers and teachers from around the world.  This year it will take place in Seattle, Washington, on April 15-18.  The Section has asked that we promote it and encourage folks to attend, which I am pleased to do.  The announcement is below.

ABA Section of Dispute Resolution Spring Conference | April 16-18, 2015 | Seattle, WA
Join dispute resolution colleagues in Seattle for an action-paced event that will educate, challenge and inspire you. Whether you are a seasoned dispute resolution professional seeking to advance your knowledge in conducting a more efficient process for disputants, new to the field of ADR seeking to bring conflict resolution processes in a community setting, or a part-time mediator curious how the latest neuroscience research can advance your understanding of decision making, this spring conference has opportunities for you.

The 90 plus sessions will cover a dizzying array of topics that impact and interest our ADR community – mediation, arbitration, technology, ombuds, government and public policy, and practice development. There are programs for a variety of practice areas including labor and employment, family, and commercial disputes. We have two very different plenary speakers this year – Richard W. Pound, the founding chairman of the World Anti-Doping Agency, who will offer an unique insight into sports doping disputes and the role of ADR in these sometimes high-profile cases, and Professor John Medina, the New York Times bestselling author of “Brain Rules,” who will give an entertaining and thought provoking summary of his research on stress, its impact on decision-making and its relevance to those of us interested in helping parties in distress resolve their disputes.

Register today to earn up to one years’ worth of CLE credit.  Take advantage of the First-Time Attendee special registration rate of $500 or One-Day only registrations rate of $275. Visit the web site for details about programs scheduling, presenters, session descriptions, and hotel and travel:


Ninth Circuit Reminds Us When Courts Intervene — and When They Don’t — in Arbitrations

Sun, 2015-03-15 15:10

The Ninth Circuit Court of Appeals recently issued a writ of mandamus directing a district court to vacate an order disqualifying an arbitrator, while the arbitration was pending.  Its succinct opinion in In re Sussex (No. 14-70158, January 27, 2015) serves as a clear lesson in the limitations of judicial intervention in arbitration.

A group of hundreds of condominium purchasers brought actions (later consolidated) in Nevada state and federal courts claiming fraud and seeking rescission of their purchases.  Certain of these actions were submitted to arbitration under AAA Rules, pursuant to a provision in the purchase and sale agreements.  In February 2010, he AAA appointed Brendan Hare as arbitrator in one arbitration and, eventually, he served in all three consolidated proceedings, the first of which commenced in February 2012.

Hare failed to disclose that he had addressed conferences as a speaker on the topic of financing litigation for investment purposes, and that he had founded a company with a web site to attract investors for this purpose.  Claimants sought disqualification upon hearing these facts , but AAA denied the request after investigation.  Claimants made similar requests for disqualification on other cases, and sought relief from the district court in September 2013.

On December 31, 2013, the district court issued an order granting the relief sought, disqualifying Hare as an arbitrator.  It reasoned that disqualification was warranted because the arbitrations over which he presided were large, involving 385 claimants; that proceedings were at an early stage, prior to discovery; and that claimants would likely prevail in a motion to vacate any award that Hare ultimately issued, on the ground of “evident partiality.”  If the award were vacated, the entire process would need to be repeated, resulting in a waste of time and resources.

The Court of Appeals granted the respondents’ motion for a writ of mandamus ordering the district court to vacate its order, relying mainly on its determination that the court below had acted “in clear error.”  Its analysis of the role for judicial intervention in arbitrations under the Federal; Arbitration Act is memorable:

[A] district court’s authority is generally limited to decisions that bookend the arbitration itself.  Before arbitration begins, the district court has the authority to determine whether there is a valid arbitration agreement between the parties and, if so, whether the current dispute is within its scope.  If the court determines that the arbitration agreement is valid and ‘encompasses the dispute at issue,’ the Act requires the district court to enforce the agreement by ordering the parties to arbitrate their dispute.  The district court’s involvement ordinarily stops at that point.  After a final arbitration award, the parties may petition the district court to affirm the award, or to vacate, modify, or correct it.

The Court of Appeals also concluded that the “district court erred in predicting that an award issued by Hare would likely be vacated because of his ‘evident partiality.'”  Undisclosed business relationships are insufficient for vacatur if they involve “long past, attenuated, or insubstantial connections between a party and an arbitrator,” and here claimants conceded that Hare had no relationship with any party.  Moreover, the mere risk of financial harm is insufficient to justify collateral review, any more in arbitration than in the denial of summary judgment later found erroneous.

In addition to re-affirming the role of courts in the “bookends” or arbitration, In re Sussex is yet another reminder that counsel’s grasping at legal theories, spending time and money to derail private dispute resolution processes, may not be in their clients’ best interests — especially when the clients are the claimants.

New Journal of Online Dispute Resolution

Fri, 2015-03-13 10:01

Ironically, the first issue of the International Journal of Online Dispute Resolution arrived a few weeks ago in hard copy by the US Postal Service.  It is a very welcome addition to the very few serious legal publications that I pay close attention to.

The introduction to volume 1, issue 1, refers to ODR “as a parallel universe blending information technology and dispute resolution schemes and applications,” and later as “a branch of dispute resolution that utilizes technology and artificial intelligence to settle disputes.”  These seem right, and the Journal seems spot-on for those predisposed to following the growth of this important (and no longer new) field.

The masthead features three editors-in-Chief: Daniel Rainey, Ethan Katsh and Mohamed Abdel Wahab.  Its Editorial Board glistens with the Great and the Good of ODR: Nadja Alexander, Jeff Aresty, Colin Rule, Noam Ebner, Ian Macduff, Michael Wolf, and others.  Add to that an Advisory Board including such figures as Mark Appel, Rusty Park, and Nancy Welsh, and you can’t say the project wants for credentials.

Being an interested observer of many years, but by no means a qualified participant in the field, I don’t venture a view on the quality of the articles in this first issue.  I do note that the Journal seems to continue a form of discourse that plagues ADR generally — people interested in a certain aspect of dispute resolution, writing about that aspect, and being read by others interested in that aspect, who then write back about it.

Similar to other ADR proponents, workers and theorists in the ODR arena seldom seem to include in their dialogue those who would like to incorporate ODR in their businesses.  There are many articles and essays by ODR proponents saying that folks should want the product, but not many by folks who say they do want the product.

As I say, this phenomenon is by no means unique to ODR; indeed, many an event sponsored by the estimable ABA Section on Dispute Resolution is organized by, marketed by, attended by, and feature teachers, experts, innovators and service providers in the field rather than users.  But the launch of this fine new Journal piques my hope that, someday soon, I will see an article that doesn’t read “Here is a dandy new capability that should help a lot of users” and instead reads “Here is the kind of capability my company is looking for — can anyone provide it?”

After all, participants in a market are looking for what they need, not what we wish they needed:

Arbitration, Financial Services Disputes, and Derivatives

Fri, 2015-02-27 13:52

James Freeman of Allen & Overy has written a concise, informative and forward-looking article in the IBA’s publication Business Law International that offers a clear-eyed look at the state of arbitrated conflict resolution in the financial services industry and points to the Arbitration Guide recently published by the International Swaps and Derivatives Association (ISDA) as a path to change.

Freeman notes that, distinct from other commercial sectors, the financial services industry has “proven relatively immune to the lure of arbitration,” preferring litigation before national courts, for a variety of reasons.  Despite the absence of a global mechanism for enforcement of judgments, of the type that is offered for the enforcement of arbitral awards via the New York Convention, and despite promises of relative cost savings, efficiency and confidentiality, Freeman cites two predominant concerns favoring litigation of financial disputes.

The first is structural: that arbitrators may be commercially incompetent, that they have fewer procedural assurances, and that their powers may be limited (particularly in granting ex parte relief).  The infrequency of major banks’ refusal to comply with a judgment rendered by a court in a major commercial jurisdiction reinforces the absence of concern about that issue.

The second is conceptual: that arbitration is ill-suited to financial instruments that are intended to be traded.  Can an undertaking to arbitrate disputes, as part of an indenture or bond that is intended to be exchanged, transfer rights or obligations to subsequent purchasers of that instrument?  Can the holder of a security be bound by an agreement to arbitrate that is neither written nor signed by that holder?  In the case of transactions involving consumers, are agreements to arbitrate enforceable in all jurisdictions?

