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.
Even though it's just the middle of summer, we need program proposals by August 22, 2016, for the Section Annual Conference meeting in April 2017 held in San Francisco. All committee members are invited to submit an idea. Just send your proposal in to our Committee’s Cochairs Louis Burke, Tiffani Lee, and Harout Samra. Each proposal should specifically identify how they will incorporate the following components:
(a) engage litigators in improving practical skills
(b) inform litigators of litigation trends and hot topics
(c) include speakers of diverse backgrounds, practice areas and viewpoints
(d) solicit audience engagement
(e) issue a challenge to greater ethical and profession conduct
(f) offer an interesting or entertaining format (i.e., not a lecture by “talking head”)
(g) provide an opportunity to learn from a high profile insider.
NOTE: The ABA does not let us promise any particular speaker will be on any particular program.
The CFPB recently issued a proposed rule for comments that would prohibit mandatory arbitration clauses that deny groups of consumers the option of filing class actions. The Section of Antitrust Laws will sponsor a webinar “CFPB’s Proposed Arbitration Ban--What You Need To Know” on July 20, 2016. Panelists will discuss the pros and cons of the CFPB proposal and the implications for the use of arbitration clauses in other industries. For more information and registration please visit the Event page.
The ADR Committee is very proud to announce the formation of two new Subcommittees: the Women in Dispute Resolution Committee and the Dispute Counseling and Advocacy Committee. Please email the Committee Cochairs (Tiffani Lee, Louis Burke, Harout Samra) if you are interested in joining either of these great new subcommittees.
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.”
CFPB recently issued a proposed rule for comments that would prohibit mandatory arbitration clauses that deny groups of consumers the option of filing class actions. The proposed rule would impose limitations on the use of pre-dispute arbitration agreements by covered providers of consumer financial products and services. The Bureau believes the proposed rule will help them monitor the individual arbitration process and provide insight into whether companies are abusing arbitration or whether the process itself is fair. Of course, the proposed rule has also received much criticism.
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 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 cochairs (Tiffani Lee, Louis Burke, Harout Samra) 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: