Studies of the qualities of a successful mediator include, importantly, the ability to gain the parties’ confidence, is friendly, likeable, “a genuinely nice person”; demonstrates compassion, high integrity, and empathetic listening; manages parties’ expectations and is able to work with differing interests. As chair this past year, Noah Hanft exemplified each of these qualities in … Continued
FAA Transportation Exemption Applied to Intrastate Delivery Drivers The delivery drivers in this case purchased distribution routes by which they buy baked goods and resell and deliver those goods to stores along their routes. Plaintiffs sued alleging that they were misclassified as independent contractors, and the defendants moved to compel arbitration. The district court denied … Continued
Effective September 1, 2022, the American Arbitration Association (AAA) amended its Commercial Arbitration Rules and Mediation Procedures. The amendments 21added two new rules and made changes to a handful of other rules and procedures.1 One of the rules getting a makeover was the Modification of Award Rule, formerly Rule R-50, now Rule R-52. The Modification of … Continued
I. Introduction Under § 16(a) of the Federal Arbitration Act, when a district court denies a motion to compel arbitration, the unsuccessful movant may file an immediate interlocutory appeal. However, until the U.S. Supreme Court’s decision on June 23, 2023 in Coinbase, Inc. v. Bielski, No. 22–105, 599 U.S. __ (2023), the U.S. Courts of Appeal … Continued
An arbitration is typically concluded by the issuance of a final award on the merits. However, in the course of a case, arbitrators may bifurcate the proceedings and issue interim awards to decide separate issues.1 For example, an interim award may be used to issue a merits decision prior to further hearings on damages, or prior … Continued
A highly visible impact of the COVID-19 pandemic on the sphere of sport took place in the Court of Arbitration for Sport (CAS) where employment disputes with athletes included efforts to justify non-performance or early termination of contracts, based on the doctrines of force majeure1 and/or clausula rebus sic stantibus.2 Even though clubs’ reliance on these doctrines in … Continued
Everyone knows that the term “ADR” makes no sense. But we stick with it because there’s no general consensus for a preferable alternative. This article argues that dispute system design (DSD) is a better paradigm that should succeed ADR. Thomas S. Kuhn’s classic book, The Structure of Scientific Revolutions, describes the process of the famous “paradigm … Continued
Partnered by the excellent Danielle Shalov, I spent quite a bit of time during the pandemic training lawyers, including New York State Court staff, basic and advanced mediation skills. And part of that training was always to show them the iceberg—the same iceberg that Peter Robinson used when training me in Pepperdine in 2008. Look, … Continued
There is no real dispute that when court cases are moved from litigation to mediation substantial benefits inure to all concerned. From the perspective of the court system, mediation and resulting settlements in a significant percentage of cases (or claims) help to ease burdens on dockets and court budgets, as well as to winnow out … Continued
In the last two-plus years we, along with colleagues from a variety of fields, have enlisted a number of lawyers in a very unusual project—how to engage in a type of conflict often called grey zone conflict or hybrid warfare. Our conflict management experts have come from a wide array of legal settings ranging from … Continued