The ISDA Arbitration Guide departs from this set of concerns.  Traditionally ISDA Master Agreements have called for the jurisdiction of the English or New York courts.  Moreover, players in the derivatives and swaps market were largely uninformed of arbitration options, resulting in drafting errors in conforming the various clauses in the Master Agreements (such as service of process).

After a period of consultation, ISDA promulgated the 2013 ISDA Arbitration Guide, which provides a basic overview of the law and practice of international arbitration and provides 11 model clauses designed to be incorporated into a Master Agreement.  These clauses provide for arbitration pursuant to the rules of seven different providers, with seats in seven different venues.  In providing these clauses, the Guide “ensures avoidance of the common drafting errors” and also “incorporates what is essentially a standard arbitration clause for the arbitral institution specified.”   Moreover, a list of options is helpfully provided, to encourage drafters to consider questions of party joinder, consolidation, state players, criteria for arbitrator competence, and other issues.

Freedman concludes that “the Guide is a valuable tool to educate the derivatives markets about the characteristics of international arbitration and the circumstances in which it might best be employed.”  He also concludes that the provision of expert arbitrators (as is the aim of P.R.I.M.E. Finance, for example) might be the single dispositive factor in providing dispute resolution processes that meet the challenges posed by the users.

Many legal and business practitioners have begun to question the prevailing use of attorneys, rather than industry participants, as arbitrators in disputes involving commercial custom or industry practices.  Freeman’s description of the ISDA initiative is particularly tantalizing in that context, as it places commercial disputes before industry peers rather than those learned in law.

ICC International Commercial Mediation Competition

Thu, 2015-02-19 10:38

Professionally, I am not given to bedazzlement.  I am not among those who claim transformative or quasi-spiritual attributes to what (to me) really boils down to the learn-able professional skill of mediating business disputes.  So when friends have reported their experiences attending the ICC International Mediation Competition with tears streaming down their blushing faces, stammering and gushing about how it had changed their lives, I thought I was learning more about them than about the event.

Well, this year I attended for the first time as coach of the New York Law School team.  And… blush blush, gush gush, stammer stammer, stream stream….

This is a remarkable event, measured by any standard.  Here are gathered about 250 well-trained and focused students from 67 business schools and law schools located in six continents, all highly motivated and practiced in certain distinct skills, prominent among them (a) how to listen constructively; (b) how to identify what the other party to a dispute needs; (c) how to use the intervention of a third party to create options that address the identified commercial needs of your client and of the counterparty; and (d) how to recognize when you have obtained your client’s objectives on satisfactory terms.

These are valuable skills in any of us, and I dare say lawyers who regularly practice them distinguish themselves.  But 250 of them gathered in a room?  And they are all 24-30 years old?  And they are happy?  And they are ambitious?  What a zing!

And then you look around and realize that here, acting as judges or coaches or volunteer mediators, is… well, everybody!  Here’s Lela Love from Cardozo, and Thierry Garby from Paris, and Colin Wall from Hong Kong, and Jim Lawrence from Houston.  And over here is Ewa Gmurzynska from Warsaw.  There’s Giovanni De Berti from Milan.  Hal Abramson from Tuoro.  Bill Marsh from London.  Patrick Van Leynseele from Brussels.  This is better than Old Timer’s Day — it’s like you died and went to mediation heaven!

The starry-eyed part, though, came when I watched my own team grow in confidence, competence, perception and skill, almost by the hour — and to see first-hand the accretion of professional opportunity through personal relationships.  They met peers from Lagos:




…and even far-away Houston:

No one was more astonished than we to learn that we had advanced through the preliminary rounds to join the 16 Eighth-Finalists — and then the 8 Quarter-Finalists!  To succeed to that level on the first outing was heady stuff.

But who can measure the impact that these connections and friendships will have on these students’ careers?  Who can quantify the value of being able to call someone in Sao Paulo and re-introduce yourself from that time in Paris in 2015 and ask advice on resolving a dispute in Brazil?

And who can put a number, or a measure, on giving two young lawyers the experience of knowing — not being told, but actually experiencing — that their generation of attorneys includes not just litigators and deal-negotiators, but also a core of trained problem-solvers on every continent — and they know a lot of them already?

Darley Maw, NYLS 2L, and Colin McGeough, NYLS 2L