Alternative Dispute Resolution Committee
The Alternative Dispute Resolution Committee is concerned with developments and optimum use of all forms of alternative dispute resolution, including arbitration, mediation, summary jury trials, mini-trials, early neutral evaluation, as well as effective settlement and negotiation techniques. Alternative dispute resolution is considered both within the formal litigation process and pre-suit. The committee sponsors numerous programs to enhance the advocate's skills in all dispute resolution procedures because knowledge of ADR techniques is particularly essential for trial lawyers.
According to the Huffington Post, on March 11, 2016, the U.S. Department of Education proposed regulations that would bar pre-dispute arbitration agreements covering for-profit educational institutions.
"The Department of Education tonight released a new draft of regulations on student debt relief, in advance of the third round of rulemaking meetings to be held next week, and in a press release accompanying the proposal the Department appears to take a hard line against the fine-print language that for-profit colleges have been using to force students to resolve their disputes with a school through secretive arbitration proceedings, rather than in court.”
Registration for the Transnational Dispute Management (TDM) Conference on International Commercial Arbitration is now open. This conference, “How International Should International Commercial Arbitration Be?,” will discuss domestic law vs. international standards in interpreting New York Convention articles II.3 and V(2)(b). For more information and registration please visit the TDM Event page.
Registration for the AAA/ICDR Conference on Exploring Critical Issues in Arbitration is now open. This conference will discuss such topics as resolving mass claims through ADR system and access to justice after the arbitral award. For more information and registration please visit the AAA Event page.
Recently Director Richard Cordray of the Consumer Financial Protection Bureau (CFPB) gave a speech at the American Constitution Society as part of the Access to Justice Series. During this speech Director Cordray talked about the effects on consumers of mandatory pre-dispute arbitration clauses and the steps the CFPB is taking to mitigate what they believe are harmful effects of these clauses. For the text of the Director’s speech please visit the CFPB page.
The Federal Industry Regulatory Authority has recently released statistics about its past and present case load. According to the statistics there is a decrease in new case filings compared to December 2014. Also, as in the past, the top two causes of action alleged were breach of fiduciary duty (1,807 cases) and negligence (1,677 cases). For more information, please visit the FINRA website.
Governor Edmund Brown of California recently vetoed a bill (AB 465) passed by the California legislature that would have prohibited the arbitration of claims arising under the state Labor Code in employment agreements. In vetoing the bill, Governor Brown referred to the fact that most studies show that arbitration is faster and less expensive than litigation and that evidence about the outcomes of employee arbitration vs. litigation is unclear. He also noted that California already has many procedural protections for employees in arbitration and that a blanket ban on mandatory arbitration agreements is likely to be in violation of the Federal Arbitration Act and would merely lead to expensive litigation and uncertainty. For more information see Edward Lozowick’s January 15, 2016, Practice Points.
Earlier in October 2015 the Consumer Financial Protection Bureau (CFPB) proposed a rule that will ban arbitration clauses that block group lawsuits so that consumers can take companies to court to seek relief from “free pass” arbitration clauses. For more information on the CFPB proposed changes please visit their webpage.
The American Arbitration Association has revised the AAA’s Construction Arbitration Rules and Mediation Procedures effective July 1, 2015. Among the significant changes is the addition of a mediation step. Subject to the ability of any party to opt out of the mediation process, all cases with claims that exceed $100,000 are expected to proceed to mediation at some point during the arbitration. The updated rules include amendments that directly address preferences of users for a more streamlined, cost-effective, and tightly managed arbitration process that avoids the high costs of litigation.
The National Futures Association reports that it has seen a slight increase in claims for the first half of 2015 compared to last year. NFA received 26 claims as of June 30, 2015. Please visit NFA's website for the most recent statistical data on NFA arbitration filings.
Delaware legislators recently passed the Delaware Rapid Arbitration Act. This Act gives business entities formed in Delaware greater capacity to resolve business disputes in a rapid and efficient manner through voluntary arbitration conducted by expert arbitrators under strict timeliness. To ensure that no person is subject to the Act without his or her express and voluntary consent, the Act precludes its use in cases where there is a danger that vulnerable parties’ rights are at stake. Thus, this Act may not be used to adjudicate controversies between business entities and consumers of their goods and services, or controversies involving persons who have not expressly agreed to arbitrate the matter at issue. This law will go in effect May 4, 2015.
The ADR Committee developed an ambitious plan for speaker presentations, Roundtable discussions, and published materials for the coming year, including practice tips to be published regularly in the ADR newsletter and on the ADR webpage. We also were approached by several other committees interested in partnering with us in making presentations. We would greatly appreciate your participation and assistance in volunteering ideas and helping us prepare upcoming programs.
The ADR newsletter and webpage each continue to receive excellent quarterly evaluations from the ABA. We would really like your help to keep our track record going strong. Please volunteer to write an article or news and development piece—or skip a step and just write something and send it to us. It is a great way to market yourself and to build your ADR practice. If you need ideas for articles, please contact one of the web editors. They will be pleased to send you a list of potential topics.
You can contribute articles and case notes for our website and/or the next issue of our newsletter. Writing an article or case note is not time consuming, raises awareness of ADR issues and relevant cases for your colleagues, and helps market your practice to other practitioners.
Welcome you to Alternative Dispute Resolution Committee’s webpage!
We encourage you to join and be involved in the ADR Committee. We have an ambitious plan for the year ahead and hope that you will be a part of it.
The best way to become more involved and visible within the committee is to join one of our many subcommittees. Just email the Committee’s co-chairs, Louis, Tiffani and Harout, to let us know which subcommittees you are interested in joining. The specific subcommittees are:
- Sound Advice: This committee arranges for podcasts of 5 to 10 minutes on topics of interest
- Roundtable: This committee organizes webinars that feature guest speakers on topics of interest.
- Settlement Counsel
In addition, we consider articles and “news and development” pieces for our quarterly newsletter and website on a rolling basis throughout the year. Please let us know if you are interested in publishing with us.
These are just a few highlights. There is a lot going on in our committee, and we want to encourage you to become an active member. Please reach out to us if you would like to increase your level of involvement or have any great ideas about member benefits we could offer.
We look forward to meeting you!
Louis F. Burke, Tiffani G. Lee and Harout Jack Samra
Cochairs, Alternative Dispute Resolution Committee
Our active subcommittees include:
- Book Task Force
- Settlement Counsel
Find contact information for committee and subcommittee chairs: