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.
The Section of Dispute Resolution will offer a presentation “SCOTUS Has Spoken: Arbitration Clauses in the Wake of DirecTV v. Imburgia" on January 28, 2016. The presenters will discuss the Imburgia decision in conjunction with other related cases and issues related to mandatory arbitration clauses in consumer contract. For background information please see the January 19, 2016, Frank Murray’s Practice Points on this case. For more information and registration please visit the Event page.
Registration for the Section of Dispute Resolution second part of a six part series on mediation is now open. The webinar "What is the Relevance of the Joint Opening Session in Today’s Commercial Mediation Process?" will discuss whether and when to make opening statements and who should make the opening statements. For more information and registration please visit the Event page.
Mitchell L. Marinello and Anthony M. DiLeo will speak on “The Outer Limits of Arbitral Jurisdiction: Who Decides and When?” at the 2016 AAA/ICDR Arbitration Conference in New Orleans. This presentation will discuss the gamut of jurisdictional issues including those relating to non-signatories, class actions, and how issues of res judicata and collateral estoppel are handled post-award.
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.
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.
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.
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: