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.
On February 26, 2015, the Securities and Exchange Commission (SEC) approved a proposed rule change to amend Rule 12100 and 13100 of the Customer and Industry Codes to refine and reorganize the definitions of “non-public” arbitrator and “public” arbitrator. According to the Notice of Filing, dated July 3, 2014, the proposed rule change was designed to address concerns regarding the perceived neutrality of the public arbitrator roster raised by both investor representatives and financial industry representatives.
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.
Registration for the ABA Section of Dispute Resolution panel discussion “Ethics and Professionalism in Mediation: Ethical Issues Faced by Mediators and Advocates” is now open. This panel discussion is the end of a six part mediation series and will cover how to recognize and solve potential ethical issues in the mediation process. For more information and registration please visit the Event page.
Registration for the ABA Section of Dispute Resolution webinar “The All Important Preliminary Arbitration Hearing Essentials, for Both Advocates and Neutrals” is now open. This webinar is part two of a six part arbitration series that will focus on why the preliminary hearing is important. There will also be discussion on issues involving depositions, motions, witness and expert testimony, and the importance of the Case Management Order. For more information and registration please visit the Event page.
Registration for the ABA Annual Meeting being held in Chicago is now open. As of April there are many different topics of interest relating to Alternative Dispute Resolution and Mediation. On Friday July 31, 2015, the Section of Public Contract Law will host “Effective ADR on Federal Construction Project Disputes—What You Need to Know,” and the Young Lawyers Division will host “Behind Closed Doors—An Insider’s View on the Rise of Mediation.” For more information and registration please visit the Event page.
A New FINRA Rule Proposed: Proposed Rule Change to Amend the Codes of Arbitration Procedure Relating to Cancelling or Postponing a Hearing
FINRA filed with the Securities and Exchange Commission (SEC) a proposed rule change to require that parties give more advance notice before cancelling or postponing a hearing, or be assessed a higher late cancellation fee to be paid to the arbitrators.
Illinois has created a mandatory arbitration program for commercial cases in which less than $75,000 is in dispute. The program, which is slated to begin in early 2015, is being organized by Illinois Circuit Court Judge Thomas R. Mulroy. Arbitrators are being paid $300 for a half-day arbitration session, a cost that is being funded by the Illinois Supreme Court. The rules for the program can be found at the court’s web page.
On September 18–20, 2014, the Section of Litigation held its annual Fall Leadership Meeting in Nashville, TN. The ADR Committee was represented by Cochairs Bruce Rubin and Louis Burke, Web Editors Mitchell Marinello and Chris Moore, Eric English, member and Chair of the Settlement Counsel sub-committee, Marnie Huff, member and Chair of the Membership Subcommittee, and Marcos Ramos, member and designee from the Section’s Diverse Leaders Academy. The main purpose of the meeting was to prepare a plan for next year’s activities, including some new initiatives that the Section has encouraged committees to undertake.
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. Potential topics also can be found on our starter list.
The American Arbitration Association (AAA) announced that its website offers an online arbitration and mediation tool called ClauseBuilder, which is designed to assist individuals and organizations in drafting clear and effective arbitration and mediation agreements. The current version of ClauseBuilder deals with commercial arbitration contracts. Future versions in development will address construction, international, and employment contracts.
To get started, one need only visit the AAA site, and then follow the directions in the drop-down menu. You will then be offered templates that an individual or organization can adapt to its current situation. Options include the number of arbitrators desired, any particular qualifications the arbitrator must have, the location of the arbitration, any limitations on discovery, confidentiality terms, and the remedies that are available. After you have constructed your arbitration clause, you can download the clause as a text file, print it, or save it for future use. If users want to revisit the site and rework a clause that was previously created, they can open an AAA account to store their document.
According to the AAA, “ClauseBuilder will provide a quick and efficient, self-guided process for drafting ADR clauses that are customized to parties’ particular contracts and needs.” Time will tell if this new tool will make it easier for parties involved in drafting arbitration and mediation agreements.
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.
Even as the benefits of belonging to the ABA continue to grow, our membership is declining. There are many reasons, chief among them that there are fewer law students. That's why the ABA Section of Litigation is launching a program to send members to law schools to tout the benefits of membership. We're looking for ways to attract newer lawyers to the ADR Committee.
To be sure, newer lawyers will often get to represent clients in arbitrations and mediations, and we have published articles on what to know when you embark on your first one. But what can experienced lawyers, arbitrators, and mediators do beyond writing and speaking about "how to do it?" And should veteran arbitrators and mediators have a monopoly on those roles? If not, how does a newcomer get the name recognition and business opportunities that come with it?
Our committee is looking for ways to help newer lawyers, arbitrators, and mediators. If you have thoughts on this, please let us know. Send an email to Bruce Rubin or Carlos Rodriguez Vidal. Are you aware of any programs that aim at that goal? Are you a mediator who would let someone looking for mediator experience to accompany you in a mediation session? Do any court panels of arbitrators in your jurisdiction have a selection process that might need improvement to increase the odds of opportunities for comparative "rookies"? Are you connected to an arbitration or mediation organization that has targeted the need to include newer arbitrators and mediators?
We are your new committee cochairs. This message will bring you up to date on our activities.
First, we encourage you to join one of the many subcommittees we have. This is the best way to become more involved and more visible within the committee. All you need to do is send an email to Bruce Rubin to indicate which subcommittee or subcommittees you are willing to join. All of our subcommittees relate to arbitration and mediation. The specific subcommittees are:
1. Sound Advice—this committee arranges for podcasts of 5 to 10 minutes on topics of interest
2. Roundtable—this committee organizes, with help from the ABA, webinars that feature guest speakers on topics of interest. The programs typically last an hour
12. Settlement Counsel
Second, we always need articles and “news and development” pieces for our quarterly newsletter and website. Please propose a topic you may want to write about, or pick one from the starter list or our current bar year list and reach Jean Baker, our Publications Subcommittee cochair, or call her at (202) 223-7093. She can let you know if the topic has been taken, and what the ABA publication requirements are.
We look forward to meeting you and working with you.
Bruce Rubin and Carlos Rodriguez-Vidal
Cochairs, Alternative Dispute Resolution Committee
Our active subcommittees include:
- Book Task Force
- Settlement Counsel
Find contact information for committee and subcommittee chairs: